[Title 26 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2022 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          
          
          Title 26

Internal Revenue


________________________

Part 1 (Sec. Sec.  1.1001 to 1.1400)

                         Revised as of April 1, 2022

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2022
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 26:
          Chapter I--Internal Revenue Service, Department of 
          the Treasury (Continued)                                   3
  Finding Aids:
      Table of CFR Titles and Chapters........................    1071
      Alphabetical List of Agencies Appearing in the CFR......    1091
      Table of OMB Control Numbers............................    1101
      List of CFR Sections Affected...........................    1119

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 26 CFR 1.1001-1 
                       refers to title 26, part 
                       1, section 1001-1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2022), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
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instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
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Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not dropped in error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
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to materials already published elsewhere. For an incorporation to be 
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if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
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CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

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the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
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ELECTRONIC SERVICES

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Connect to NARA's website at www.archives.gov/federal-register.
    The eCFR is a regularly updated, unofficial editorial compilation of 
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the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register
    April 1, 2022.







[[Page ix]]



                               THIS TITLE

    Title 26--Internal Revenue is composed of twenty-two volumes. The 
contents of these volumes represent all current regulations codified 
under this title by the Internal Revenue Service, Department of the 
Treasury, as of April 1, 2022. The first fifteen volumes comprise part 1 
(Subchapter A--Income Tax) and are arranged by sections as follows: 
Sec. Sec.  1.0-1.60; Sec. Sec.  1.61-1.139; Sec. Sec.  1.140-1.169; 
Sec. Sec.  1.170-1.300; Sec. Sec.  1.301-1.400; Sec. Sec.  1.401-1.409; 
Sec. Sec.  1.410-1.440; Sec. Sec.  1.441-1.500; Sec. Sec.  1.501-1.640; 
Sec. Sec.  1.641-1.850; Sec. Sec.  1.851-1.907; Sec. Sec.  1.908-1.1000; 
Sec. Sec.  1.1001-1.1400; Sec. Sec.  1.1401-1.1550; and Sec.  1.1551 to 
end of part 1. The sixteenth volume containing parts 2-29, includes the 
remainder of subchapter A and all of Subchapter B--Estate and Gift 
Taxes. The last six volumes contain parts 30-39 (Subchapter C--
Employment Taxes and Collection of Income Tax at Source); parts 40-49; 
parts 50-299 (Subchapter D--Miscellaneous Excise Taxes); parts 300-499 
(Subchapter F--Procedure and Administration); parts 500-599 (Subchapter 
G--Regulations under Tax Conventions); and part 600 to end (Subchapter 
H--Internal Revenue Practice).

    The OMB control numbers for title 26 appear in Sec.  602.101 of this 
chapter. For the convenience of the user, Sec.  602.101 appears in the 
Finding Aids section of the volumes containing parts 1 to 599.

    For this volume, Susannah C. Hurley was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                       TITLE 26--INTERNAL REVENUE




        (This book contains part 1, Sec. Sec.  1.1001 to 1.1400)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Internal Revenue Service, Department of the 
  Treasury (Continued)......................................           1

[[Page 3]]



    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)




  --------------------------------------------------------------------


  Editorial Note: IRS published a document at 45 FR 6088, Jan. 25, 1980, 
deleting statutory sections from their regulations. In Chapter I cross-
references to the deleted material have been changed to the 
corresponding sections of the IRS Code of 1954 or to the appropriate 
regulations sections. When either such change produced a redundancy, the 
cross-reference has been deleted. For further explanation, see 45 FR 
20795, Mar. 31, 1980.

                  SUBCHAPTER A--INCOME TAX (CONTINUED)
Part                                                                Page
1               Income taxes (Continued)....................           5

Supplementary Publications: Internal Revenue Service Looseleaf 
  Regulations System.

  Additional supplementary publications are issued covering Alcohol and 
Tobacco Tax Regulations, and Regulations Under Tax Conventions.

[[Page 5]]



                   SUBCHAPTER A_INCOME TAX (CONTINUED)





PART 1_INCOME TAXES (CONTINUED)--Table of Contents



                  Normal Taxes and Surtaxes (Continued)

                 Gain or Loss on Disposition of Property

       Determination of Amount of and Recognition of Gain or Loss

Sec.
1.1001-1 Computation of gain or loss.
1.1001-2 Discharge of liabilities.
1.1001-3 Modifications of debt instruments.
1.1001-4 Modifications of certain derivative contracts.
1.1001-5 European Monetary Union (conversion to the euro).
1.1001-6 Transition from certain interbank offered rates.
1.1002-1 Sales or exchanges.

                   Basis Rules of General Application

1.1011-1 Adjusted basis.
1.1011-2 Bargain sale to a charitable organization.
1.1012-1 Basis of property.
1.1012-2 Transfers in part a sale and in part a gift.
1.1013-1 Property included in inventory.
1.1014-1 Basis of property acquired from a decedent.
1.1014-2 Property acquired from a decedent.
1.1014-3 Other basis rules.
1.1014-4 Uniformity of basis; adjustment to basis.
1.1014-5 Gain or loss.
1.1014-6 Special rule for adjustments to basis where property is 
          acquired from a decedent prior to his death.
1.1014-7 Example applying rules of Sec. Sec.  1.1014-4 through 1.1014-6 
          to case involving multiple interests.
1.1014-8 Bequest, devise, or inheritance of a remainder interest.
1.1014-9 Special rule with respect to DISC stock.
1.1015-1 Basis of property acquired by gift after December 31, 1920.
1.1015-2 Transfer of property in trust after December 31, 1920.
1.1015-3 Gift or transfer in trust before January 1, 1921.
1.1015-4 Transfers in part a gift and in part a sale.
1.1015-5 Increased basis for gift tax paid.
1.1016-1 Adjustments to basis; scope of section.
1.1016-2 Items properly chargeable to capital account.
1.1016-3 Exhaustion, wear and tear, obsolescence, amortization, and 
          depletion for periods since February 28, 1913.
1.1016-4 Exhaustion, wear and tear, obsolescence, amortization, and 
          depletion; periods during which income was not subject to tax.
1.1016-5 Miscellaneous adjustments to basis.
1.1016-6 Other applicable rules.
1.1016-10 Substituted basis.
1.1017-1 Basis reductions following a discharge of indebtedness.
1.1019-1 Property on which lessee has made improvements.
1.1020-1 Election as to amounts allowed in respect of depreciation, 
          etc., before 1952.
1.1021-1 Sale of annuities.

                       Common Nontaxable Exchanges

1.1031-0 Table of contents.
1.1031(a)-1 Property held for productive use in trade or business or for 
          investment.
1.1031(a)-2 Additional rules for exchanges of personal property.
1.1031(a)-3 Definition of real property.
1.1031(b)-1 Receipt of other property or money in tax-free exchange.
1.1031(b)-2 Safe harbor for qualified intermediaries.
1.1031(c)-1 Nonrecognition of loss.
1.1031(d)-1 Property acquired upon a tax-free exchange.
1.1031(d)-1T Coordination of section 1060 with section 1031 (temporary).
1.1031(d)-2 Treatment of assumption of liabilities.
1.1031(e)-1 Exchange of livestock of different sexes.
1.1031(j)-1 Exchanges of multiple properties.
1.1031(k)-1 Treatment of deferred exchanges.
1.1032-1 Disposition by a corporation of its own capital stock.
1.1032-2 Disposition by a corporation of stock of a controlling 
          corporation in certain triangular reorganizations.
1.1032-3 Disposition of stock or stock options in certain transactions 
          not qualifying under any other nonrecognition provision.
1.1033(a)-1 Involuntary conversions; nonrecognition of gain.
1.1033(a)-2 Involuntary conversion into similar property, into money or 
          into dissimilar property.
1.1033(a)-3 Involuntary conversion of principal residence.
1.1033(b)-1 Basis of property acquired as a result of an involuntary 
          conversion.
1.1033(c)-1 Disposition of excess property within irrigation project 
          deemed to be involuntary conversion.
1.1033(d)-1 Destruction or disposition of livestock because of disease.
1.1033(e)-1 Sale or exchange of livestock solely on account of drought.

[[Page 6]]

1.1033(g)-1 Condemnation of real property held for productive use in 
          trade or business or for investment.
1.1033(h)-1 Effective date.
1.1035-1 Certain exchanges of insurance policies.
1.1036-1 Stock for stock of the same corporation.
1.1037-1 Certain exchanges of United States obligations.
1.1038-1 Reacquisitions of real property in satisfaction of 
          indebtedness.
1.1038-2 Reacquisition and resale of property used as a principal 
          residence.
1.1038-3 Election to have section 1038 apply for taxable years beginning 
          after December 31, 1957.
1.1039-1 Certain sales of low-income housing projects.
1.1041-1T Treatment of transfer of property between spouses or incident 
          to divorce (temporary).
1.1041-2 Redemptions of stock.
1.1042-1T Questions and answers relating to the sales of stock to 
          employee stock ownership plans or certain cooperatives 
          (temporary).
1.1044(a)-1 Time and manner for making election under the Omnibus Budget 
          Reconciliation Act of 1993.
1.1045-1 Application to partnerships.

                              Special Rules

1.1051-1 Basis of property acquired during affiliation.
1.1052-1 Basis of property established by Revenue Act of 1932.
1.1052-2 Basis of property established by Revenue Act of 1934.
1.1052-3 Basis of property established by the Internal Revenue Code of 
          1939.
1.1053-1 Property acquired before March 1, 1913.
1.1054-1 Certain stock of Federal National Mortgage Association.
1.1055-1 General rule with respect to redeemable ground rents.
1.1055-2 Determination of amount realized on the transfer of the right 
          to hold real property subject to liabilities under a 
          redeemable ground rent.
1.1055-3 Basis of real property held subject to liabilities under a 
          redeemable ground rent.
1.1055-4 Basis of redeemable ground rent reserved or created in 
          connection with transfers of real property before April 11, 
          1963.
1.1059(e)-1 Non-pro rata redemptions.
1.1059A-1 Limitation on taxpayer's basis or inventory cost in property 
          imported from related persons.
1.1060-1 Special allocation rules for certain asset acquisitions.
1.1061-0 Table of contents.
1.1061-1 Section 1061 definitions.
1.1061-2 Applicable partnership interests and applicable trades or 
          businesses.
1.1061-3 Exceptions to the definition of an API.
1.1061-4 Section 1061 computations.
1.1061-5 Section 1061(d) transfers to related persons.
1.1061-6 Reporting rules.

                   Changes To Effectuate F.C.C. Policy

1.1071-1 Gain from sale or exchange to effectuate policies of Federal 
          Communications Commission.
1.1071-2 Nature and effect of election.
1.1071-3 Reduction of basis of property pursuant to election under 
          section 1071.
1.1071-4 Manner of election.

                 Exchanges in Obedience to S.E.C. Orders

1.1081-1 Terms used.
1.1081-2 Purpose and scope of exception.
1.1081-3 Exchanges of stock or securities solely for stock or 
          securities.
1.1081-4 Exchanges of property for property by corporations.
1.1081-5 Distribution solely of stock or securities.
1.1081-6 Transfers within system group.
1.1081-7 Sale of stock or securities received upon exchange by members 
          of system group.
1.1081-8 Exchanges in which money or other nonexempt property is 
          received.
1.1081-9 Requirements with respect to order of Securities and Exchange 
          Commission.
1.1081-10 Nonapplication of other provisions of the Internal Revenue 
          Code of 1954.
1.1081-11 Records to be kept and information to be filed with returns.
1.1082-1 Basis for determining gain or loss.
1.1082-2 Basis of property acquired upon exchanges under section 1081 
          (a) or (e).
1.1082-3 Reduction of basis of property by reason of gain not recognized 
          under section 1081(b).
1.1082-4 Basis of property acquired by corporation under section 
          1081(a), 1081(b), or 1081(e) as contribution of capital or 
          surplus, or in consideration for its own stock or securities.
1.1082-5 Basis of property acquired by shareholder upon tax-free 
          distribution under section 1081(c) (1) or (2).
1.1082-6 Basis of property acquired under section 1081(d) in 
          transactions between corporations of the same system group.
1.1083-1 Definitions.

                    Wash Sales of Stock or Securities

1.1091-1 Losses from wash sales of stock or securities.
1.1091-2 Basis of stock or securities acquired in ``wash sales''.
1.1092(b)-1T Coordination of loss deferral rules and wash sale rules 
          (temporary).

[[Page 7]]

1.1092(b)-2T Treatment of holding periods and losses with respect to 
          straddle positions (temporary).
1.1092(b)-3T Mixed straddles; straddle-by-straddle identification under 
          section 1092(b)(2)(A)(i)(I) (Temporary).
1.1092(b)-4T Mixed straddles; mixed straddle account (temporary).
1.1092(b)-5T Definitions (temporary).
1.1092(b)-6 Mixed straddles; accrued gain and loss associated with a 
          position that becomes part of a section 1092(b)(2) identified 
          mixed straddle that is established after August 18, 2014.
1.1092(c)-1 Qualified covered calls.
1.1092(c)-2 Equity options with flexible terms.
1.1092(c)-3 Qualifying over-the-counter options.
1.1092(c)-4 Definitions.
1.1092(d)-1 Definitions and special rules.
1.1092(d)-2 Personal property.

                        CAPITAL GAINS AND LOSSES

                       Treatment of Capital Gains

1.1201-1 Alternative tax.
1.1202-0 Table of contents.
1.1202-1 Deduction for capital gains.
1.1202-2 Qualified small business stock; effect of redemptions.

                       Treatment of Capital Losses

1.1211-1 Limitation on capital losses.
1.1212-1 Capital loss carryovers and carrybacks.

         General Rules for Determining Capital Gains and Losses

1.1221-1 Meaning of terms.
1.1221-2 Hedging transactions.
1.1221-3 Time and manner for electing capital asset treatment for 
          certain self-created musical works.
1.1222-1 Other terms relating to capital gains and losses.
1.1223-1 Determination of period for which capital assets are held.
1.1223-3 Rules relating to the holding periods of partnership interests.

         Special Rules for Determining Capital Gains and Losses

1.1231-1 Gains and losses from the sale or exchange of certain property 
          used in the trade or business.
1.1231-2 Livestock held for draft, breeding, dairy, or sporting 
          purposes.
1.1232-1 Bonds and other evidences of indebtedness; scope of section.
1.1232-2 [Reserved]
1.1232-3 Gain upon sale or exchange of obligations issued at a discount 
          after December 31, 1954.
1.1232-3A Inclusion as interest of original issue discount on certain 
          obligations issued after May 27, 1969.
1.1233-1 Gains and losses from short sales.
1.1233-2 Hedging transactions.
1.1234-1 Options to buy or sell.
1.1234-2 Special rule for grantors of straddles applicable to certain 
          options granted on or before September 1, 1976.
1.1234-3 Special rules for the treatment of grantors of certain options 
          granted after September 1, 1976.
1.1234-4 Hedging transactions.
1.1235-1 Sale or exchange of patents.
1.1235-2 Definition of terms.
1.1236-1 Dealers in securities.
1.1237-1 Real property subdivided for sale.
1.1238-1 Amortization in excess of depreciation.
1.1239-1 Gain from sale or exchange of depreciable property between 
          certain related taxpayers after October 4, 1976.
1.1239-2 Gain from sale or exchange of depreciable property between 
          certain related taxpayers on or before October 4, 1976.
1.1240-1 Capital gains treatment of certain termination payments.
1.1241-1 Cancellation of lease or distributor's agreement.
1.1242-1 Losses on small business investment company stock.
1.1243-1 Loss of small business investment company.
1.1244(a)-1 Loss on small business stock treated as ordinary loss.
1.1244(b)-1 Annual limitation.
1.1244(c)-1 Section 1244 stock defined.
1.1244(c)-2 Small business corporation defined.
1.1244(d)-1 Contributions of property having basis in excess of value.
1.1244(d)-2 Increases in basis of section 1244 stock.
1.1244(d)-3 Stock dividend, recapitalizations, changes in name, etc.
1.1244(d)-4 Net operating loss deduction.
1.1244(e)-1 Records to be kept.
1.1245-1 General rule for treatment of gain from dispositions of certain 
          depreciable property.
1.1245-2 Definition of recomputed basis.
1.1245-3 Definition of section 1245 property.
1.1245-4 Exceptions and limitations.
1.1245-5 Adjustments to basis.
1.1245-6 Relation of section 1245 to other sections.
1.1248-1 Treatment of gain from certain sales or exchanges of stock in 
          certain foreign corporations.
1.1248-2 Earnings and profits attributable to a block of stock in simple 
          cases.
1.1248-3 Earnings and profits attributable to stock in complex cases.
1.1248-4 Limitation on tax applicable to individuals.

[[Page 8]]

1.1248-5 Stock ownership requirements for less developed country 
          corporations.
1.1248-6 Sale or exchange of stock in certain domestic corporations.
1.1248-7 Taxpayer to establish earnings and profits and foreign taxes.
1.1248-8 Earnings and profits attributable to stock following certain 
          non-recognition transactions.
1.1248(f)-1 Certain nonrecognition distributions.
1.1248(f)-2 Exceptions for certain distributions and attribution rules.
1.1248(f)-3 Reasonable cause and effective/applicability dates.
1.1249-1 Gain from certain sales or exchanges of patents, etc., to 
          foreign corporations.
1.1250-1 Gain from dispositions of certain depreciable realty.
1.1250-2 Additional depreciation defined.
1.1250-3 Exceptions and limitations.
1.1250-4 Holding period.
1.1250-5 Property with two or more elements.
1.1251-1 General rule for treatment of gain from disposition of property 
          used in farming where farm losses offset nonfarm income.
1.1251-2 Excess deductions account.
1.1251-3 Definitions relating to section 1251.
1.1251-4 Exceptions and limitations.
1.1252-1 General rule for treatment of gain from disposition of farm 
          land.
1.1252-2 Special rules.
1.1254-0 Table of contents for section 1254 recapture rules.
1.1254-1 Treatment of gain from disposition of natural resource 
          recapture property.
1.1254-2 Exceptions and limitations.
1.1254-3 Section 1254 costs immediately after certain acquisitions.
1.1254-4 Special rules for S corporations and their shareholders.
1.1254-5 Special rules for partnerships and their partners.
1.1254-6 Effective/applicability date.
1.1256(e)-1 Identification of hedging transactions.
1.1256(e)-2 Special rules for syndicates.
1.1258-1 Netting rule for certain conversion transactions.
1.1271-0 Original issue discount; effective date; table of contents.
1.1271-1 Special rules applicable to amounts received on retirement, 
          sale, or exchange of debt instruments.
1.1272-1 Current inclusion of OID in income.
1.1272-2 Treatment of debt instruments purchased at a premium.
1.1272-3 Election by a holder to treat all interest on a debt instrument 
          as OID.
1.1273-1 Definition of OID.
1.1273-2 Determination of issue price and issue date.
1.1274-1 Debt instruments to which section 1274 applies.
1.1274-2 Issue price of debt instruments to which section 1274 applies.
1.1274-3 Potentially abusive situations defined.
1.1274-4 Test rate.
1.1274-5 Assumptions.
1.1274A-1 Special rules for certain transactions where stated principal 
          amount does not exceed $2,800,000.
1.1275-1 Definitions.
1.1275-2 Special rules relating to debt instruments.
1.1275-3 OID information reporting requirements.
1.1275-4 Contingent payment debt instruments.
1.1275-5 Variable rate debt instruments.
1.1275-6 Integration of qualifying debt instruments.
1.1275-7 Inflation-indexed debt instruments.
1.1286-1 Tax treatment of certain stripped bonds and stripped coupons.
1.1286-2 Stripped inflation-protected debt instruments.
1.1287-1 Denial of capital gains treatment for gains on registration-
          required obligations not in registered form.
1.1288-1 Adjustment of applicable Federal rate for tax-exempt 
          obligations.
1.1291-0 Treatment of shareholders of certain passive foreign investment 
          companies; table of contents.
1.1291-1 Taxation of U.S. persons that are shareholders of section 1291 
          funds.
1.1291-9 Deemed dividend election.
1.1291-10 Deemed sale election.
1.1293-0 Table of contents.
1.1293-1 Current taxation of income from qualified electing funds.
1.1294-0 Table of contents.
1.1294-1T Election to extend the time for payment of tax on 
          undistributed earnings of a qualified electing fund 
          (temporary).
1.1295-0 Table of contents.
1.1295-1 Qualified electing funds.
1.1295-3 Retroactive elections.
1.1296-1 Mark to market election for marketable stock.
1.1296-2 Definition of marketable stock.
1.1297-0 Table of contents.
1.1297-1 Definition of passive foreign investment company.
1.1297-2 Special rules regarding look-through subsidiaries and look-
          through partnerships.
1.1297-3 Deemed sale or deemed dividend election by a U.S. person that 
          is a shareholder of a section 1297(e) PFIC.
1.1297-4 Qualifying insurance corporation.
1.1297-5 [Reserved]
1.1297-6 Exception from the definition of passive income for active 
          insurance income.
1.1298-0 Passive foreign investment company--table of contents.

[[Page 9]]

1.1298-1 Section 1298(f) annual reporting requirements for United States 
          persons that are shareholders of a passive foreign investment 
          company.
1.1298-2 Rules for certain corporations changing businesses.
1.1298-3 Deemed sale or deemed dividend election by a U.S. person that 
          is a shareholder of a former PFIC.
1.1298-4 Rules for certain foreign corporations owning stock in 25-
          percent-owned domestic corporations.

                            Income Averaging

1.1301-1 Averaging of farm and fishing income.

        READJUSTMENT OF TAX BETWEEN YEARS AND SPECIAL LIMITATIONS

        Mitigation of Effect of Limitations and Other Provisions

1.1311(a)-1 Introduction.
1.1311(a)-2 Purpose and scope of section 1311.
1.1311(b)-1 Maintenance of an inconsistent position.
1.1311(b)-2 Correction not barred at time of erroneous action.
1.1311(b)-3 Existence of relationship in case of adjustment by way of 
          deficiency assessment.
1.1312-1 Double inclusion of an item of gross income.
1.1312-2 Double allowance of a deduction or credit.
1.1312-3 Double exclusion of an item of gross income.
1.1312-4 Double disallowance of a deduction or credit.
1.1312-5 Correlative deductions and inclusions for trusts or estates and 
          legatees, beneficiaries, or heirs.
1.1312-6 Correlative deductions and credits for certain related 
          corporations.
1.1312-7 Basis of property after erroneous treatment of a prior 
          transaction.
1.1312-8 Law applicable in determination of error.
1.1313(a)-1 Decision by Tax Court or other court as a determination.
1.1313(a)-2 Closing agreement as a determination.
1.1313(a)-3 Final disposition of claim for refund as a determination.
1.1313(a)-4 Agreement pursuant to section 1313(a)(4) as a determination.
1.1313(c)-1 Related taxpayer.
1.1314(a)-1 Ascertainment of amount of adjustment in year of error.
1.1314(a)-2 Adjustment to other barred taxable years.
1.1314(b)-1 Method of adjustment.
1.1314(c)-1 Adjustment unaffected by other items.

       Involuntary Liquidation and Replacement of Lifo Inventories

1.1321-1 Involuntary liquidation of lifo inventories.
1.1321-2 Liquidation and replacement of lifo inventories by acquiring 
          corporations.

                           War Loss Recoveries

1.1331-1 Recoveries in respect of war losses.
1.1332-1 Inclusion in gross income of war loss recoveries.
1.1333-1 Tax adjustment measured by prior benefits.
1.1334-1 Restoration of value of investments.
1.1335-1 Elective method; time and manner of making election and effect 
          thereof.
1.1336-1 Basis of recovered property.
1.1337-1 Determination of tax benefits from allowable deductions.

                             Claim of Right

1.1341-1 Restoration of amounts received or accrued under claim of 
          right.
1.1342-1 Computation of tax where taxpayer recovers substantial amount 
          held by another under claim of right; effective date.

                            Other Limitations

1.1346-1 Recovery of unconstitutional taxes.
1.1347-1 Tax on certain amounts received from the United States.
1.1348-1 Fifty-percent maximum tax on earned income.
1.1348-2 Computation of the fifty-percent maximum tax on earned income.
1.1348-3 Definitions.

           Small Business Corporations and Their Shareholders

1.1361-0 Table of contents.
1.1361-1 S corporation defined.
1.1361-2 Definitions relating to S corporation subsidiaries.
1.1361-3 QSub election.
1.1361-4 Effect of QSub election.
1.1361-5 Termination of QSub election.
1.1361-6 Effective date.
1.1362-0 Table of contents.
1.1362-1 Election to be an S corporation.
1.1362-2 Termination of election.
1.1362-3 Treatment of S termination year.
1.1362-4 Inadvertent terminations and inadvertently invalid elections.
1.1362-5 Election after termination.
1.1362-6 Elections and consents.
1.1362-7 Effective dates.
1.1362-8 Dividends received from affiliated subsidiaries.
1.1363-1 Effect of election on corporation.
1.1363-2 Recapture of LIFO benefits.
1.1366-0 Table of contents.
1.1366-1 Shareholder's share of items of an S corporation.

[[Page 10]]

1.1366-2 Limitations on deduction of passthrough items of an S 
          corporation to its shareholders.
1.1366-3 Treatment of family groups.
1.1366-4 Special rules limiting the passthrough of certain items of an S 
          corporation to its shareholders.
1.1366-5 Effective/applicability date.
1.1367-0 Table of contents.
1.1367-1 Adjustments to basis of shareholder's stock in an S 
          corporation.
1.1367-2 Adjustments to basis of indebtedness to shareholder.
1.1367-3 Effective/Applicability date.
1.1368-0 Table of contents.
1.1368-1 Distributions by S corporations.
1.1368-2 Accumulated adjustments account (AAA).
1.1368-3 Examples.
1.1368-4 Effective date and transition rule.
1.1371-1 Distributions of money by an eligible terminated S corporation.
1.1371-2 Impact of Audit PTTP on ETSC Period.
1.1374-0 Table of contents.
1.1374-1 General rules and definitions.
1.1374-2 Net recognized built-in gain.
1.1374-3 Net unrealized built-in gain.
1.1374-4 Recognized built-in gain or loss.
1.1374-5 Loss carryforwards.
1.1374-6 Credits and credit carryforwards.
1.1374-7 Inventory.
1.1374-8 Section 1374(d)(8) transactions.
1.1374-9 Anti-stuffing rule.
1.1374-10 Effective date and additional rules.
1.1375-1 Tax imposed when passive investment income of corporation 
          having subchapter C earnings and profits exceed 25 percent of 
          gross receipts.
1.1377-0 Table of contents.
1.1377-1 Pro rata share.
1.1377-2 Post-termination transition period.
1.1377-3 Applicability dates.
1.1378-1 Taxable year of S corporation.

             Section 1374 Before the Tax Reform Act of 1986

1.1374-1A Tax imposed on certain capital gains.

                     COOPERATIVES AND THEIR PATRONS

                      Tax Treatment of Cooperatives

1.1381-1 Organizations to which part applies.
1.1381-2 Tax on certain farmers' cooperatives.
1.1382-1 Taxable income of cooperatives; gross income.
1.1382-2 Taxable income of cooperatives; treatment of patronage 
          dividends.
1.1382-3 Taxable income of cooperatives; special deductions for exempt 
          farmers' cooperatives.
1.1382-4 Taxable income of cooperatives; payment period for each taxable 
          year.
1.1382-5 Taxable income of cooperatives; products marketed under pooling 
          arrangements.
1.1382-6 Taxable income of cooperatives; treatment of earnings received 
          after patronage occurred.
1.1382-7 Special rules applicable to cooperative associations exempt 
          from tax before January 1, 1952.
1.1383-1 Computation of tax where cooperative redeems nonqualified 
          written notices of allocation.

             Tax Treatment by Patrons of Patronage Dividends

1.1385-1 Amounts includible in patron's gross income.

                       Definitions; Special Rules

1.1388-1 Definitions and special rules.
1.1394-0 Table of contents.
1.1394-1 Enterprise zone facility bonds.

                   Empowerment Zone Employment Credit

1.1396-1 Qualified zone employees.
1.1397E-1 Qualified zone academy bonds.

              Rules Relating to Individuals' Title 11 Cases

1.1398-1 Treatment of passive activity losses and passive activity 
          credits in individuals' title 11 cases.
1.1398-2 Treatment of section 465 losses in individuals' title 11 cases.
1.1398-3 Treatment of section 121 exclusion in individuals' title 11 
          cases.
1.1400L(b)-1 Additional first year depreciation deduction for qualified 
          New York Liberty Zone property.
1.1400Z2-0 Table of contents.
1.1400Z2(a)-1 Deferring tax on capital gains by investing in opportunity 
          zones.
1.1400Z2(b)-1 Inclusion of gains that have been deferred under section 
          1400Z-2(a).
1.1400Z2(c)-1 Investments held for at least 10 years.
1.1400Z2(d)-1 Qualified opportunity funds and qualified opportunity zone 
          businesses.
1.1400Z2(d)-2 Qualified opportunity zone business property.
1.1400Z2(e)-1 [Reserved]
1.1400Z2(f)-1 Administrative rules--penalties, anti-abuse, etc.

    Authority: 26 U.S.C. 7805, unless otherwise noted.
    Section 1.1001-6 also issued under 26 U.S.C. 148(i), 26 U.S.C. 
988(d), 26 U.S.C. 1275(d), and 26 U.S.C. 7701(l).
    Section 1.1036-1 also issued under 26 U.S.C. 351(g)(4).
    Section 1.1059(e)-1 also issued under 26 U.S.C. 1059 (e)(1) and 
(e)(2).
    Section 1.1060-1 also issued under 26 U.S.C. 1060.

[[Page 11]]

    Section 1.1061-0 added under 26 U.S.C. 1061(f).
    Section 1.1061-1 added under 26 U.S.C. 1061(f).
    Section 1.1061-2 added under 26 U.S.C. 1061(f).
    Section 1.1061-3 added under 26 U.S.C. 1(h)(9) and 1061(f).
    Section 1.1061-4 added under 26 U.S.C. 1061(f).
    Section 1.1061-5 added under 26 U.S.C. 1061(f).
    Section 1.1061-6 added under 26 U.S.C. 1061(f).
    Sections 1.1092(b)-1T and 1.1092(b)-2T also issued under 26 U.S.C. 
1092 (b)(1).
    Section 1.1092(b)-4T also issued under 26 U.S.C. 1092(b)(2).
    Section 1.1092(b)-6 also issued under 26 U.S.C. 1092(b)(1).
    Section 1.1092(b)-6 also issued under 26 U.S.C. 1092(b)(2).
    Section 1.1092(c)-1 also issued under 26 U.S.C. 1092(c)(4)(H).
    Section 1.1092(c)-2 also issued under 26 U.S.C. 1092(c)(4)(H).
    Section 1.1092(c)-3 also issued under 26 U.S.C. 1092(c)(4)(H).
    Section 1.1092(c)-4 also issued under 26 U.S.C. 1092(c)(4)(H).
    Section 1.1092(d)-1 also issued under 26 U.S.C. 1092(b)(1).
    Section 1.1092(d)-2 also issued under 26 U.S.C. 1092(d)(3)(B).
    Section 1.1202-2 is also issued under 26 U.S.C. 1202(k).
    Section 1.1221-2 also issued under 26 U.S.C. 1221(b)(2)(A)(iii), 
(b)(2)(B), and (b)(3); 1502 and 6001.
    Section 1.1244(e)-1 also issued under 26 U.S.C. 1244(e).
    Section 1.1248-8 also issued under 26 U.S.C. 1248(a) and (c)(1) and 
(2).
    Section 1.1254-1 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-2 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-3 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-4 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-5 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-6 also issued under 26 U.S.C. 1254(b).
    Section 1.1271-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1272-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1272-2 also issued under 26 U.S.C. 1275(d).
    Section 1.1272-3 also issued under 26 U.S.C. 1275(d).
    Section 1.1273-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1273-2 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-2 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-3 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-4 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-5 also issued under 26 U.S.C. 1275(d).
    Section 1.1274A-1 also issued under 26 U.S.C. 1274A(e) and 26 U.S.C. 
1275(d).
    Section 1.1275-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-2 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-3 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-4 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-5 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-6 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-7 also issued under 26 U.S.C. 1275(d).
    Section 1.1286-1 also issued under 26 U.S.C. 1275(D) and 1286(f).
    Section 1.1286-2 also issued under 26 U.S.C. 1286(f).
    Section 1.1287-1 also issued under 26 U.S.C. 165 (j)(3).
    Section 1.1291-1 also issued under 26 U.S.C. 1291.
    Section 1.1291-1 also issued under 26 U.S.C. 1298(a) and (g).
    Section 1.1291-9, also issued under 26 U.S.C. 1298(a) and (g).
    Section 1.1298-1 also issued under 26 U.S.C. 1298(f).
    Section 1.1291-9 also issued under 26 U.S.C. 1291(d)(2).
    Section 1.1291-10 also issued under 26 U.S.C. 1291(d)(2).
    Section 1.1293-1 also issued under 26 U.S.C. 1293.
    Section 1.1294-1T also issued under 26 U.S.C. 1294.
    Section 1.1295-1 also issued under 26 U.S.C. 1295.
    Section 1.1295-3 also issued under 26 U.S.C. 1295.
    Section 1.1296-1 also issued under 26 U.S.C. 1296(g) and 26 U.S.C. 
1298(f).
    Section 1.1296(e)-1 also issued under 26 U.S.C. 1296(e).
    Section 1.1297-1 also issued under 26 U.S.C. 1298(g).
    Section 1.1297-2 also issued under 26 U.S.C. 1298(g).
    Section 1.1297-3T also issued under 26 U.S.C. 1297(b)(1).
    Section 1.1297-4 also issued under 26 U.S.C. 1297(b)(2)(B) and 
1298(g).
    Section 1.1297-5 also issued under 26 U.S.C. 1297(b)(2)(B) and 
1298(g).

[[Page 12]]

    Section 1.1297-6 also issued under 26 U.S.C. 1297(b)(2)(B) and 
1298(g).
    Section 1.1298-1T also issued under 26 U.S.C. 1298(f) and (g).
    Section 1.1298-2 also issued under 26 U.S.C. 1298(b)(3) and (g).
    Section 1.1298-4 also issued under 26 U.S.C. 1298(g).
    Section 1.1301-1 also issued under 26 U.S.C. 1301(c).
    Section 1.1301-1T also issued under 26 U.S.C. 1301(c).
    Section 1.1361-1(j) (6), (10) and (11) also issued under 26 U.S.C. 
1361(d)(2)(B)(iii).
    Section 1.1361-1(l) also issued under 26 U.S.C. 1361(c)(5)(C).
    Sections 1.1362-1, 1.1362-2, 1.1362-3, 1.1362-4, 1.1362-5, 1.1362-6, 
1.1362-7, and 1.1363-1 also issued under 26 U.S.C. 1377.
    Section 1.1363-2 also issued under 26 U.S.C. 337(d).
    Section 1.1368-1(f) and (g) also issued under 26 U.S.C. 1377(c).
    Section 1.1368-2(b) also issued under 26 U.S.C. 1368(c).
    Section 1.1374-1 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-2 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-3 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-4 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-5 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-6 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-7 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-8 also issued under 26 U.S.C. 337(d) and 1374(e).
    Section 1.1374-8 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-8T also issued under 26 U.S.C. 337(d) and 1374(e).
    Section 1.1374-9 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-10 also issued under 26 U.S.C. 337(d) and 1374(e).
    Section 1.1374-10 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-10T also issued under 26 U.S.C. 337(d) and 1374(e).
    Section 1.1377-1 also issued under 26 U.S.C. 1377(a)(2) and (c).
    Section 1.1394-1 also issued under 26 U.S.C. 1397D.
    Section 1.1396-1 also issued under 26 U.S.C. 1397D.
    Section 1.1397E-1 also issued under 26 U.S.C. 1397E.
    Section 1.1400Z2(a)-1 also issued under 26 U.S.C. 1400Z-2(e)(4).
    Section 1.1400Z2(b)-1 also issued under 26 U.S.C. 1400Z-2(e)(4).
    Section 1.1400Z2(c)-1 also issued under 26 U.S.C. 1400Z-2(e)(4).
    Section 1.1400Z2(d)-1 also issued under 26 U.S.C. 1400Z-2(e)(4).
    Section 1.1400Z2(d)-2 also issued under 26 U.S.C. 1400Z-2(e)(4).
    Section 1.1400Z2(f)-1 also issued under 26 U.S.C. 1400Z-2(e)(4).

    Source: T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 
1960, unless otherwise noted.

                 GAIN OR LOSS ON DISPOSITION OF PROPERTY

       Determination of Amount of and Recognition of Gain or Loss



Sec.  1.1001-1  Computation of gain or loss.

    (a) General rule. Except as otherwise provided in subtitle A of the 
Code, the gain or loss realized from the conversion of property into 
cash, or from the exchange of property for other property differing 
materially either in kind or in extent, is treated as income or as loss 
sustained. The amount realized from a sale or other disposition of 
property is the sum of any money received plus the fair market value of 
any property (other than money) received. The fair market value of 
property is a question of fact, but only in rare and extraordinary cases 
will property be considered to have no fair market value. The general 
method of computing such gain or loss is prescribed by section 1001 (a) 
through (d) which contemplates that from the amount realized upon the 
sale or exchange there shall be withdrawn a sum sufficient to restore 
the adjusted basis prescribed by section 1011 and the regulations 
thereunder (i.e., the cost or other basis adjusted for receipts, 
expenditures, losses, allowances, and other items chargeable against and 
applicable to such cost or other basis). The amount which remains after 
the adjusted basis has been restored to the taxpayer constitutes the 
realized gain. If the amount realized upon the sale or exchange is 
insufficient to restore to the taxpayer the adjusted basis of the 
property, a loss is sustained to the extent of the difference between 
such adjusted basis and the amount realized. The basis may be different 
depending upon whether gain or loss is being computed. For example, see 
section 1015(a) and the regulations thereunder. Section 1001(e) and 
paragraph (f) of this section

[[Page 13]]

prescribe the method of computing gain or loss upon the sale or other 
disposition of a term interest in property the adjusted basis (or a 
portion) of which is determined pursuant, or by reference, to section 
1014 (relating to the basis of property acquired from a decedent), 
section 1015 (relating to the basis of property acquired by gift or by a 
transfer in trust), or section 1022 (relating to the basis of property 
acquired from certain decedents who died in 2010).
    (b) Real estate taxes as amounts received. (1) Section 1001(b) and 
section 1012 state rules applicable in making an adjustment upon a sale 
of real property with respect to the real property taxes apportioned 
between seller and purchaser under section 164(d). Thus, if the seller 
pays (or agrees to pay) real property taxes attributable to the real 
property tax year in which the sale occurs, he shall not take into 
account, in determining the amount realized from the sale under section 
1001(b), any amount received as reimbursement for taxes which are 
treated under section 164(d) as imposed upon the purchaser. Similarly, 
in computing the cost of the property under section 1012, the purchaser 
shall not take into account any amount paid to the seller as 
reimbursement for real property taxes which are treated under section 
164(d) as imposed upon the purchaser. These rules apply whether or not 
the contract of sale calls for the purchaser to reimburse the seller for 
such real property taxes paid or to be paid by the seller.
    (2) On the other hand, if the purchaser pays (or is to pay) an 
amount representing real property taxes which are treated under section 
164(d) as imposed upon the seller, that amount shall be taken into 
account both in determining the amount realized from the sale under 
section 1001(b) and in computing the cost of the property under section 
1012. It is immaterial whether or not the contract of sale specifies 
that the sale price has been reduced by, or is in any way intended to 
reflect, the taxes allocable to the seller. See also paragraph (b) of 
Sec.  1.1012-1.
    (3) Subparagraph (1) of this paragraph shall not apply to a seller 
who, in a taxable year prior to the taxable year of sale, pays an amount 
representing real property taxes which are treated under section 164(d) 
as imposed on the purchaser, if such seller has elected to capitalize 
such amount in accordance with section 266 and the regulations 
thereunder (relating to election to capitalize certain carrying charges 
and taxes).
    (4) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. Assume that the contract price on the sale of a parcel of 
real estate is $50,000 and that real property taxes thereon in the 
amount of $1,000 for the real property tax year in which occurred the 
date of sale were previously paid by the seller. Assume further that 
$750 of the taxes are treated under section 164(d) as imposed upon the 
purchaser and that he reimburses the seller in that amount in addition 
to the contract price. The amount realized by the seller is $50,000. 
Similarly, $50,000 is the purchaser's cost. If, in this example, the 
purchaser made no payment other than the contract price of $50,000, the 
amount realized by the seller would be $49,250, since the sales price 
would be deemed to include $750 paid to the seller in reimbursement for 
real property taxes imposed upon the purchaser. Similarly, $49,250 would 
be the purchaser's cost.
    Example 2. Assume that the purchaser in example (1), above, paid all 
of the real property taxes. Assume further that $250 of the taxes are 
treated under section 164(d) as imposed upon the seller. The amount 
realized by the seller is $50,250. Similarly, $50,250 is the purchaser's 
cost, regardless of the taxable year in which the purchaser makes actual 
payment of the taxes.
    Example 3. Assume that the seller described in the first part of 
example (1), above, paid the real property taxes of $1,000 in the 
taxable year prior to the taxable year of sale and elected under section 
266 to capitalize the $1,000 of taxes. In such a case, the amount 
realized is $50,750. Moreover, regardless of whether the seller elected 
to capitalize the real property taxes, the purchaser in that case could 
elect under section 266 to capitalize the $750 of taxes treated under 
section 164(d) as imposed upon him, in which case his adjusted basis 
would be $50,750 (cost of $50,000 plus capitalized taxes of $570).

    (c) Other rules. (1) Even though property is not sold or otherwise 
disposed of, gain is realized if the sum of all the amounts received 
which are required by section 1016 and other applicable provisions of 
subtitle A of the Code to be applied against the basis of the property 
exceeds such basis. Except as

[[Page 14]]

otherwise provided in section 301(c)(3)(B) with respect to distributions 
out of increase in value of property accrued prior to March 1, 1913, 
such gain is includible in gross income under section 61 as ``income 
from whatever source derived''. On the other hand, a loss is not 
ordinarily sustained prior to the sale or other disposition of the 
property, for the reason that until such sale or other disposition 
occurs there remains the possibility that the taxpayer may recover or 
recoup the adjusted basis of the property. Until some identifiable event 
fixes the actual sustaining of a loss and the amount thereof, it is not 
taken into account.
    (2) The provisions of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example: A, an individual on a calendar year basis, purchased 
certain shares of stock subsequent to February 28, 1913, for $10,000. On 
January 1, 1954, A's adjusted basis for the stock had been reduced to 
$1,000 by reason of receipts and distributions described in sections 
1016(a)(1) and 1016(a)(4). He received in 1954 a further distribution of 
$5,000, being a distribution covered by section 1016(a)(4), other than a 
distribution out of increase of value of property accrued prior to March 
1, 1913. This distribution applied against the adjusted basis as 
required by section 1016(a)(4) exceeds that basis by $4,000. The $4,000 
excess is a gain realized by A in 1954 and is includible in gross income 
in his return for that calendar year. In computing gain from the stock, 
as in adjusting basis, no distinction is made between items of receipts 
or distributions described in section 1016. If A sells the stock in 1955 
for $5,000, he realizes in 1955 a gain of $5,000, since the adjusted 
basis of the stock for the purpose of computing gain or loss from the 
sale is zero.

    (d) Installment sales. In the case of property sold on the 
installment plan, special rules for the taxation of the gain are 
prescribed in section 453.
    (e) Transfers in part a sale and in part a gift. (1) Where a 
transfer of property is in part a sale and in part a gift, the 
transferor has a gain to the extent that the amount realized by him 
exceeds his adjusted basis in the property. However, no loss is 
sustained on such a transfer if the amount realized is less than the 
adjusted basis. For the determination of basis of property in the hands 
of the transferee, see Sec.  1.1015-4. For the allocation of the 
adjusted basis of property in the case of a bargain sale to a charitable 
organization, see Sec.  1.1011-2.
    (2) Examples. The provisions of subparagraph (1) may be illustrated 
by the following examples:

    Example 1. A transfers property to his son for $60,000. Such 
property in the hands of A has an adjusted basis of $30,000 (and a fair 
market value of $90,000). A's gain is $30,000, the excess of $60,000, 
the amount realized, over the adjusted basis, $30,000. He has made a 
gift of $30,000, the excess of $90,000, the fair market value, over the 
amount realized, $60,000.
    Example 2. A transfers property to his son for $30,000. Such 
property in the hands of A has an adjusted basis of $60,000 (and a fair 
market value of $90,000). A has no gain or loss, and has made a gift of 
$60,000, the excess of $90,000, the fair market value, over the amount 
realized, $30,000.
    Example 3. A transfers property to his son for $30,000. Such 
property in A's hands has an adjusted basis of $30,000 (and a fair 
market value of $60,000). A has no gain and has made a gift of $30,000, 
the excess of $60,000, the fair market value, over the amount realized, 
$30,000.
    Example 4. A transfers property to his son for $30,000. Such 
property in A's hands has an adjusted basis of $90,000 (and a fair 
market value of $60,000). A has sustained no loss, and has made a gift 
of $30,000, the excess of $60,000, the fair market value, over the 
amount realized, $30,000.

    (f) Sale or other disposition of a term interest in property--(1) 
General rule. Except as otherwise provided in paragraph (f)(3) of this 
section, for purposes of determining gain or loss from the sale or other 
disposition after October 9, 1969, of a term interest in property (as 
defined in paragraph (f)(2) of this section), a taxpayer shall not take 
into account that portion of the adjusted basis of such interest that is 
determined pursuant, or by reference, to section 1014 (relating to the 
basis of property acquired from a decedent), section 1015 (relating to 
the basis of property acquired by gift or by a transfer in trust), or 
section 1022 (relating to the basis of property acquired from certain 
decedents who died in 2010) to the extent that such adjusted basis is a 
portion of the adjusted uniform basis of the entire property (as defined 
in Sec.  1.1014-5). Where a term interest in property is transferred to 
a corporation in connection with a transaction to which section 351 
applies and the adjusted basis of the term interest:

[[Page 15]]

    (i) Is determined pursuant to sections 1014, 1015, or 1022; and
    (ii) Is also a portion of the adjusted uniform basis of the entire 
property, a subsequent sale or other disposition of such term interest 
by the corporation will be subject to the provisions of section 1001(e) 
and this paragraph (f) to the extent that the basis of the term interest 
so sold or otherwise disposed of is determined by reference to its basis 
in the hands of the transferor as provided by section 362(a). See 
paragraph (f)(2) of this section for rules relating to the 
characterization of stock received by the transferor of a term interest 
in property in connection with a transaction to which section 351 
applies. That portion of the adjusted uniform basis of the entire 
property that is assignable to such interest at the time of its sale or 
other disposition shall be determined under the rules provided in Sec.  
1.1014-5. Thus, gain or loss realized from a sale or other disposition 
of a term interest in property shall be determined by comparing the 
amount of the proceeds of such sale with that part of the adjusted basis 
of such interest that is not a portion of the adjusted uniform basis of 
the entire property.
    (2) Term interest defined. For purposes of section 1001(e) and this 
paragraph, a term interest in property means--
    (i) A life interest in property,
    (ii) An interest in property for a term of years, or
    (iii) An income interest in a trust.

Generally, subdivisions (i), (ii), and (iii) refer to an interest, 
present or future, in the income from property or the right to use 
property which will terminate or fail on the lapse of time, on the 
occurrence of an event or contingency, or on the failure of an event or 
contingency to occur. Such divisions do not refer to remainder or 
reversionary interests in the property itself or other interests in the 
property which will ripen into ownership of the entire property upon 
termination or failure of a preceding term interest. A term interest in 
property also includes any property received upon a sale or other 
disposition of a life interest in property, an interest in property for 
a term of years, or an income interest in a trust by the original holder 
of such interest, but only to the extent that the adjusted basis of the 
property received is determined by reference to the adjusted basis of 
the term interest so transferred.
    (3) Exception. Paragraph (1) of section 1001(e) and subparagraph (1) 
of this paragraph shall not apply to a sale or other disposition of a 
term interest in property as a part of a single transaction in which the 
entire interest in the property is transferred to a third person or to 
two or more other persons, including persons who acquire such entire 
interest as joint tenants, tenants by the entirety, or tenants in 
common. See Sec.  1.1014-5 for computation of gain or loss upon such a 
sale or other disposition where the property has been acquired from a 
decedent or by gift or transfer in trust.
    (4) Illustrations. For examples illustrating the application of this 
paragraph, see paragraph (d) of Sec.  1.1014-5.
    (g) Debt instruments issued in exchange for property--(1) In 
general. If a debt instrument is issued in exchange for property, the 
amount realized attributable to the debt instrument is the issue price 
of the debt instrument as determined under Sec.  1.1273-2 or Sec.  
1.1274-2, whichever is applicable. If, however, the issue price of the 
debt instrument is determined under section 1273(b)(4), the amount 
realized attributable to the debt instrument is its stated principal 
amount reduced by any unstated interest (as determined under section 
483).
    (2) Certain debt instruments that provide for contingent payments--
(i) In general. Paragraph (g)(1) of this section does not apply to a 
debt instrument subject to either Sec.  1.483-4 or Sec.  1.1275-4(c) 
(certain contingent payment debt instruments issued for nonpublicly 
traded property).
    (ii) Special rule to determine amount realized. If a debt instrument 
subject to Sec.  1.1275-4(c) is issued in exchange for property, and the 
income from the exchange is not reported under the installment method of 
section 453, the amount realized attributable to the debt instrument is 
the issue price of the debt instrument as determined under Sec.  1.1274-
2(g), increased by the fair market value of the contingent payments 
payable on the debt instrument. If a debt instrument subject to Sec.  
1.483-

[[Page 16]]

4 is issued in exchange for property, and the income from the exchange 
is not reported under the installment method of section 453, the amount 
realized attributable to the debt instrument is its stated principal 
amount, reduced by any unstated interest (as determined under section 
483), and increased by the fair market value of the contingent payments 
payable on the debt instrument. This paragraph (g)(2)(ii), however, does 
not apply to a debt instrument if the fair market value of the 
contingent payments is not reasonably ascertainable. Only in rare and 
extraordinary cases will the fair market value of the contingent 
payments be treated as not reasonably ascertainable.
    (3) Coordination with section 453. If a debt instrument is issued in 
exchange for property, and the income from the exchange is not reported 
under the installment method of section 453, this paragraph (g) applies 
rather than Sec.  15a.453-1(d)(2) to determine the taxpayer's amount 
realized attributable to the debt instrument.
    (4) Effective date. This paragraph (g) applies to sales or exchanges 
that occur on or after August 13, 1996.
    (h) Severances of trusts--(1) In general. The severance of a trust 
(including without limitation a severance that meets the requirements of 
Sec.  26.2642-6 or of Sec.  26.2654-1(b) of this chapter) is not an 
exchange of property for other property differing materially either in 
kind or in extent if--
    (i) An applicable state statute or the governing instrument 
authorizes or directs the trustee to sever the trust; and
    (ii) Any non-pro rata funding of the separate trusts resulting from 
the severance (including non-pro rata funding as described in Sec.  
26.2642-6(d)(4) or Sec.  26.2654-1(b)(1)(ii)(C) of this chapter), 
whether mandatory or in the discretion of the trustee, is authorized by 
an applicable state statute or the governing instrument.
    (2) Effective/applicability date. This paragraph (h) applies to 
severances occurring on or after August 2, 2007. Taxpayers may apply 
this paragraph (h) to severances occurring on or after August 24, 2004, 
and before August 2, 2007.
    (i) Effective/applicability date. Except as provided in paragraphs 
(g) and (h) of this section, this section applies on and after January 
19, 2017. For rules before January 19, 2017, see Sec.  1.1001-1 as 
contained in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 7142, 36 FR 
18950, Sept. 24, 1971; T.D. 7207, 37 FR 20797, Oct. 5, 1972; T.D. 7213, 
37 FR 21992, Oct. 18, 1972; T.D. 8517, 59 FR 4807, Feb. 2, 1994; T.D. 
8674, 61 FR 30139, June 14, 1996; T.D. 9348, 72 FR 42293, Aug. 2, 2007; 
T.D. 9729, 80 FR 48250, Aug. 12, 2015; T.D. 9811, 82 FR 6240, Jan. 19, 
2017]



Sec.  1.1001-2  Discharge of liabilities.

    (a) Inclusion in amount realized--(1) In general. Except as provided 
in paragraph (a) (2) and (3) of this section, the amount realized from a 
sale or other disposition of property includes the amount of liabilities 
from which the transferor is discharged as a result of the sale or 
disposition.
    (2) Discharge of indebtedness. The amount realized on a sale or 
other disposition of property that secures a recourse liability does not 
include amounts that are (or would be if realized and recognized) income 
from the discharge of indebtedness under section 61(a)(12). For 
situations where amounts arising from the discharge of indebtedness are 
not realized and recognized, see section 108 and Sec.  1.61-12(b)(1).
    (3) Liability incurred on acquisition. In the case of a liability 
incurred by reason of the acquisition of the property, this section does 
not apply to the extent that such liability was not taken into account 
in determining the transferor's basis for such property.
    (4) Special rules. For purposes of this section--
    (i) The sale or other disposition of property that secures a 
nonrecourse liability discharges the transferor from the liability;
    (ii) The sale or other disposition of property that secures a 
recourse liability discharges the transferor from the liability if 
another person agrees to pay the liability (whether or not the 
transferor is in fact released from liability);
    (iii) A disposition of property includes a gift of the property or a 
transfer of the property in satisfaction of liabilities to which it is 
subject;

[[Page 17]]

    (iv) Contributions and distributions of property between a partner 
and a partnership are not sales or other dispositions of property; and
    (v) The liabilities from which a transferor is discharged as a 
result of the sale or disposition of a partnership interest include the 
transferor's share of the liabilities of the partnership.
    (b) Effect of fair market value of security. The fair market value 
of the security at the time of sale or disposition is not relevant for 
purposes of determining under paragraph (a) of this section the amount 
of liabilities from which the taxpayer is discharged or treated as 
discharged. Thus, the fact that the fair market value of the property is 
less than the amount of the liabilities it secures does not prevent the 
full amount of those liabilities from being treated as money received 
from the sale or other disposition of the property. However, see 
paragraph (a)(2) of this section for a rule relating to certain income 
from discharge of indebtedness.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples. In each example assume the taxpayer uses the 
cash receipts and disbursements method of accounting, makes a return on 
the basis of the calendar year, and sells or disposes of all property 
which is security for a given liability.

    Example 1. In 1976 A purchases an asset for $10,000. A pays the 
seller $1,000 in cash and signs a note payable to the seller for $9,000. 
A is personally liable for repayment with the seller having full 
recourse in the event of default. In addition, the asset which was 
purchased is pledged as security. During the years 1976 and 1977, A 
takes depreciation deductions on the asset in the amount of $3,100. 
During this same time period A reduces the outstanding principal on the 
note to $7,600. At the beginning of 1978 A sells the asset. The buyer 
pays A $1,600 in cash and assumes personal liability for the $7,600 
outstanding liability. A becomes secondarily liable for repayment of the 
liability. A's amount realized is $9,200 ($1,600 + $7,600). Since A's 
adjusted basis in the asset is $6,900 ($10,000 - $3,100) A realizes a 
gain of $2,300 ($9,200 - $6,900).
    Example 2. Assume the same facts as in example (1) except that A is 
not personally liable on the $9,000 note given to the seller and in the 
event of default the seller's only recourse is to the asset. In 
addition, on the sale of the asset by A, the purchaser takes the asset 
subject to the liability. Nevertheless, A's amount realized is $9,200 
and A's gain realized is $2,300 on the sale.
    Example 3. In 1975 L becomes a limited partner in partnership GL. L 
contributes $10,000 in cash to GL and L's distributive share of 
partnership income and loss is 10 percent. L is not entitled to receive 
any guaranteed payments. In 1978 M purchases L's entire interest in 
partnership GL. At the time of the sale L's adjusted basis in the 
partnership interest is $20,000. At that time L's proportionate share of 
liabilities, of which no partner has assumed personal liability, is 
$15,000. M pays $10,000 in cash for L's interest in the partnership. 
Under section 752(d) and this section, L's share of partnership 
liabilities, $15,000, is treated as money received. Accordingly, L's 
amount realized on the sale of the partnership interest is $25,000 
($10,000 + $15,000). L's gain realized on the sale is $5,000 ($25,000 - 
$20,000).
    Example 4. In 1976 B becomes a limited partner in partnership BG. In 
1978 B contributes B's entire interest in BG to a charitable 
organization described in section 170(c). At the time of the 
contribution all of the partnership liabilities are liabilities for 
which neither B nor G has assumed any personal liability and B's 
proportionate share of which is $9,000. The charitable organization does 
not pay any cash or other property to B, but takes the partnership 
interest subject to the $9,000 of liabilities. Assume that the 
contribution is treated as a bargain sale to a charitable organization 
and that under section 1011(b) $3,000 is determined to be the portion of 
B's basis in the partnership interest allocable to the sale. Under 
section 752(d) and this section, the $9,000 of liabilities is treated by 
B as money received, thereby making B's amount realized $9,000. B's gain 
realized is $6,000 ($9,000 - $3,000).
    Example 5. In 1975 C, an individual, creates T, an irrevocable 
trust. Due to certain powers expressly retained by C, T is a ``grantor 
trust'' for purposes of subpart E of part 1 of subchapter J of the code 
and therefore C is treated as the owner of the entire trust. T purchases 
an interest in P, a partnership. C, as owner of T, deducts the 
distributive share of partnership losses attributable to the partnership 
interest held by T. In 1978, when the adjusted basis of the partnership 
interest held by T is $1,200, C renounces the powers previously and 
expressly retained that initially resulted in T being classified as a 
grantor trust. Consequently, T ceases to be a grantor trust and C is no 
longer considered to be the owner of the trust. At the time of the 
renunciation all of P's liabilities are liabilities on which none of the 
partners have assumed any personal liability and the proportionate share 
of which of the interest held by T is $11,000. Since prior to the 
renunciation C was the owner of the entire trust, C was considered the 
owner of all the trust

[[Page 18]]

property for Federal income tax purposes, including the partnership 
interest. Since C was considered to be the owner of the partnership 
interest, C not T, was considered to be the partner in P during the time 
T was a ``grantor trust''. However, at the time C renounced the powers 
that gave rise to T's classification as a grantor trust, T no longer 
qualified as a grantor trust with the result that C was no longer 
considered to be the owner of the trust and trust property for Federal 
income tax purposes. Consequently, at that time, C is considered to have 
transferred ownership of the interest in P to T, now a separate taxable 
entity, independent of its grantor C. On the transfer, C's share of 
partnership liabilities ($11,000) is treated as money received. 
Accordingly, C's amount realized is $11,000 and C's gain realized is 
$9,800 ($11,000 - $1,200).
    Example 6. In 1977 D purchases an asset for $7,500. D pays the 
seller $1,500 in cash and signs a note payable to the seller for $6,000. 
D is not personally liable for repayment but pledges as security the 
newly purchased asset. In the event of default, the seller's only 
recourse is to the asset. During the years 1977 and 1978 D takes 
depreciation deductions on the asset totaling $4,200 thereby reducing 
D's basis in the asset to $3,300 ($7,500 - $4,200). In 1979 D transfers 
the asset to a trust which is not a ``grantor trust'' for purposes of 
subpart E of part 1 of subchapter J of the Code. Therefore D is not 
treated as the owner of the trust. The trust takes the asset subject to 
the liability and in addition pays D $750 in cash. Prior to the transfer 
D had reduced the amount outstanding on the liability to $4,700. D's 
amount realized on the transfer is $5,450 ($4,700 + $750). Since D's 
adjusted basis is $3,300, D's gain realized is $2,150 ($5,450 - $3,300).
    Example 7. In 1974 E purchases a herd of cattle for breeding 
purposes. The purchase price is $20,000 consisting of $1,000 cash and a 
$19,000 note. E is not personally liable for repayment of the liability 
and the seller's only recourse in the event of default is to the herd of 
cattle. In 1977 E transfers the herd back to the original seller thereby 
satisfying the indebtedness pursuant to a provision in the original 
sales agreement. At the time of the transfer the fair market value of 
the herd is $15,000 and the remaining principal balance on the note is 
$19,000. At that time E's adjusted basis in the herd is $16,500 due to a 
deductible loss incurred when a portion of the herd died as a result of 
disease. As a result of the indebtedness being satisfied, E's amount 
realized is $19,000 notwithstanding the fact that the fair market value 
of the herd was less than $19,000. E's realized gain is $2,500 ($19,000 
- $16,500).
    Example 8. In 1980, F transfers to a creditor an asset with a fair 
market value of $6,000 and the creditor discharges $7,500 of 
indebtedness for which F is personally liable. The amount realized on 
the disposition of the asset is its fair market value ($6,000). In 
addition, F has income from the discharge of indebtedness of $1,500 
($7,500 - $6,000).

[T.D. 7741, 45 FR 81744, Dec. 12, 1980]



Sec.  1.1001-3  Modifications of debt instruments.

    (a) Scope--(1) In general. This section provides rules for 
determining whether a modification of the terms of a debt instrument 
results in an exchange for purposes of Sec.  1.1001-1(a). This section 
applies to any modification of a debt instrument, regardless of the form 
of the modification. For example, this section applies to an exchange of 
a new instrument for an existing debt instrument, or to an amendment of 
an existing debt instrument. This section also applies to a modification 
of a debt instrument that the issuer and holder accomplish indirectly 
through one or more transactions with third parties. This section, 
however, does not apply to exchanges of debt instruments between 
holders.
    (2) Qualified tender bonds. This section does not apply for purposes 
of determining whether tax-exempt bonds that are qualified tender bonds 
are reissued for purposes of sections 103 and 141 through 150.
    (b) General rule. For purposes of Sec.  1.1001-1(a), a significant 
modification of a debt instrument, within the meaning of this section, 
results in an exchange of the original debt instrument for a modified 
instrument that differs materially either in kind or in extent. A 
modification that is not a significant modification is not an exchange 
for purposes of Sec.  1.1001-1(a). Paragraphs (c) and (d) of this 
section define the term modification and contain examples illustrating 
the application of the rule. Paragraphs (e) and (f) of this section 
provide rules for determining when a modification is a significant 
modification. Paragraph (f) of this section also provides rules for 
determining whether the modified instrument received in an exchange will 
be classified as an instrument or property right that is not debt for 
federal income tax purposes. Paragraph (g) of this section contains 
examples illustrating the application of the rules in paragraphs (e) and 
(f) of this section.

[[Page 19]]

    (c) Modification defined--(1) In general--(i) Alteration of terms. A 
modification means any alteration, including any deletion or addition, 
in whole or in part, of a legal right or obligation of the issuer or a 
holder of a debt instrument, whether the alteration is evidenced by an 
express agreement (oral or written), conduct of the parties, or 
otherwise.
    (ii) Alterations occurring by operation of the terms of a debt 
instrument. Except as provided in paragraph (c)(2) of this section, an 
alteration of a legal right or obligation that occurs by operation of 
the terms of a debt instrument is not a modification. An alteration that 
occurs by operation of the terms may occur automatically (for example, 
an annual resetting of the interest rate based on the value of an index 
or a specified increase in the interest rate if the value of the 
collateral declines from a specified level) or may occur as a result of 
the exercise of an option provided to an issuer or a holder to change a 
term of a debt instrument.
    (2) Exceptions. The alterations described in this paragraph (c)(2) 
are modifications, even if the alterations occur by operation of the 
terms of a debt instrument.
    (i) Change in obligor or nature of instrument. An alteration that 
results in the substitution of a new obligor, the addition or deletion 
of a co-obligor, or a change (in whole or in part) in the recourse 
nature of the instrument (from recourse to nonrecourse or from 
nonrecourse to recourse) is a modification.
    (ii) Property that is not debt. An alteration that results in an 
instrument or property right that is not debt for Federal income tax 
purposes is a modification unless the alteration occurs pursuant to a 
holder's option under the terms of the instrument to convert the 
instrument into equity of the issuer (notwithstanding paragraph 
(c)(2)(iii) of this section). The rules of paragraph (f)(7) of this 
section apply to determine whether an alteration or modification results 
in an instrument or property right that is not debt.
    (iii) Certain alterations resulting from the exercise of an option. 
An alteration that results from the exercise of an option provided to an 
issuer or a holder to change a term of a debt instrument is a 
modification unless--
    (A) The option is unilateral (as defined in paragraph (c)(3) of this 
section); and
    (B) In the case of an option exercisable by a holder, the exercise 
of the option does not result in (or, in the case of a variable or 
contingent payment, is not reasonably expected to result in) a deferral 
of, or a reduction in, any scheduled payment of interest or principal.
    (3) Unilateral option. For purposes of this section, an option is 
unilateral only if, under the terms of an instrument or under applicable 
law--
    (i) There does not exist at the time the option is exercised, or as 
a result of the exercise, a right of the other party to alter or 
terminate the instrument or put the instrument to a person who is 
related (within the meaning of section 267(b) or section 707(b)(1)) to 
the issuer;
    (ii) The exercise of the option does not require the consent or 
approval of--
    (A) The other party;
    (B) A person who is related to that party (within the meaning of 
section 267(b) or section 707(b)(1)), whether or not that person is a 
party to the instrument; or
    (C) A court or arbitrator; and
    (iii) The exercise of the option does not require consideration 
(other than incidental costs and expenses relating to the exercise of 
the option), unless, on the issue date of the instrument, the 
consideration is a de minimis amount, a specified amount, or an amount 
that is based on a formula that uses objective financial information (as 
defined in Sec.  1.446-3(c)(4)(ii)).
    (4) Failure to perform--(i) In general. The failure of an issuer to 
perform its obligations under a debt instrument is not itself an 
alteration of a legal right or obligation and is not a modification.
    (ii) Holder's temporary forbearance. Notwithstanding paragraph 
(c)(1) of this section, absent a written or oral agreement to alter 
other terms of the debt instrument, an agreement by the holder to stay 
collection or temporarily waive an acceleration clause or similar 
default right (including such a waiver following the exercise of a right 
to demand payment in full) is not a

[[Page 20]]

modification unless and until the forbearance remains in effect for a 
period that exceeds--
    (A) Two years following the issuer's initial failure to perform; and
    (B) Any additional period during which the parties conduct good 
faith negotiations or during which the issuer is in a title 11 or 
similar case (as defined in section 368(a)(3)(A)).
    (5) Failure to exercise an option. If a party to a debt instrument 
has an option to change a term of an instrument, the failure of the 
party to exercise that option is not a modification.
    (6) Time of modification--(i) In general. Except as provided in this 
paragraph (c)(6), an agreement to change a term of a debt instrument is 
a modification at the time the issuer and holder enter into the 
agreement, even if the change in the term is not immediately effective.
    (ii) Closing conditions. If the parties condition a change in a term 
of a debt instrument on reasonable closing conditions (for example, 
shareholder, regulatory, or senior creditor approval, or additional 
financing), a modification occurs on the closing date of the agreement. 
Thus, if the reasonable closing conditions do not occur so that the 
change in the term does not become effective, a modification does not 
occur.
    (iii) Bankruptcy proceedings. If a change in a term of a debt 
instrument occurs pursuant to a plan of reorganization in a title 11 or 
similar case (within the meaning of section 368(a)(3)(A)), a 
modification occurs upon the effective date of the plan. Thus, unless 
the plan becomes effective, a modification does not occur.
    (d) Examples. The following examples illustrate the provisions of 
paragraph (c) of this section:

    Example 1. Reset bond. A bond provides for the interest rate to be 
reset every 49 days through an auction by a remarketing agent. The reset 
of the interest rate occurs by operation of the terms of the bond and is 
not an alteration described in paragraph (c)(2) of this section. Thus, 
the reset of the interest rate is not a modification.
    Example 2. Obligation to maintain collateral. The original terms of 
a bond provide that the bond must be secured by a certain type of 
collateral having a specified value. The terms also require the issuer 
to substitute collateral if the value of the original collateral 
decreases. Any substitution of collateral that is required to maintain 
the value of the collateral occurs by operation of the terms of the bond 
and is not an alteration described in paragraph (c)(2) of this section. 
Thus, such a substitution of collateral is not a modification.
    Example 3. Alteration contingent on an act of a party. The original 
terms of a bond provide that the interest rate is 9 percent. The terms 
also provide that, if the issuer files an effective registration 
statement covering the bonds with the Securities and Exchange 
Commission, the interest rate will decrease to 8 percent. If the issuer 
registers the bond, the resulting decrease in the interest rate occurs 
by operation of the terms of the bond and is not an alteration described 
in paragraph (c)(2) of this section. Thus, such a decrease in the 
interest rate is not a modification.
    Example 4. Substitution of a new obligor occurring by operation of 
the terms of the debt instrument. Under the original terms of a bond 
issued by a corporation, an acquirer of substantially all of the 
corporation's assets may assume the corporation's obligations under the 
bond. Substantially all of the corporation's assets are acquired by 
another corporation and the acquiring corporation becomes the new 
obligor on the bond. Under paragraph (c)(2)(i) of this section, the 
substitution of a new obligor, even though it occurs by operation of the 
terms of the bond, is a modification.
    Example 5. Defeasance with release of covenants. (i) A corporation 
issues a 30-year, recourse bond. Under the terms of the bond, the 
corporation may secure a release of the financial and restrictive 
covenants by placing in trust government securities as collateral that 
will provide interest and principal payments sufficient to satisfy all 
scheduled payments on the bond. The corporation remains obligated for 
all payments, including the contribution of additional securities to the 
trust if necessary to provide sufficient amounts to satisfy the payment 
obligations. Under paragraph (c)(3) of this section, the option to 
defease the bond is a unilateral option.
    (ii) The alterations occur by operation of the terms of the debt 
instrument and are not described in paragraph (c)(2) of this section. 
Thus, such a release of the covenants is not a modification.
    Example 6. Legal defeasance. Under the terms of a recourse bond, the 
issuer may secure a release of the financial and restrictive covenants 
by placing in trust government securities that will provide interest and 
principal payments sufficient to satisfy all scheduled payments on the 
bond. Upon the creation of the trust, the issuer is released from any 
recourse liability on the bond and has no obligation to contribute 
additional securities to the trust if the trust funds are

[[Page 21]]

not sufficient to satisfy the scheduled payments on the bond. The 
release of the issuer is an alteration described in paragraph (c)(2)(i) 
of this section, and thus is a modification.
    Example 7. Exercise of an option by a holder that reduces amounts 
payable. (i) A financial institution holds a residential mortgage. Under 
the original terms of the mortgage, the financial institution has an 
option to decrease the interest rate. The financial institution 
anticipates that, if market interest rates decline, it may exercise this 
option in lieu of the mortgagor refinancing with another lender.
    (ii) The financial institution exercises the option to reduce the 
interest rate. The exercise of the option results in a reduction in 
scheduled payments and is an alteration described in paragraph 
(c)(2)(iii) of this section. Thus, the change in interest rate is a 
modification.
    Example 8. Conversion of adjustable rate to fixed rate mortgage. (i) 
The original terms of a mortgage provide for a variable interest rate, 
reset annually based on the value of an objective index. Under the terms 
of the mortgage, the mortgagor may, upon the payment of a fee equal to a 
specified percentage of the outstanding principal amount of the 
mortgage, convert to a fixed rate of interest as determined based on the 
value of a second objective index. The exercise of the option does not 
require the consent or approval of any person or create a right of the 
holder to alter the terms of, or to put, the instrument.
    (ii) Because the required consideration to exercise the option is a 
specified amount fixed on the issue date, the exercise of the option is 
unilateral as defined in paragraph (c)(3) of this section. The 
conversion to a fixed rate of interest is not an alteration described in 
paragraph (c)(2) of this section. Thus, the change in the type of 
interest rate occurs by operation of the terms of the instrument and is 
not a modification.
    Example 9. Holder's option to increase interest rate. (i) A 
corporation issues an 8-year note to a bank in exchange for cash. Under 
the terms of the note, the bank has the option to increase the rate of 
interest by a specified amount if certain covenants in the note are 
breached. The bank's right to increase the interest rate is a unilateral 
option as described in paragraph (c)(3) of this section.
    (ii) A covenant in the note is breached. The bank exercises its 
option to increase the rate of interest. The increase in the rate of 
interest occurs by operation of the terms of the note and does not 
result in a deferral or a reduction in the scheduled payments or any 
other alteration described in paragraph (c)(2) of this section. Thus, 
the change in interest rate is not a modification.
    (iii) Applicability date. This Example 9 applies to modifications 
occurring on or after July 6, 2011.
    Example 10. Issuer's right to defer payment of interest. A 
corporation issues a 5-year note. Under the terms of the note, interest 
is payable annually at the rate of 10 percent. The corporation, however, 
has an option to defer any payment of interest until maturity. For any 
payments that are deferred, interest will compound at a rate of 12 
percent. The exercise of the option, which results in the deferral of 
payments, does not result from the exercise of an option by the holder. 
The exercise of the option occurs by operation of the terms of the debt 
instrument and is not a modification.
    Example 11. Holder's option to grant deferral of payment. (i) A 
corporation issues a 10-year note to a bank in exchange for cash. 
Interest on the note is payable semi-annually. Under the terms of the 
note, the bank may grant the corporation the right to defer all or part 
of the interest payments. For any payments that are deferred, interest 
will compound at a rate 150 basis points greater than the stated rate of 
interest.
    (ii) The corporation encounters financial difficulty and is unable 
to satisfy its obligations under the note. The bank exercises its option 
under the note and grants the corporation the right to defer payments. 
The exercise of the option results in a right of the corporation to 
defer scheduled payments and, under paragraph (c)(3)(i) of this section, 
is not a unilateral option. Thus, the alteration is described in 
paragraph (c)(2)(iii) of this section and is a modification.
    Example 12. Alteration requiring consent. The original terms of a 
bond include a provision that the issuer may extend the maturity of the 
bond with the consent of the holder. Because any extension pursuant to 
this term requires the consent of both parties, such an extension does 
not occur by the exercise of a unilateral option (as defined in 
paragraph (c)(3) of this section) and is a modification.
    Example 13. Waiver of an acceleration clause. Under the terms of a 
bond, if the issuer fails to make a scheduled payment, the full 
principal amount of the bond is due and payable immediately. Following 
the issuer's failure to make a scheduled payment, the holder temporarily 
waives its right to receive the full principal for a period ending one 
year from the date of the issuer's default to allow the issuer to obtain 
additional financial resources. Under paragraph (c)(4)(ii) of this 
section, the temporary waiver in this situation is not a modification. 
The result would be the same if the terms provided the holder with the 
right to demand the full principal amount upon the failure of the issuer 
to make a scheduled payment and, upon such a failure, the holder 
exercised that right and then waived the right to receive the payment 
for one year.

    (e) Significant modifications. Whether the modification of a debt 
instrument

[[Page 22]]

is a significant modification is determined under the rules of this 
paragraph (e). Paragraph (e)(1) of this section provides a general rule 
for determining the significance of modifications not otherwise 
addressed in this paragraph (e). Paragraphs (e) (2) through (6) of this 
section provide specific rules for determining the significance of 
certain types of modifications. Paragraph (f) of this section provides 
rules of application, including rules for modifications that are 
effective on a deferred basis or upon the occurrence of a contingency.
    (1) General rule. Except as otherwise provided in paragraphs (e)(2) 
through (e)(6) of this section, a modification is a significant 
modification only if, based on all facts and circumstances, the legal 
rights or obligations that are altered and the degree to which they are 
altered are economically significant. In making a determination under 
this paragraph (e)(1), all modifications to the debt instrument (other 
than modifications subject to paragraphs (e) (2) through (6) of this 
section) are considered collectively, so that a series of such 
modifications may be significant when considered together although each 
modification, if considered alone, would not be significant.
    (2) Change in yield--(i) Scope of rule. This paragraph (e)(2) 
applies to debt instruments that provide for only fixed payments, debt 
instruments with alternative payment schedules subject to Sec.  1.1272-
1(c), debt instruments that provide for a fixed yield subject to Sec.  
1.1272-1(d) (such as certain demand loans), and variable rate debt 
instruments. Whether a change in the yield of other debt instruments 
(for example, a contingent payment debt instrument) is a significant 
modification is determined under paragraph (e)(1) of this section.
    (ii) In general. A change in the yield of a debt instrument is a 
significant modification if the yield computed under paragraph 
(e)(2)(iii) of this section varies from the annual yield on the 
unmodified instrument (determined as of the date of the modification) by 
more than the greater of--
    (A) \1/4\ of one percent (25 basis points); or
    (B) 5 percent of the annual yield of the unmodified instrument (.05 
x annual yield).
    (iii) Yield of the modified instrument--(A) In general. The yield 
computed under this paragraph (e)(2)(iii) is the annual yield of a debt 
instrument with--
    (1) An issue price equal to the adjusted issue price of the 
unmodified instrument on the date of the modification (increased by any 
accrued but unpaid interest and decreased by any accrued bond issuance 
premium not yet taken into account, and increased or decreased, 
respectively, to reflect payments made to the issuer or to the holder as 
consideration for the modification); and
    (2) Payments equal to the payments on the modified debt instrument 
from the date of the modification.
    (B) Prepayment penalty. For purposes of this paragraph (e)(2)(iii), 
a commercially reasonable prepayment penalty for a pro rata prepayment 
(as defined in Sec.  1.1275-2(f)) is not consideration for a 
modification of a debt instrument and is not taken into account in 
determining the yield of the modified instrument.
    (iv) Variable rate debt instruments. For purposes of this paragraph 
(e)(2), the annual yield of a variable rate debt instrument is the 
annual yield of the equivalent fixed rate debt instrument (as defined in 
Sec.  1.1275-5(e)) which is constructed based on the terms of the 
instrument (either modified or unmodified, whichever is applicable) as 
of the date of the modification.
    (3) Changes in timing of payments--(i) In general. A modification 
that changes the timing of payments (including any resulting change in 
the amount of payments) due under a debt instrument is a significant 
modification if it results in the material deferral of scheduled 
payments. The deferral may occur either through an extension of the 
final maturity date of an instrument or through a deferral of payments 
due prior to maturity. The materiality of the deferral depends on all 
the facts and circumstances, including the length of the deferral, the 
original term of the instrument, the amounts of the payments that are 
deferred, and

[[Page 23]]

the time period between the modification and the actual deferral of 
payments.
    (ii) Safe-harbor period. The deferral of one or more scheduled 
payments within the safe-harbor period is not a material deferral if the 
deferred payments are unconditionally payable no later than at the end 
of the safe-harbor period. The safe-harbor period begins on the original 
due date of the first scheduled payment that is deferred and extends for 
a period equal to the lesser of five years or 50 percent of the original 
term of the instrument. For purposes of this paragraph (e)(3)(ii), the 
term of an instrument is determined without regard to any option to 
extend the original maturity and deferrals of de minimis payments are 
ignored. If the period during which payments are deferred is less than 
the full safe-harbor period, the unused portion of the period remains a 
safe-harbor period for any subsequent deferral of payments on the 
instrument.
    (4) Change in obligor or security--(i) Substitution of a new obligor 
on recourse debt instruments--(A) In general. Except as provided in 
paragraph (e)(4)(i) (B), (C), or (D) of this section, the substitution 
of a new obligor on a recourse debt instrument is a significant 
modification.
    (B) Section 381(a) transaction. The substitution of a new obligor is 
not a significant modification if the acquiring corporation (within the 
meaning of section 381) becomes the new obligor pursuant to a 
transaction to which section 381(a) applies, the transaction does not 
result in a change in payment expectations, and the transaction (other 
than a reorganization within the meaning of section 368(a)(1)(F)) does 
not result in a significant alteration.
    (C) Certain asset acquisitions. The substitution of a new obligor is 
not a significant modification if the new obligor acquires substantially 
all of the assets of the original obligor, the transaction does not 
result in a change in payment expectations, and the transaction does not 
result in a significant alteration.
    (D) Tax-exempt bonds. The substitution of a new obligor on a tax-
exempt bond is not a significant modification if the new obligor is a 
related entity to the original obligor as defined in section 
168(h)(4)(A) and the collateral securing the instrument continues to 
include the original collateral.
    (E) Significant alteration. For purposes of this paragraph (e)(4), a 
significant alteration is an alteration that would be a significant 
modification but for the fact that the alteration occurs by operation of 
the terms of the instrument.
    (F) Section 338 election. For purposes of this section, an election 
under section 338 following a qualified stock purchase of an issuer's 
stock does not result in the substitution of a new obligor.
    (G) Bankruptcy proceedings. For purposes of this section, the filing 
of a petition in a title 11 or similar case (as defined in section 
368(a)(3)(A)) by itself does not result in the substitution of a new 
obligor.
    (ii) Substitution of a new obligor on nonrecourse debt instruments. 
The substitution of a new obligor on a nonrecourse debt instrument is 
not a significant modification.
    (iii) Addition or deletion of co-obligor. The addition or deletion 
of a co-obligor on a debt instrument is a significant modification if 
the addition or deletion of the co-obligor results in a change in 
payment expectations. If the addition or deletion of a co-obligor is 
part of a transaction or series of related transactions that results in 
the substitution of a new obligor, however, the transaction is treated 
as a substitution of a new obligor (and is tested under paragraph 
(e)(4)(i)) of this section rather than as an addition or deletion of a 
co-obligor.
    (iv) Change in security or credit enhancement--(A) Recourse debt 
instruments. A modification that releases, substitutes, adds or 
otherwise alters the collateral for, a guarantee on, or other form of 
credit enhancement for a recourse debt instrument is a significant 
modification if the modification results in a change in payment 
expectations.
    (B) Nonrecourse debt instruments. (1) A modification that releases, 
substitutes, adds or otherwise alters a substantial amount of the 
collateral for, a guarantee on, or other form of credit enhancement for 
a nonrecourse debt instrument is a significant modification.

[[Page 24]]

A substitution of collateral is not a significant modification, however, 
if the collateral is fungible or otherwise of a type where the 
particular units pledged are unimportant (for example, government 
securities or financial instruments of a particular type and credit 
quality). In addition, the substitution of a similar commercially 
available credit enhancement contract is not a significant modification, 
and an improvement to the property securing a nonrecourse debt 
instrument does not result in a significant modification.
    (2) Applicability date. Paragraph (e)(4)(iv)(B)(1) of this section 
applies to modifications occurring on or after July 6, 2011.
    (v) Change in priority of debt. A change in the priority of a debt 
instrument relative to other debt of the issuer is a significant 
modification if it results in a change in payment expectations.
    (vi) Change in payment expectations--(A) In general. For purposes of 
this section, a change in payment expectations occurs if, as a result of 
a transaction--
    (1) There is a substantial enhancement of the obligor's capacity to 
meet the payment obligations under a debt instrument and that capacity 
was primarily speculative prior to the modification and is adequate 
after the modification; or
    (2) There is a substantial impairment of the obligor's capacity to 
meet the payment obligations under a debt instrument and that capacity 
was adequate prior to the modification and is primarily speculative 
after the modification.
    (B) Obligor's capacity. The obligor's capacity includes any source 
for payment, including collateral, guarantees, or other credit 
enhancement.
    (5) Changes in the nature of a debt instrument--(i) Property that is 
not debt. A modification of a debt instrument that results in an 
instrument or property right that is not debt for Federal income tax 
purposes is a significant modification. The rules of paragraph (f)(7) of 
this section apply to determine whether a modification results in an 
instrument or property right that is not debt.
    (ii) Change in recourse nature--(A) In general. Except as provided 
in paragraph (e)(5)(ii)(B) of this section, a change in the nature of a 
debt instrument from recourse (or substantially all recourse) to 
nonrecourse (or substantially all nonrecourse) is a significant 
modification. Thus, for example, a legal defeasance of a debt instrument 
in which the issuer is released from all liability to make payments on 
the debt instrument (including an obligation to contribute additional 
securities to a trust if necessary to provide sufficient funds to meet 
all scheduled payments on the instrument) is a significant modification. 
Similarly, a change in the nature of the debt instrument from 
nonrecourse (or substantially all nonrecourse) to recourse (or 
substantially all recourse) is a significant modification. If an 
instrument is not substantially all recourse or not substantially all 
nonrecourse either before or after a modification, the significance of 
the modification is determined under paragraph (e)(1) of this section.
    (B) Exceptions--(1) Defeasance of tax-exempt bonds. A defeasance of 
a tax-exempt bond is not a significant modification even if the issuer 
is released from any liability to make payments under the instrument if 
the defeasance occurs by operation of the terms of the original bond and 
the issuer places in trust government securities or tax-exempt 
government bonds that are reasonably expected to provide interest and 
principal payments sufficient to satisfy the payment obligations under 
the bond.
    (2) Original collateral. (i) A modification that changes a recourse 
debt instrument to a nonrecourse debt instrument is not a significant 
modification if the instrument continues to be secured only by the 
original collateral and the modification does not result in a change in 
payment expectations. For this purpose, if the original collateral is 
fungible or otherwise of a type where the particular units pledged are 
unimportant (for example, government securities or financial instruments 
of a particular type and credit quality), replacement of some or all 
units of the original collateral with other units of the same or similar 
type and aggregate

[[Page 25]]

value is not considered a change in the original collateral.
    (ii) Applicability date. Paragraph (e)(5)(ii)(B)(2)(i) of this 
section applies to modifications occurring on or after July 6, 2011.
    (6) Accounting or financial covenants. A modification that adds, 
deletes, or alters customary accounting or financial covenants is not a 
significant modification.
    (f) Rules of application--(1) Testing for significance--(i) In 
general. Whether a modification of any term is a significant 
modification is determined under each applicable rule in paragraphs (e) 
(2) through (6) of this section and, if not specifically addressed in 
those rules, under the general rule in paragraph (e)(1) of this section. 
For example, a deferral of payments that changes the yield of a fixed 
rate debt instrument must be tested under both paragraphs (e) (2) and 
(3) of this section.
    (ii) Contingent modifications. If a modification described in 
paragraphs (e) (2) through (5) of this section is effective only upon 
the occurrence of a substantial contingency, whether or not the change 
is a significant modification is determined under paragraph (e)(1) of 
this section rather than under paragraphs (e) (2) through (5) of this 
section.
    (iii) Deferred modifications. If a modification described in 
paragraphs (e) (4) and (5) of this section is effective on a 
substantially deferred basis, whether or not the change is a significant 
modification is determined under paragraph (e)(1) of this section rather 
than under paragraphs (e) (4) and (5) of this section.
    (2) Modifications that are not significant. If a rule in paragraphs 
(e) (2) through (4) of this section prescribes a degree of change in a 
term of a debt instrument that is a significant modification, a change 
of the same type but of a lesser degree is not a significant 
modification under that rule. For example, a 20 basis point change in 
the yield of a fixed rate debt instrument is not a significant 
modification under paragraph (e)(2) of this section. Likewise, if a rule 
in paragraph (e)(4) of this section requires a change in payment 
expectations for a modification to be significant, a modification of the 
same type that does not result in a change in payment expectations is 
not a significant modification under that rule.
    (3) Cumulative effect of modifications. Two or more modifications of 
a debt instrument over any period of time constitute a significant 
modification if, had they been done as a single change, the change would 
have resulted in a significant modification under paragraph (e) of this 
section. Thus, for example, a series of changes in the maturity of a 
debt instrument constitutes a significant modification if, combined as a 
single change, the change would have resulted in a significant 
modification. The significant modification occurs at the time that the 
cumulative modification would be significant under paragraph (e) of this 
section. In testing for a change of yield under paragraph (e)(2) of this 
section, however, any prior modification occurring more than 5 years 
before the date of the modification being tested is disregarded.
    (4) Modifications of different terms. Modifications of different 
terms of a debt instrument, none of which separately would be a 
significant modification under paragraphs (e) (2) through (6) of this 
section, do not collectively constitute a significant modification. For 
example, a change in yield that is not a significant modification under 
paragraph (e)(2) of this section and a substitution of collateral that 
is not a significant modification under paragraph (e)(4)(iv) of this 
section do not together result in a significant modification. Although 
the significance of each modification is determined independently, in 
testing a particular modification it is assumed that all other 
simultaneous modifications have already occurred.
    (5) Definitions. For purposes of this section:
    (i) Issuer and obligor are used interchangeably and mean the issuer 
of a debt instrument or a successor obligor.
    (ii) Variable rate debt instrument and contingent payment debt 
instrument have the meanings given those terms in section 1275 and the 
regulations thereunder.

[[Page 26]]

    (iii) Tax-exempt bond means a state or local bond that satisfies the 
requirements of section 103(a).
    (iv) Conduit loan and conduit borrower have the same meanings as in 
Sec.  1.150-1(b).
    (6) Certain rules for tax-exempt bonds--(i) Conduit loans. For 
purposes of this section, the obligor of a tax-exempt bond is the entity 
that actually issues the bond and not a conduit borrower of bond 
proceeds. In determining whether there is a significant modification of 
a tax-exempt bond, however, transactions between holders of the tax-
exempt bond and a borrower of a conduit loan may be an indirect 
modification under paragraph (a)(1) of this section. For example, a 
payment by the holder of a tax-exempt bond to a conduit borrower to 
waive a call right may result in an indirect modification of the tax-
exempt bond by changing the yield on that bond.
    (ii) Recourse nature--(A) In general. For purposes of this section, 
a tax-exempt bond that does not finance a conduit loan is a recourse 
debt instrument.
    (B) Proceeds used for conduit loans. For purposes of this section, a 
tax-exempt bond that finances a conduit loan is a recourse debt 
instrument unless both the bond and the conduit loan are nonrecourse 
instruments.
    (C) Government securities as collateral. Notwithstanding paragraphs 
(f)(6)(ii) (A) and (B) of this section, for purposes of this section a 
tax-exempt bond that is secured only by a trust holding government 
securities or tax-exempt government bonds that are reasonably expected 
to provide interest and principal payments sufficient to satisfy the 
payment obligations under the bond is a nonrecourse instrument.
    (7) Rules for determining whether an alteration or modification 
results in an instrument or property right that is not debt--(i) In 
general. Except as provided in paragraph (f)(7)(ii) of this section, the 
determination of whether an instrument resulting from an alteration or 
modification of a debt instrument will be recharacterized as an 
instrument or property right that is not debt for Federal income tax 
purposes shall take into account all of the factors relevant to such a 
determination.
    (ii) Financial condition of the obligor--(A) Deterioration in 
financial condition of the obligor generally disregarded. Except as 
provided in paragraph (f)(7)(ii)(B) of this section, in making a 
determination as to whether an instrument resulting from an alteration 
or modification of a debt instrument will be recharacterized as an 
instrument or property right that is not debt, any deterioration in the 
financial condition of the obligor between the issue date of the debt 
instrument and the date of the alteration or modification (as it relates 
to the obligor's ability to repay the debt instrument) is not taken into 
account. For example, any decrease in the fair market value of a debt 
instrument (whether or not the debt instrument is publicly traded) 
between the issue date of the debt instrument and the date of the 
alteration or modification is not taken into account to the extent that 
the decrease in fair market value is attributable to the deterioration 
in the financial condition of the obligor and not to a modification of 
the terms of the instrument.
    (B) Substitution of a new obligor; addition or deletion of co-
obligor. If there is a substitution of a new obligor or the addition or 
deletion of a co-obligor, the rules in paragraph (f)(7)(ii)(A) of this 
section do not apply.
    (g) Examples. The following examples illustrate the provisions of 
paragraphs (e) and (f) of this section:

    Example 1. Modification of call right. (i) Under the terms of a 30-
year, fixed-rate bond, the issuer can call the bond for 102 percent of 
par at the end of ten years or for 101 percent of par at the end of 20 
years. At the end of the eighth year, the holder of the bond pays the 
issuer to waive the issuer's right to call the bond at the end of the 
tenth year. On the date of the modification, the issuer's credit quality 
is approximately the same as when the bond was issued, but market rates 
of interest have declined from that date.
    (ii) The holder's payment to the issuer changes the yield on the 
bond. Whether the change in yield is a significant modification depends 
on whether the yield on the modified bond varies from the yield on the 
original bond by more than the change in yield as described in paragraph 
(e)(2)(ii) of this section.
    (iii) If the change in yield is not a significant modification, the 
elimination of the issuer's call right must also be tested for 
significance. Because the specific rules of paragraphs (e)(2) through 
(e)(6) of this section do

[[Page 27]]

not address this modification, the significance of the modification must 
be determined under the general rule of paragraph (e)(1) of this 
section.
    (iv) Applicability date. This Example 1 applies to modifications 
occurring on or after July 6, 2011.
    Example 2. Extension of maturity and change in yield. (i) A zero-
coupon bond has an original maturity of ten years. At the end of the 
fifth year, the parties agree to extend the maturity for a period of two 
years without increasing the stated redemption price at maturity (i.e., 
there are no additional payments due between the original and extended 
maturity dates, and the amount due at the extended maturity date is 
equal to the amount due at the original maturity date).
    (ii) The deferral of the scheduled payment at maturity is tested 
under paragraph (e)(3) of this section. The safe-harbor period under 
paragraph (e)(3)(ii) of this section starts with the date the payment 
that is being deferred is due. For this modification, the safe-harbor 
period starts on the original maturity date, and ends five years from 
this date. All payments deferred within this period are unconditionally 
payable before the end of the safe-harbor period. Thus, the deferral of 
the payment at maturity for a period of two years is not a material 
deferral under the safe-harbor rule of paragraph (e)(3)(ii) of this 
section and thus is not a significant modification.
    (iii) Even though the extension of maturity is not a significant 
modification under paragraph (e)(3)(ii) of this section, the 
modification also decreases the yield of the bond. The change in yield 
must be tested under paragraph (e)(2) of this section.
    Example 3. Change in yield resulting from reduction of principal. 
(i) A debt instrument issued at par has an original maturity of ten 
years and provides for the payment of $100,000 at maturity with interest 
payments at the rate of 10 percent payable at the end of each year. At 
the end of the fifth year, and after the annual payment of interest, the 
issuer and holder agree to reduce the amount payable at maturity to 
$80,000. The annual interest rate remains at 10 percent but is payable 
on the reduced principal.
    (ii) In applying the change in yield rule of paragraph (e)(2) of 
this section, the yield of the instrument after the modification 
(measured from the date that the parties agree to the modification to 
its final maturity date) is computed using the adjusted issue price of 
$100,000. With four annual payments of $8,000, and a payment of $88,000 
at maturity, the yield on the instrument after the modification for 
purposes of determining if there has been a significant modification 
under paragraph (e)(2)(i) of this section is 4.332 percent. Thus, the 
reduction in principal is a significant modification.
    Example 4. Deferral of scheduled interest payments. (i) A 20-year 
debt instrument issued at par provides for the payment of $100,000 at 
maturity with annual interest payments at the rate of 10 percent. At the 
beginning of the eleventh year, the issuer and holder agree to defer all 
remaining interest payments until maturity with compounding. The yield 
of the modified instrument remains at 10 percent.
    (ii) The safe-harbor period of paragraph (e)(3)(ii) of this section 
begins at the end of the eleventh year, when the interest payment for 
that year is deferred, and ends at the end of the sixteenth year. 
However, the payments deferred during this period are not 
unconditionally payable by the end of that 5-year period. Thus, the 
deferral of the interest payments is not within the safe-harbor period.
    (iii) This modification materially defers the payments due under the 
instrument and is a significant modification under paragraph (e)(3)(i) 
of this section.
    Example 5. Assumption of mortgage with increase in interest rate. 
(i) A recourse debt instrument with a 9 percent annual yield is secured 
by an office building. Under the terms of the instrument, a purchaser of 
the building may assume the debt and be substituted for the original 
obligor if the purchaser is equally or more creditworthy than the 
original obligor and if the interest rate on the instrument is increased 
by one-half percent (50 basis points). The building is sold, the 
purchaser assumes the debt, and the interest rate increases by 50 basis 
points.
    (ii) If the purchaser's acquisition of the building does not satisfy 
the requirements of paragraph (e)(4)(i)(B) or paragraph (e)(4)(i)(C) of 
this section, the substitution of the purchaser as the obligor is a 
significant modification under paragraph (e)(4)(i)(A) of this section.
    (iii) If the purchaser acquires substantially all of the assets of 
the original obligor, the assumption of the debt instrument will not 
result in a significant modification if there is not a change in payment 
expectations and the assumption does not result in a significant 
alteration.
    (iv) The change in the interest rate, if tested under the rules of 
paragraph (e)(2) of this section, would result in a significant 
modification. The change in interest rate that results from the 
transaction is a significant alteration. Thus, the transaction does not 
meet the requirements of paragraph (e)(4)(i)(C) of this section and is a 
significant modification under paragraph (e)(4)(i)(A) of this section.
    (v) Applicability date. This Example 5 applies to modifications 
occurring on or after July 6, 2011.
    Example 6. Assumption of mortgage. (i) A recourse debt instrument is 
secured by a building. In connection with the sale of the building, the 
purchaser of the building assumes

[[Page 28]]

the debt and is substituted as the new obligor on the debt instrument. 
The purchaser does not acquire substantially all of the assets of the 
original obligor.
    (ii) The transaction does not satisfy any of the exceptions set 
forth in paragraph (e)(4)(i) (B) or (C) of this section. Thus, the 
substitution of the purchaser as the obligor is a significant 
modification under paragraph (e)(4)(i)(A) of this section.
    (iii) Section 1274(c)(4), however, provides that if a debt 
instrument is assumed in connection with the sale or exchange of 
property, the assumption is not taken into account in determining if 
section 1274 applies to the debt instrument unless the terms and 
conditions of the debt instrument are modified in connection with the 
sale or exchange. Because the purchaser assumed the debt instrument in 
connection with the sale of property and the debt instrument was not 
otherwise modified, the debt instrument is not retested to determine 
whether it provides for adequate stated interest.
    Example 7. Substitution of a new obligor in section 381(a) 
transaction. (i) The interest rate on a 30-year debt instrument issued 
by a corporation provides for a variable rate of interest that is reset 
annually on June 1st based on an objective index.
    (ii) In the tenth year, the issuer merges (in a transaction to which 
section 381(a) applies) into another corporation that becomes the new 
obligor on the debt instrument. The merger occurs on June 1st, at which 
time the interest rate is also reset by operation of the terms of the 
instrument. The new interest rate varies from the previous interest rate 
by more than the greater of 25 basis points and 5 percent of the annual 
yield of the unmodified instrument. The substitution of a new obligor 
does not result in a change in payment expectations.
    (iii) The substitution of the new obligor occurs in a section 381(a) 
transaction and does not result in a change in payment expectations. 
Although the interest rate changed by more than the greater of 25 basis 
points and 5 percent of the annual yield of the unmodified instrument, 
this alteration did not occur as a result of the transaction and is not 
a significant alteration under paragraph (e)(4)(i)(E) of this section. 
Thus, the substitution meets the requirements of paragraph (e)(4)(i)(B) 
of this section and is not a significant modification.
    Example 8. Substitution of credit enhancement contract. (i) Under 
the terms of a recourse debt instrument, the issuer's obligations are 
secured by a letter of credit from a specified bank. The debt instrument 
does not contain any provision allowing a substitution of a letter of 
credit from a different bank. The specified bank, however, encounters 
financial difficulty. The issuer and holder agree that the issuer will 
substitute a letter of credit from another bank.
    (ii) Under paragraph (e)(4)(iv)(A) of this section, the substitution 
of a different credit enhancement contract is not a significant 
modification of a recourse debt instrument unless the substitution 
results in a change in payment expectations. While the substitution of a 
new letter of credit by a different bank does not itself result in a 
change in payment expectations, such a substitution may result in a 
change in payment expectations under certain circumstances (for example, 
if the obligor's capacity to meet payment obligations is dependent on 
the letter of credit and the substitution substantially enhances that 
capacity from primarily speculative to adequate).
    (iii) Applicability date. This Example 8 applies to modifications 
occurring on or after July 6, 2011.
    Example 9. Improvement to collateral securing nonrecourse debt. A 
parcel of land and its improvements, a shopping center, secure a 
nonrecourse debt instrument. The obligor expands the shopping center 
with the construction of an additional building on the same parcel of 
land. After the construction, the improvements that secure the 
nonrecourse debt include the new building. The building is an 
improvement to the property securing the nonrecourse debt instrument and 
its inclusion in the collateral securing the debt is not a significant 
modification under paragraph (e)(4)(iv)(B) of this section.

    (h) Effective/applicability date--(1) In general. Except as 
otherwise provided in paragraph (h)(2) of this section, this section 
applies to alterations of the terms of a debt instrument on or after 
September 24, 1996. Taxpayers, however, may rely on this section for 
alterations of the terms of a debt instrument after December 2, 1992, 
and before September 24, 1996.
    (2) Exception. Paragraph (f)(7) of this section applies to an 
alteration of the terms of a debt instrument on or after January 7, 
2011. A taxpayer, however, may rely on paragraph (f)(7) of this section 
for alterations of the terms of a debt instrument occurring before that 
date.

[T.D. 8675, 61 FR 32930, June 26, 1996; 61 FR 47822, Sept. 11, 1996; 76 
FR 1064, Jan. 7, 2011; T.D. 9533, 76 FR 39282, July 6, 2011; T.D. 9637, 
78 FR 54760, Sept. 6, 2013]



Sec.  1.1001-4  Modifications of certain derivative contracts.

    (a) Certain assignments. For purposes of Sec.  1.1001-1(a), the 
transfer or assignment of a derivative contract is not treated by the 
nonassigning

[[Page 29]]

counterparty as a deemed exchange of the original contract for a 
modified contract that differs materially either in kind or in extent 
if--
    (1) Both the party transferring or assigning its rights and 
obligations under the derivative contract and the party to which the 
rights and obligations are transferred or assigned are either a dealer 
or a clearinghouse;
    (2) The terms of the derivative contract permit the transfer or 
assignment of the contract, whether or not the consent of the 
nonassigning counterparty is required for the transfer or assignment to 
be effective; and
    (3) The terms of the derivative contract are not otherwise modified 
in a manner that results in a taxable exchange under section 1001.
    (b) Definitions--(1) Dealer. For purposes of this section, a dealer 
is a taxpayer who meets the definition of a dealer in securities in 
section 475(c)(1) or is a dealer in commodities derivative contracts.
    (2) Clearinghouse. For purposes of this section, a clearinghouse is 
a derivatives clearing organization (as such term is defined in section 
1a of the Commodity Exchange Act (7 U.S.C. 1a)) or a clearing agency (as 
such term is defined in section 3 of the Securities Exchange Act of 1934 
(15 U.S.C. 78c(a))) that is registered, or exempt from registration, 
under each respective Act.
    (3) Derivative contract. For purposes of this section, a derivative 
contract is a contract described in--
    (i) Section 475(c)(2)(D), 475(c)(2)(E), or 475(c)(2)(F) without 
regard to the last sentence of section 475(c)(2) referencing section 
1256;
    (ii) Section 475(e)(2)(B), 475(e)(2)(C), or 475(e)(2)(D); or
    (iii) Section 1.446-3(c)(1).
    (c) Consideration for the assignment. Any payment between a party 
transferring or assigning its rights and obligations under the contract 
and the party to which the rights and obligations are transferred or 
assigned pursuant to a transfer or assignment described in paragraph (a) 
of this section will not affect the treatment of the nonassigning 
counterparty for purposes of this section. A payment described in the 
preceding sentence made or received to transfer or assign rights and 
obligations under a notional principal contract (as defined in Sec.  
1.446-3(c)(1)) is not subject to Sec.  1.446-3(g)(4).
    (d) Effective/applicability date. This section applies to transfers 
or assignments of derivative contracts on or after July 22, 2011.

[T.D. 9639, 78 FR 66640, Nov. 6, 2013]



Sec.  1.1001-5  European Monetary Union (conversion to the euro).

    (a) Conversion of currencies. For purposes of Sec.  1.1001-1(a), the 
conversion to the euro of legacy currencies (as defined in Sec.  1.985-
8(a)(1)) is not the exchange of property for other property differing 
materially in kind or extent.
    (b) Effect of currency conversion on other rights and obligations. 
For purposes of Sec.  1.1001-1(a), if, solely as the result of the 
conversion of legacy currencies to the euro, rights or obligations 
denominated in a legacy currency become rights or obligations 
denominated in the euro, that event is not the exchange of property for 
other property differing materially in kind or extent. Thus, for 
example, when a debt instrument that requires payments of amounts 
denominated in a legacy currency becomes a debt instrument requiring 
payments of euros, that alteration is not a modification within the 
meaning of Sec.  1.1001-3(c).
    (c) Effective date. This section applies to tax years ending after 
July 29, 1998.

[T.D. 8927, 66 FR 2218, Jan. 11, 2001]



Sec.  1.1001-6  Transition from certain interbank offered rates.

    (a) In general. This section provides rules relating to the 
modification of the terms of a contract as part of the transition away 
from the London Interbank Offered Rate and certain other interbank 
offered rates. In general, paragraphs (b) through (g) of this section 
provide the operative rules for a covered modification. Paragraph (h) of 
this section defines certain terms that are used in these operative 
rules, such as covered modification, qualified rate, discontinued IBOR, 
associated modification, and qualified one-time payment. Paragraph (j) 
of this section describes certain modifications that are not covered 
modifications and provides examples that illustrate the operation of the

[[Page 30]]

rules in paragraph (j) of this section. For rules regarding original 
issue discount on certain debt instruments that provide for a rate 
referencing a discontinued IBOR, see Sec.  1.1275-2(m). For rules 
regarding certain interests in a REMIC that provide for a rate 
referencing a discontinued IBOR, see Sec.  1.860G-1(e).
    (b) Treatment under section 1001--(1) Covered modifications. A 
covered modification of a contract is not treated as the exchange of 
property for other property differing materially in kind or in extent 
for purposes of Sec.  1.1001-1(a). For example, if the terms of a debt 
instrument that pays interest at a rate referencing the U.S.-dollar 
London Interbank Offered Rate (USD LIBOR) are modified to provide that 
the debt instrument pays interest at a qualified rate referencing the 
Secured Overnight Financing Rate published by the Federal Reserve Bank 
of New York (SOFR) and the modification is not described in paragraph 
(j) of this section, the modification is not treated as the exchange of 
property for other property differing materially in kind or in extent 
for purposes of Sec.  1.1001-1(a).
    (2) Contemporaneous noncovered modifications. If a covered 
modification is made at the same time as a noncovered modification, 
Sec.  1.1001-1(a) or Sec.  1.1001-3, as appropriate, applies to 
determine whether the noncovered modification results in the exchange of 
property for other property differing materially in kind or in extent. 
In applying Sec.  1.1001-1(a) or Sec.  1.1001-3 for this purpose, the 
covered modification is treated as part of the terms of the contract 
prior to the noncovered modification. For example, if the parties to a 
debt instrument modify the interest rate in a manner that is a covered 
modification and contemporaneously extend the final maturity date of the 
debt instrument, which is a noncovered modification, only the extension 
of the final maturity date is analyzed under Sec.  1.1001-3 and, for 
purposes of that analysis, the modified interest rate is treated as a 
term of the instrument prior to the extension of the final maturity 
date.
    (c) Effect of a covered modification on integrated transactions and 
hedging transactions--(1) In general. Except as otherwise provided in 
paragraph (c)(2) of this section, the rules in paragraphs (c)(1)(i) 
through (iv) of this section determine the effect of a covered 
modification on an integrated transaction under Sec.  1.1275-6, a 
qualified hedging transaction under Sec.  1.988-5(a), a hedging 
transaction under Sec.  1.446-4, or a qualified hedging transaction 
under Sec.  1.148-4(h).
    (i) A covered modification of one or more contracts that are part of 
an integrated transaction under Sec.  1.1275-6 is treated as not legging 
out of the integrated transaction, provided that, no later than the end 
of the 90-day period beginning on the date of the first covered 
modification of any such contract, the financial instrument that results 
from any such covered modifications satisfies the requirements to be a 
Sec.  1.1275-6 hedge (as defined in Sec.  1.1275-6(b)(2)) with respect 
to the qualifying debt instrument that results from any such covered 
modification. If a taxpayer enters into a financial instrument intended 
to mitigate the economic effect of a temporary mismatch of the legs of 
the integrated transaction during that 90-day period (a Sec.  1.1275-6 
interim hedge), the integration of the Sec.  1.1275-6 interim hedge with 
the other components of the integrated transaction during the 90-day 
period is treated as not legging into a new integrated transaction and 
the termination of the Sec.  1.1275-6 interim hedge before the end of 
the 90-day period is treated as not legging out of the existing 
integrated transaction.
    (ii) A covered modification of one or more contracts that are part 
of a qualified hedging transaction under Sec.  1.988-5(a) is treated as 
not legging out of the qualified hedging transaction, provided that, no 
later than the end of the 90-day period beginning on the date of the 
first covered modification of any such contract, the financial 
instrument or series or combination of financial instruments that 
results from any such covered modifications satisfies the requirements 
to be a Sec.  1.988-5(a) hedge (as defined in Sec.  1.988-5(a)(4)) with 
respect to the qualifying debt instrument that results from any such 
covered modification. If a taxpayer enters into a financial instrument 
intended to mitigate the economic effect of a temporary mismatch of the 
legs of the qualified

[[Page 31]]

hedging transaction during that 90-day period (a Sec.  1.988-5(a) 
interim hedge), the integration of the Sec.  1.988-5(a) interim hedge 
with the other components of the qualified hedging transaction during 
the 90-day period is treated as not legging into a new qualified hedging 
transaction and the termination of the Sec.  1.988-5(a) interim hedge 
before the end of the 90-day period is treated as not legging out of the 
existing qualified hedging transaction.
    (iii) A covered modification of one leg of a transaction subject to 
the hedge accounting rules in Sec.  1.446-4 is not treated as a 
disposition or termination (within the meaning of Sec.  1.446-4(e)(6)) 
of either leg of the transaction.
    (iv) A covered modification of a qualified hedge or of the tax-
advantaged bonds with which the qualified hedge is integrated under 
Sec.  1.148-4(h)(1) is treated as not terminating the qualified hedge 
under Sec.  1.148-4(h)(3)(iv)(B), provided that, no later than the end 
of the 90-day period beginning on the date of the first covered 
modification of either the qualified hedge or the hedged bonds, the 
qualified hedge that results from any such covered modification 
satisfies the requirements to be a qualified hedge (determined by 
applying the special rules for certain modifications of qualified hedges 
under Sec.  1.148-4(h)(3)(iv)(C)) with respect to the hedged bonds that 
result from any such covered modification. Solely for purposes of 
determining whether the qualified hedge that results from a covered 
modification satisfies the requirements to be a qualified hedge with 
respect to the hedged bonds that result from any such covered 
modification in the preceding sentence, a qualified one-time payment 
with respect to the hedge or the hedged bonds (or both) is allocated in 
a manner consistent with the allocation of a termination payment for a 
variable yield issue under Sec.  1.148-4(h)(3)(iv)(H) and treated as a 
series of periodic payments. This paragraph (c)(1)(iv) does not apply 
if, prior to any covered modifications, the qualified hedge and the tax-
advantaged bond are integrated under Sec.  1.148-4(h)(4).
    (2) Fallback rates. If a covered modification of a contract that is 
part of an integrated transaction under Sec.  1.1275-6 is described in 
paragraph (h)(1)(ii) or (iii) of this section, that covered modification 
is treated as not legging out of the integrated transaction. If a 
covered modification of a contract that is part of a qualified hedging 
transaction under Sec.  1.988-5(a) is described in paragraph (h)(1)(ii) 
or (iii) of this section, that covered modification is treated as not 
legging out of the qualified hedging transaction. If a covered 
modification of a qualified hedge or of the tax-advantaged bonds with 
which the qualified hedge is integrated under Sec.  1.148-4(h) is 
described in paragraph (h)(1)(ii) or (iii) of this section, that covered 
modification is treated as not terminating the qualified hedge under 
Sec.  1.148-4(h)(3)(iv)(B).
    (d) Coordination with provision for existing obligations under 
chapter 4. A modification of a contract is not a material modification 
of that contract for purposes of Sec.  1.1471-2(b)(2)(iv) to the extent 
the modification is a covered modification. See paragraph (b)(2) of this 
section for rules that apply for purposes of Sec.  1.1471-2(b)(2)(iv) 
when a modification to a contract includes both a covered modification 
and a contemporaneous noncovered modification.
    (e) Coordination with fast-pay stock rules. A covered modification 
of stock is not a significant modification in the terms of the stock or 
the related agreements or a significant change in the relevant facts and 
circumstances for purposes of Sec.  1.7701(l)-3(b)(2)(ii). If a covered 
modification is made at the same time as, or as part of a plan that 
includes, a noncovered modification and the noncovered modification is a 
significant modification in the terms of the stock or the related 
agreements or a significant change in the relevant facts and 
circumstances, then Sec.  1.7701(l)-3(b)(2)(ii) applies to determine 
whether the stock is fast-pay stock, taking into account all the facts 
and circumstances (including both the covered and noncovered 
modification).
    (f) Coordination with rules for investment trusts. A covered 
modification of a contract held by an investment trust does not manifest 
a power to vary the investment of the certificate holders for purposes 
of Sec.  301.7701-4(c)(1) of this

[[Page 32]]

chapter. Further, a covered modification of an ownership interest in an 
investment trust does not manifest a power to vary the investment of the 
certificate holder for purposes of Sec.  301.7701-4(c)(1) of this 
chapter.
    (g) [Reserved]
    (h) Definitions--(1) Covered modification. A covered modification is 
a modification or portion of a modification of the terms of a contract 
that is described in one or more of paragraphs (h)(1)(i) through (iii) 
of this section and that is not described in any of paragraphs (j)(1) 
through (5) of this section. Any modification of the terms of a contract 
described in section 4.02 of Rev. Proc. 2020-44, 2020-45 I.R.B. 991, or 
described in other guidance published in the Internal Revenue Bulletin 
that supplements the list of modifications described in section 4.02 of 
Rev. Proc. 2020-44 or the definitions on which that section relies (see 
Sec.  601.601(d)(2)(ii)(a) of this chapter) is treated as a covered 
modification. For purposes of this section, a modification of the terms 
of a contract includes any modification of the terms of the contract, 
regardless of the form of the modification (for example, a modification 
may be an exchange of one contract for another, an amendment to the 
existing contract, or a modification accomplished indirectly through one 
or more transactions with third parties) and regardless of whether the 
modification is evidenced by an express agreement (oral or written), 
conduct of the parties, or otherwise. For purposes of this section, a 
contract includes but is not limited to a debt instrument, a derivative 
contract, stock, an insurance contract, and a lease agreement.
    (i) The terms of the contract are modified to replace an operative 
rate that references a discontinued IBOR with a qualified rate, to add 
an obligation for one party to make a qualified one-time payment (if 
any), and to make associated modifications (if any).
    (ii) The terms of the contract are modified to include a qualified 
rate as a fallback to an operative rate that references a discontinued 
IBOR and to make associated modifications (if any).
    (iii) The terms of the contract are modified to replace a fallback 
rate that references a discontinued IBOR with a qualified rate and to 
make associated modifications (if any).
    (2) Noncovered modification. A noncovered modification is any 
modification or portion of a modification of the terms of a contract 
that is not a covered modification.
    (3) Qualified rate--(i) In general. A qualified rate is any of the 
rates described in paragraph (h)(3)(ii) of this section, provided that 
the interest rate benchmark to which the rate refers and the 
discontinued IBOR identified in paragraph (h)(1)(i), (ii), or (iii) of 
this section are based on transactions conducted in the same currency or 
are otherwise reasonably expected to measure contemporaneous variations 
in the cost of newly borrowed funds in the same currency. For purposes 
of paragraphs (h)(1)(ii) and (iii) of this section, a single qualified 
rate may be comprised of one or more fallback rates (for example, a 
waterfall of fallback rates). Paragraph (h)(3)(iii) of this section 
provides additional rules for determining whether one or more fallback 
rates constitute a qualified rate, and paragraph (h)(3)(iv) of this 
section provides examples illustrating the operation of those rules.
    (ii) Rates. The following rates are described in this paragraph 
(h)(3)(ii):
    (A) A qualified floating rate, as defined in Sec.  1.1275-5(b), but 
without regard to the limitations on multiples set forth in Sec.  
1.1275-5(b) (examples of qualified floating rates generally include 
SOFR, the Sterling Overnight Index Average, the Tokyo Overnight Average 
Rate, the Swiss Average Rate Overnight, and the euro short-term rate 
administered by the European Central Bank);
    (B) An alternative, substitute, or successor rate selected, 
endorsed, or recommended by the central bank, reserve bank, monetary 
authority, or similar institution (including any committee or working 
group thereof) as a replacement for a discontinued IBOR or its local 
currency equivalent in that jurisdiction;
    (C) A rate selected, endorsed, or recommended by the Alternative 
Reference Rates Committee as a replacement for USD LIBOR, provided that 
the Federal Reserve Bank of New York

[[Page 33]]

is an ex officio member of the Alternative Reference Rates Committee at 
the time of the selection, endorsement, or recommendation;
    (D) A rate that is determined by reference to a rate described in 
paragraph (h)(3)(ii)(A), (B), or (C) of this section, including a rate 
determined by adding or subtracting a specified number of basis points 
to or from the rate or by multiplying the rate by a specified number; 
and
    (E) A rate identified for purposes of this section as a qualified 
rate in guidance published in the Internal Revenue Bulletin (see Sec.  
601.601(d)(2)(ii)(a) of this chapter).
    (iii) Rules for fallback rates--(A) Multiple fallback rates. If the 
rate being tested as a qualified rate is comprised of more than one 
fallback rate, the rate is a qualified rate only if each individual 
fallback rate separately satisfies the requirements to be a qualified 
rate.
    (B) Indeterminable fallback rate. Except as provided in paragraph 
(h)(3)(iii)(C) of this section, if it is not possible to determine at 
the time of the modification being tested as a covered modification 
whether a fallback rate satisfies the requirements set forth in the 
first sentence of paragraph (h)(3)(i) of this section (for example, the 
calculation agent will determine the fallback rate at the time that the 
fallback rate is triggered based on factors that are not guaranteed to 
produce a rate described in paragraph (h)(3)(ii) of this section), the 
fallback rate is treated as not satisfying the requirements to be a 
qualified rate.
    (C) Fallback rate is a remote contingency. If the likelihood that 
any value will ever be determined under the contract by reference to a 
fallback rate is remote (determined at the time of the modification 
being tested as a covered modification), that fallback rate is treated 
as satisfying the requirements to be a qualified rate.
    (iv) Examples. The following examples illustrate the application of 
the rules in paragraphs (h)(3)(i) through (iii) of this section to 
qualified rates comprised of one or more fallback rates.
    (A) Example 1: Addition of a single fallback rate--(1) Facts. B is 
the issuer and L is the holder of a debt instrument that pays interest 
semiannually in U.S. dollars at a rate of six-month USD LIBOR and that 
contains no fallback provisions to address the pending discontinuation 
of six-month USD LIBOR. On July 1, 2022, B and L modify the debt 
instrument to add such fallback provisions (the new fallbacks). The new 
fallbacks provide that, upon the discontinuation of six-month USD LIBOR, 
six-month USD LIBOR will be replaced by a fallback rate equal to CME 
Group's forward-looking SOFR term rate of a six-month tenor (six-month 
CME Term SOFR) plus a fixed spread that will be determined at the time 
of six-month USD LIBOR's discontinuation. Six-month USD LIBOR will be 
discontinued on June 30, 2023.
    (2) Analysis. The fallback rate is a qualified floating rate and is, 
therefore, described in paragraph (h)(3)(ii)(A) of this section. 
Moreover, because both six-month USD LIBOR and six-month CME Term SOFR 
are based on transactions conducted in U.S. dollars, the fallback rate 
satisfies the currency requirement in paragraph (h)(3)(i) of this 
section. As further provided in paragraph (h)(3)(i) of this section, B 
and L must also apply the rules in paragraph (h)(3)(iii)(A), (B), and 
(C) of this section to determine if the fallback rate is a qualified 
rate. Because the rate being tested as a qualified rate (i.e., the 
fallback rate) is comprised of only one fallback rate, paragraph 
(h)(3)(iii)(A) of this section has no effect. As discussed elsewhere in 
this paragraph (h)(3)(iv)(A)(2), it is evident at the time of the 
fallback rate's addition that the fallback rate satisfies the 
requirements set forth in the first sentence of paragraph (h)(3)(i) of 
this section, so paragraph (h)(3)(iii)(B) of this section has no effect. 
Because it appears likely at the time of the modification that the 
fallback rate will be used to determine interest on the debt instrument, 
paragraph (h)(3)(iii)(C) of this section has no effect. In summary, the 
fallback rate is described in paragraph (h)(3)(ii)(A) of this section 
and satisfies the currency requirement in paragraph (h)(3)(i) of this 
section, and none of the rules in paragraph (h)(3)(iii) of this section 
affect the analysis. Therefore, the fallback rate is a qualified rate.

[[Page 34]]

    (B) Example 2: Addition of a single indeterminable fallback rate--
(1) Facts. The facts are the same as in paragraph (h)(3)(iv)(A)(1) of 
this section (Example 1), except that the new fallbacks provide that, 
upon the discontinuation of six-month USD LIBOR, B will select a 
replacement for six-month USD LIBOR based on the industry standard at 
the time of selection.
    (2) Analysis. As provided in paragraph (h)(3)(i) of this section, B 
and L must apply the rule in paragraph (h)(3)(iii)(B) of this section to 
determine whether the fallback rate is a qualified rate. Because it is 
not possible to determine at the time of the fallback rate's addition in 
2022 whether the fallback rate (i.e., the replacement rate that B will 
select in 2023) satisfies the requirements set forth in the first 
sentence of paragraph (h)(3)(i) of this section, the fallback rate is 
treated as not satisfying the requirements to be a qualified rate under 
paragraph (h)(3)(iii)(B) of this section. Therefore, the fallback rate 
is not a qualified rate.
    (C) Example 3: Addition of a fallback waterfall that is a qualified 
rate--(1) Facts. The facts are the same as in paragraph (h)(3)(iv)(A)(1) 
of this section (Example 1), except that the new fallbacks provide for a 
fallback waterfall. The first tier of the fallback waterfall provides 
that, upon the discontinuation of six-month USD LIBOR, six-month USD 
LIBOR will be replaced by a fallback rate equal to six-month CME Term 
SOFR plus a fixed spread that will be determined at the time of six-
month USD LIBOR's discontinuation. The second tier of the fallback 
waterfall provides that, upon the discontinuation of six-month CME Term 
SOFR, B will select a replacement for the fallback rate in the first 
tier of the fallback waterfall based on the industry standard at the 
time of selection. At the time of the fallback waterfall's addition, the 
likelihood that six-month CME Term SOFR will be discontinued is remote.
    (2) Analysis of the fallback waterfall. As provided in paragraph 
(h)(3)(i) of this section, B and L must apply the rules in paragraphs 
(h)(3)(iii)(A), (B) and (C) of this section to determine whether the 
fallback waterfall is a qualified rate. Under paragraph (h)(3)(iii)(A) 
of this section, because the rate being tested as a qualified rate 
(i.e., the fallback waterfall) is comprised of more than one fallback 
rate, the fallback waterfall is a qualified rate only if each individual 
fallback rate (i.e., fallback rates in the first and second tiers of the 
fallback waterfall) separately satisfies the requirements to be a 
qualified rate. As concluded in paragraphs (h)(3)(iv)(C)(3) and (4) of 
this section, the fallback rates in the first and second tiers of the 
fallback waterfall separately satisfy the requirements to be a qualified 
rate. Therefore, the fallback waterfall is a qualified rate.
    (3) Analysis of the first tier of the fallback waterfall. Because 
the fallback rate in the first tier of the fallback waterfall is the 
same as the fallback rate in paragraph (h)(3)(iv)(A)(1) of this section 
(Example 1), the analysis of the fallback rate in the first tier of the 
fallback waterfall is the same as the analysis of the fallback rate in 
paragraph (h)(3)(iv)(A)(2) of this section (Example 1). Accordingly, the 
fallback rate in the first tier of the fallback waterfall separately 
satisfies the requirements to be a qualified rate.
    (4) Analysis of the second tier of the fallback waterfall. The 
fallback rate in the second tier of the fallback waterfall is the same 
as the fallback rate in paragraph (h)(3)(iv)(B)(1) of this section 
(Example 2). However, unlike the fallback rate in paragraph 
(h)(3)(iv)(B)(1) of this section (Example 2), the likelihood that the 
amount of interest on the debt instrument will ever be determined by 
reference to the fallback rate in the second tier of the fallback 
waterfall is remote. Accordingly, under paragraph (h)(3)(iii)(C) of this 
section, the fallback rate in the second tier of the fallback waterfall 
is treated as satisfying the requirements to be a qualified rate.
    (D) Example 4: Addition of a fallback waterfall that is not a 
qualified rate--(1) Facts. The facts are the same as in paragraph 
(h)(3)(iv)(A)(1) of this section (Example 1), except that the new 
fallbacks provide for a fallback waterfall. The first tier of the 
fallback waterfall provides that, upon the discontinuation of six-month 
USD LIBOR, six-month USD LIBOR will be replaced

[[Page 35]]

by a stated fallback rate (Fallback Rate X). Fallback Rate X, which is 
equal to an interest rate benchmark (Benchmark X) plus a fixed spread, 
satisfies the requirements set forth in the first sentence of paragraph 
(h)(3)(i) of this section. The second tier of the fallback waterfall 
provides that, upon the discontinuation of Benchmark X, B will select a 
replacement for Fallback Rate X based on the industry standard at the 
time of selection. At the time of the fallback waterfall's addition, the 
likelihood that Benchmark X will be discontinued is not remote.
    (2) Analysis of the fallback waterfall. As provided in paragraph 
(h)(3)(i) of this section, B and L must apply the rules in paragraphs 
(h)(3)(iii)(A), (B) and (C) of this section to determine whether the 
fallback waterfall is a qualified rate. Under paragraph (h)(3)(iii)(A) 
of this section, because the rate being tested as a qualified rate 
(i.e., the fallback waterfall) is comprised of more than one fallback 
rate, the fallback waterfall is a qualified rate only if each individual 
fallback rate (i.e., the fallback rates in the first and second tiers of 
the fallback waterfall) separately satisfies the requirements to be a 
qualified rate. As concluded in paragraph (h)(3)(iv)(D)(3) of this 
section, the fallback rate in the second tier of the fallback waterfall 
is treated as not satisfying the requirements to be a qualified rate. 
Therefore, the fallback waterfall is not a qualified rate.
    (3) Analysis of the second tier of the fallback waterfall. As 
provided in paragraphs (h)(3)(i) and (h)(3)(iii)(A) of this section, B 
and L must apply the rules in paragraphs (h)(3)(iii)(B) and (C) of this 
section to determine whether the fallback rate in the second tier of the 
fallback waterfall is a qualified rate. Because the likelihood that 
Benchmark X will be discontinued is not remote, paragraph (h)(3)(iii)(C) 
of this section has no effect on the analysis of the fallback rate in 
the second tier of the fallback waterfall. Under paragraph 
(h)(3)(iii)(B) of this section, because it is not possible to determine 
at the time of the fallback waterfall's addition in 2022 whether the 
fallback rate in the second tier of the fallback waterfall (i.e., the 
replacement rate that B will select in 2023) satisfies the requirements 
set forth in the first sentence of paragraph (h)(3)(i) of this section, 
the fallback rate in the second tier of the fallback waterfall is 
treated as not satisfying the requirements to be a qualified rate.
    (4) Discontinued IBOR. A discontinued IBOR is any interbank offered 
rate described in paragraph (h)(4)(i) or (ii) of this section but only 
during the period beginning on the date of the announcement described in 
paragraph (h)(4)(i) or (ii) of this section and ending on the date that 
is one year after the date on which the administrator of the interbank 
offered rate ceases to provide the interbank offered rate.
    (i) The administrator of the interbank offered rate announces that 
the administrator has ceased or will cease to provide the interbank 
offered rate permanently or indefinitely, and no successor administrator 
is expected as of the time of the announcement to continue to provide 
the interbank offered rate; or
    (ii) The regulatory supervisor for the administrator of the 
interbank offered rate, the central bank for the currency of the 
interbank offered rate, an insolvency official with jurisdiction over 
the administrator for the interbank offered rate, a resolution authority 
with jurisdiction over the administrator for the interbank offered rate, 
a court, or an entity with similar insolvency or resolution authority 
over the administrator for the interbank offered rate announces that the 
administrator of the interbank offered rate has ceased or will cease to 
provide the interbank offered rate permanently or indefinitely, and no 
successor administrator is expected as of the time of the announcement 
to continue to provide the interbank offered rate.
    (5) Associated modification. An associated modification is a 
modification of the technical, administrative, or operational terms of a 
contract that is reasonably necessary to adopt or to implement the 
modifications described in paragraph (h)(1)(i), (ii), or (iii) of this 
section other than associated modifications. An associated modification 
also includes an incidental cash payment intended to compensate a 
counterparty

[[Page 36]]

for small valuation differences resulting from a modification of the 
administrative terms of a contract, such as the valuation differences 
resulting from a change in observation period. Examples of associated 
modifications include a change to the definition of interest period or a 
change to the timing and frequency of determining rates and making 
payments of interest (for example, delaying payment dates on a debt 
instrument by two days to allow sufficient time to compute and pay 
interest at a qualified rate computed in arrears).
    (6) Qualified one-time payment. A qualified one-time payment is a 
single cash payment that is intended to compensate the other party or 
parties for all or part of the basis difference between the discontinued 
IBOR identified in paragraph (h)(1)(i), (ii), or (iii) of this section 
and the interest rate benchmark to which the qualified rate refers.
    (i) [Reserved]
    (j) Modifications excluded from the definition of covered 
modification. A modification or portion of a modification described in 
any of paragraphs (j)(1) through (5) of this section is excluded from 
the definition of covered modification in paragraph (h)(1) of this 
section and therefore is a noncovered modification.
    (1) The terms of the contract are modified to change the amount or 
timing of contractual cash flows and that change is intended to induce 
one or more parties to perform any act necessary to consent to a 
modification to the contract described in paragraph (h)(1)(i), (ii), or 
(iii) of this section. See paragraph (j)(6)(iii) of this section 
(Example 3).
    (2) The terms of the contract are modified to change the amount or 
timing of contractual cash flows and that change is intended to 
compensate one or more parties for a modification to the contract not 
described in paragraph (h)(1)(i), (ii), or (iii) of this section. See 
paragraph (j)(6)(v) of this section (Example 5).
    (3) The terms of the contract are modified to change the amount or 
timing of contractual cash flows and that change is either a concession 
granted to a party to the contract because that party is experiencing 
financial difficulty or a concession secured by a party to the contract 
to account for the credit deterioration of another party to the 
contract. See paragraph (j)(6)(vi) of this section (Example 6).
    (4) The terms of the contract are modified to change the amount or 
timing of contractual cash flows and that change is intended to 
compensate one or more parties for a change in rights or obligations 
that are not derived from the contract being modified. See paragraph 
(j)(6)(vii) of this section (Example 7). If each contract in a given 
portfolio of contracts has the same parties, those parties modify more 
than one contract in the portfolio (each such contract is a modified 
portfolio contract), and those modifications provide for a single, 
aggregate qualified one-time payment with respect to all modified 
portfolio contracts, then the portion of the qualified one-time payment 
allocable to any one modified portfolio contract is treated for purposes 
of this paragraph (j)(4) as not intended to compensate for a change in 
rights or obligations derived from any other modified portfolio 
contract.
    (5) The terms of the contract are modified to change the amount or 
timing of contractual cash flows and the modification is identified for 
purposes of this paragraph (j)(5) in guidance published in the Internal 
Revenue Bulletin (see Sec.  601.601(d)(2)(ii)(a) of this chapter) as 
having a principal purpose of achieving a result that is unreasonable in 
light of the purpose of this section.
    (6) Examples. The following examples illustrate the operation of the 
rules in paragraphs (j)(1) through (4) of this section.
    (i) Example 1: Covered modification--(A) Facts. B is the issuer and 
L is the holder of a debt instrument that pays interest semiannually at 
a rate of six-month USD LIBOR plus 100 basis points. On July 1, 2022, B 
and L modify the debt instrument to replace that original rate with CME 
Group's forward-looking SOFR term rate of a six-month tenor (six-month 
CME Term SOFR) plus an adjustment spread of 42.826 basis points plus 100 
basis points (the whole modification is the LIBOR

[[Page 37]]

replacement modification with basis adjustment spread). B and L chose 
the adjustment spread of 42.826 basis points because that is the 
adjustment spread used or recommended by the International Swaps and 
Derivatives Association and the Alternative Reference Rates Committee 
for similar substitutions or replacements of six-month USD LIBOR with a 
tenor-adjusted variant of SOFR.
    (B) Analysis. The parties have modified the terms of the debt 
instrument to replace a rate referencing a discontinued IBOR (i.e., six-
month USD LIBOR plus 100 basis points) with a qualified rate (i.e., six-
month CME Term SOFR plus 142.826 basis points). The LIBOR replacement 
modification with basis adjustment spread is described in paragraph 
(h)(1)(i) of this section and not described in any of paragraphs (j)(1) 
through (5) of this section. Therefore, the LIBOR replacement 
modification with basis adjustment spread is a covered modification of 
the debt instrument.
    (ii) Example 2: Covered modification with qualified one-time 
payment--(A) Facts. The facts are the same as in paragraph (j)(6)(i)(A) 
of this section (Example 1), except that, instead of the LIBOR 
replacement modification with basis adjustment spread, B and L modify 
the debt instrument by replacing the original rate of six-month USD 
LIBOR plus 100 basis points with six-month CME Term SOFR plus 100 basis 
points and by obligating B to make a cash payment to L equal to the 
present value of the adjustment spread of 42.826 basis points with 
respect to the debt instrument (this payment is the basis adjustment 
payment, and the whole modification is the LIBOR replacement 
modification with basis adjustment payment).
    (B) Analysis. The parties have modified the terms of the debt 
instrument to replace a rate referencing a discontinued IBOR (i.e., six-
month USD LIBOR plus 100 basis points) with a qualified rate (i.e., six-
month CME Term SOFR plus 100 basis points) and have added an obligation 
for B to make the basis adjustment payment, which is a single cash 
payment that is intended to compensate L for the basis difference 
between the discontinued IBOR identified in paragraph (h)(1)(i) of this 
section (i.e., six-month USD LIBOR) and the interest rate benchmark to 
which the qualified rate refers (i.e., six-month CME Term SOFR). 
Accordingly, the basis adjustment payment is a qualified one-time 
payment as defined in paragraph (h)(6) of this section, and the LIBOR 
replacement modification with basis adjustment payment is described in 
paragraph (h)(1)(i) of this section. Because it is described in 
paragraph (h)(1)(i) of this section and not described in any of 
paragraphs (j)(1) through (5) of this section, the LIBOR replacement 
modification with basis adjustment payment is a covered modification of 
the debt instrument.
    (iii) Example 3: Inducement spread--(A) Facts. The facts are the 
same as in paragraph (j)(6)(i)(A) of this section (Example 1), except 
that the debt instrument is part of a widely held issue of debt with 
identical terms. Under the trust indenture applicable to the debt 
instrument, if B proposes a modification of the terms of the debt and 
all holders of the debt consent to that modification, the terms of the 
debt are modified as B proposed. In accordance with the trust indenture, 
B proposes the LIBOR replacement modification with basis adjustment 
spread on January 1, 2022. To induce holders such as L to perform the 
acts necessary to consent to the LIBOR replacement modification with 
basis adjustment spread, B also proposes to increase the interest rate 
paid to each consenting holder by an additional spread of 10 basis 
points (the inducement spread). All holders, including L, consent to B's 
proposed modifications by June 1, 2022. On July 1, 2022, the debt 
instrument is modified to implement the LIBOR replacement modification 
with basis adjustment spread and to increase the interest rate by the 
inducement spread. Once all modifications are effective, the debt 
instrument pays interest at a rate of six-month CME Term SOFR plus 
152.826 basis points.
    (B) Analysis. As concluded in paragraph (j)(6)(i)(B) of this section 
(Example 1), the portion of these modifications that implements the 
LIBOR replacement modification with basis

[[Page 38]]

adjustment spread is a covered modification of L's debt instrument. 
However, the portion of these modifications that increases the interest 
rate by the inducement spread changes the amount of cash flows on L's 
debt instrument, and that change is intended to induce L to perform the 
acts necessary to consent to a modification to the debt instrument 
described in paragraph (h)(1)(i) of this section (i.e., the LIBOR 
replacement modification with basis adjustment spread). Therefore, the 
portion of the modification that increases the interest rate by the 
inducement spread is described in paragraph (j)(1) of this section and, 
consequently, is a noncovered modification of L's debt instrument. See 
paragraph (b)(2) of this section for the treatment of a contemporaneous 
noncovered modification.
    (iv) Example 4: Consent fee--(A) Facts. The facts are the same as in 
paragraph (j)(6)(iii)(A) of this section (Example 3), except that, 
instead of proposing to increase the interest rate paid to each 
consenting holder by the inducement spread, B proposes to make a cash 
payment to each consenting holder (the consent fee) at the time of the 
modification. Thus, when the proposed modification occurs on July 1, 
2022, B pays all holders, including L, the consent fee. Once all 
modifications are effective, the debt instrument pays interest at a rate 
of six-month CME Term SOFR plus 142.826 basis points.
    (B) Analysis. As concluded in paragraph (j)(6)(i)(B) of this section 
(Example 1), the LIBOR replacement modification with basis adjustment 
spread is a covered modification of L's debt instrument. However, B's 
obligation to pay the consent fee is also a modification of L's debt 
instrument but is not a covered modification because it is not described 
in paragraph (h)(1)(i) of this section. In particular, B's obligation to 
pay the consent fee is not an associated modification because it is not 
a modification of the technical, administrative, or operational terms of 
L's debt instrument and is not intended to compensate for valuation 
differences resulting from a modification of the administrative terms of 
L's contract. Nor is the consent fee a qualified one-time payment 
because it is not intended to compensate L for any part of the basis 
difference between the discontinued IBOR identified in paragraph 
(h)(1)(i) of this section (i.e., six-month USD LIBOR) and the interest 
rate benchmark to which the qualified rate refers (i.e., six-month CME 
Term SOFR). See paragraph (b)(2) of this section for the treatment of a 
contemporaneous noncovered modification.
    (v) Example 5: Compensation for a modification to a customary 
financial covenant--(A) Facts. The facts are the same as in paragraph 
(j)(6)(i)(A) of this section (Example 1), except that, at the same time 
as and for reasons unrelated to the LIBOR replacement modification with 
basis adjustment spread, B and L also modify customary financial 
covenants in the debt instrument in a manner that benefits B. In 
exchange for the modification of customary financial covenants, B agrees 
to add another 30 basis points to the rate such that, once all 
modifications are effective, the debt instrument pays interest at a rate 
of six-month CME Term SOFR plus 172.826 basis points.
    (B) Analysis. As concluded in paragraph (j)(6)(i)(B) of this section 
(Example 1), the portion of these modifications that implements the 
LIBOR replacement modification with basis adjustment spread is a covered 
modification of the debt instrument. However, the portion of these 
modifications that modifies customary financial covenants is not related 
to the replacement of LIBOR and, therefore, is not described in any of 
paragraphs (h)(1)(i), (ii), or (iii) of this section and, therefore, is 
a noncovered modification of the debt instrument. Moreover, the portion 
of these modifications that adds 30 basis points to the rate changes the 
amount of cash flows on the debt instrument, and the parties intend that 
change to compensate L for a modification to the debt instrument not 
described in paragraph (h)(1)(i), (ii), or (iii) of this section (i.e., 
the modification of customary financial covenants). Therefore, the 
portion of these modifications that adds those 30 basis points to the 
rate is described in paragraph (j)(2) of this section and, consequently, 
is a noncovered modification of the debt instrument. See paragraph 
(b)(2) of this section for the

[[Page 39]]

treatment of a contemporaneous noncovered modification.
    (vi) Example 6: Workout of distressed debt--(A) Facts. The facts are 
the same as in paragraph (j)(6)(i)(A) of this section (Example 1), 
except that B's financial condition has deteriorated since the issue 
date of the debt instrument and, to decrease the risk of B's default or 
bankruptcy, L agrees to subtract 50 basis points from the rate such 
that, once all modifications are effective, the debt instrument pays 
interest at a rate of six-month CME Term SOFR plus 92.826 basis points.
    (B) Analysis. As concluded in paragraph (j)(6)(i)(B) of this section 
(Example 1), the portion of these modifications that implements the 
LIBOR replacement modification with basis adjustment spread is a covered 
modification of the debt instrument. However, the portion of these 
modifications that subtracts 50 basis points from the rate changes the 
amount of cash flows on the debt instrument, and that change is a 
concession granted to B because B is experiencing financial difficulty. 
Therefore, the portion of these modifications that subtracts those 50 
basis points from the rate is described in paragraph (j)(3) of this 
section and, consequently, is a noncovered modification of the debt 
instrument. See paragraph (b)(2) of this section for the treatment of a 
contemporaneous noncovered modification.
    (vii) Example 7: Change in rights or obligations not derived from 
the modified contract--(A) Facts. B is the issuer and L is the holder of 
a debt instrument (Debt X) with respect to which the facts are the same 
as in paragraph (j)(6)(i)(A) of this section (Example 1). In addition, B 
and L are the issuer and holder, respectively, of a second debt 
instrument (Debt Y). At the same time that the LIBOR replacement 
modification with basis adjustment spread occurs with respect to Debt X, 
B and L also modify customary financial covenants in Debt Y in a manner 
that benefits B. In exchange for the modification of customary financial 
covenants in Debt Y, B agrees to add another 30 basis points to the rate 
on Debt X such that, once all modifications are effective, Debt X pays 
interest at a rate of six-month CME Term SOFR plus 172.826 basis points.
    (B) Analysis. As concluded in paragraph (j)(6)(i)(B) of this section 
(Example 1), the portion of these modifications that implements the 
LIBOR replacement modification with basis adjustment spread is a covered 
modification of Debt X. However, the portion of these modifications that 
adds 30 basis points to the rate on Debt X changes the amount of cash 
flows on Debt X, and the parties intend that change to compensate L for 
a change in rights or obligations that are not derived from Debt X 
(i.e., the modification of customary financial covenants in Debt Y). 
Therefore, the portion of these modifications that adds those 30 basis 
points to the rate on Debt X is described in paragraph (j)(4) of this 
section and, consequently, is a noncovered modification of Debt X. See 
paragraph (b)(2) of this section for the treatment of a contemporaneous 
noncovered modification.
    (k) Applicability date. This section applies to a modification of 
the terms of a contract that occurs on or after March 7, 2022. A 
taxpayer may choose to apply this section to modifications of the terms 
of contracts that occur before March 7, 2022, provided that the taxpayer 
and all related parties (within the meaning of section 267(b) or section 
707(b)(1) or within the meaning of Sec.  1.150-1(b) for a taxpayer that 
is a State or local governmental unit (as defined in Sec.  1.103-1(a)) 
or a 501(c)(3) organization (as defined in section 150(a)(4))) apply 
this section to all modifications of the terms of contracts that occur 
before that date. See section 7805(b)(7).

[T.D. 9961, 87 FR 176, Jan. 4, 2022]



Sec.  1.1002-1  Sales or exchanges.

    (a) General rule. The general rule with respect to gain or loss 
realized upon the sale or exchange of property as determined under 
section 1001 is that the entire amount of such gain or loss is 
recognized except in cases where specific provisions of subtitle A of 
the code provide otherwise.
    (b) Strict construction of exceptions from general rule. The 
exceptions from the general rule requiring the recognition of all gains 
and losses, like other

[[Page 40]]

exceptions from a rule of taxation of general and uniform application, 
are strictly construed and do not extend either beyond the words or the 
underlying assumptions and purposes of the exception. Nonrecognition is 
accorded by the Code only if the exchange is one which satisfies both 
(1) the specific description in the Code of an excepted exchange, and 
(2) the underlying purpose for which such exchange is excepted from the 
general rule. The exchange must be germane to, and a necessary incident 
of, the investment or enterprise in hand. The relationship of the 
exchange to the venture or enterprise is always material, and the 
surrounding facts and circumstances must be shown. As elsewhere, the 
taxpayer claiming the benefit of the exception must show himself within 
the exception.
    (c) Certain exceptions to general rule. Exceptions to the general 
rule are made, for example, by sections 351(a), 354, 361(a), 371(a)(1), 
371(b)(1), 721, 1031, 1035 and 1036. These sections describe certain 
specific exchanges of property in which at the time of the exchange 
particular differences exist between the property parted with and the 
property acquired, but such differences are more formal than 
substantial. As to these, the Code provides that such differences shall 
not be deemed controlling, and that gain or loss shall not be recognized 
at the time of the exchange. The underlying assumption of these 
exceptions is that the new property is substantially a continuation of 
the old investment still unliquidated; and, in the case of 
reorganizations, that the new enterprise, the new corporate structure, 
and the new property are substantially continuations of the old still 
unliquidated.
    (d) Exchange. Ordinarily, to constitute an exchange, the transaction 
must be a reciprocal transfer of property, as distinguished from a 
transfer of property for a money consideration only.

                   Basis Rules of General Application



Sec.  1.1011-1  Adjusted basis.

    The adjusted basis for determining the gain or loss from the sale or 
other disposition of property is the cost or other basis prescribed in 
section 1012 or other applicable provisions of subtitle A of the code, 
adjusted to the extent provided in sections 1016, 1017, and 1018 or as 
otherwise specifically provided for under applicable provisions of 
internal revenue laws.



Sec.  1.1011-2  Bargain sale to a charitable organization.

    (a) In general. (1) If for the taxable year a charitable 
contributions deduction is allowable under section 170 by reason of a 
sale or exchange of property, the taxpayer's adjusted basis of such 
property for purposes of determining gain from such sale or exchange 
must be computed as provided in section 1011(b) and paragraph (b) of 
this section. If after applying the provisions of section 170 for the 
taxable year, including the percentage limitations of section 170(b), no 
deduction is allowable under that section by reason of the sale or 
exchange of the property, section 1011(b) does not apply and the 
adjusted basis of the property is not required to be apportioned 
pursuant to paragraph (b) of this section. In such case the entire 
adjusted basis of the property is to be taken into account in 
determining gain from the sale or exchange, as provided in Sec.  1.1011-
1(e). In ascertaining whether or not a charitable contributions 
deduction is allowable under section 170 for the taxable year for such 
purposes, that section is to be applied without regard to this section 
and the amount by which the contributed portion of the property must be 
reduced under section 170(e)(1) is the amount determined by taking into 
account the amount of gain which would have been ordinary income or 
long-term capital gain if the contributed portion of the property had 
been sold by the donor at its fair market value at the time of the sale 
or exchange.
    (2) If in the taxable year there is a sale or exchange of property 
which gives rise to a charitable contribution which is carried over 
under section 170(b)(1)(D)(ii) or section 170(d) to a subsequent taxable 
year or is postponed under section 170(a)(3) to a subsequent taxable 
year, section 1011(b) and paragraph (b) of this section must be applied 
for purposes of apportioning

[[Page 41]]

the adjusted basis of the property for the year of the sale or exchange, 
whether or not such contribution is allowable as a deduction under 
section 170 in such subsequent year.
    (3) If property is transferred subject to an indebtedness, the 
amount of the indebtedness must be treated as an amount realized for 
purposes of determining whether there is a sale or exchange to which 
section 1011(b) and this section apply, even though the transferee does 
not agree to assume or pay the indebtedness.
    (4)(i) Section 1011(b) and this section apply where property is sold 
or exchanged in return for an obligation to pay an annuity and a 
charitable contributions deduction is allowable under section 170 by 
reason of such sale or exchange.
    (ii) If in such case the annuity received in exchange for the 
property is nonassignable, or is assignable but only to the charitable 
organization to which the property is sold or exchanged, and if the 
transferor is the only annuitant or the transferor and a designated 
survivor annuitant or annuitants are the only annuitants, any gain on 
such exchange is to be reported as provided in example (8) in paragraph 
(c) of this section. In determining the period over which gain may be 
reported as provided in such example, the life expectancy of the 
survivor annuitant may not be taken into account. The fact that the 
transferor may retain the right to revoke the survivor's annuity or 
relinquish his own right to the annuity will not be considered, for 
purposes of this subdivision, to make the annuity assignable to someone 
other than the charitable organization. Gain on an exchange of the type 
described in this subdivision pursuant to an agreement which is entered 
into after December 19, 1969, and before May 3, 1971, may be reported as 
provided in example (8) in paragraph (c) of this section, even though 
the annuity is assignable.
    (iii) In the case of an annuity to which subdivision (ii) of this 
subparagraph applies, the gain unreported by the transferor with respect 
to annuity payments not yet due when the following events occur is not 
required to be included in gross income of any person where--
    (a) The transferor dies before the entire amount of gain has been 
reported and there is no surviving annuitant, or
    (b) The transferor relinquishes the annuity to the charitable 
organization.

If the transferor dies before the entire amount of gain on a two-life 
annuity has been reported, the unreported gain is required to be 
reported by the surviving annuitant or annuitants with respect to the 
annuity payments received by them.
    (b) Apportionment of adjusted basis. For purposes of determining 
gain on a sale or exchange to which this paragraph applies, the adjusted 
basis of the property which is sold or exchanged shall be that portion 
of the adjusted basis of the entire property which bears the same ratio 
to the adjusted basis as the amount realized bears to the fair market 
value of the entire property. The amount of such gain which shall be 
treated as ordinary income (or long-term capital gain) shall be that 
amount which bears the same ratio to the ordinary income (or long-term 
capital gain) which would have been recognized if the entire property 
had been sold by the donor at its fair market value at the time of the 
sale or exchange as the amount realized on the sale or exchange bears to 
the fair market value of the entire property at such time. The terms 
ordinary income and long-term capital gain, as used in this section, 
have the same meaning as they have in paragraph (a) of Sec.  1.170A-4. 
For determining the portion of the adjusted basis, ordinary income, and 
long- term capital gain allocated to the contributed portion of the 
property for purposes of applying section 170(e)(1) and paragraph (a) of 
Sec.  1.170A-4 to the contributed portion of the property, and for 
determining the donee's basis in such contributed portion, see paragraph 
(c) (2) and (4) of Sec.  1.170A-4. For determining the holding period of 
such contributed portion, see section 1223(2) and the regulations 
thereunder.
    (c) Illustrations. The application of this section may be 
illustrated by the following examples, which are supplemented by other 
examples in paragraph (d) of Sec.  1.170A-4:

    Example 1. In 1970, A, a calendar-year individual taxpayer, sells to 
a church for $4,000 stock held for more than 6 months which has

[[Page 42]]

an adjusted basis of $4,000 and a fair market value of $10,000. A's 
contribution base for 1970, as defined in section 170(b)(1)(F), is 
$100,000, and during that year he makes no other charitable 
contributions. Thus, A makes a charitable contribution to the church of 
$6,000 ($10,000 value -$4,000 amount realized). Without regard to this 
section, A is allowed a deduction under section 170 of $6,000 for his 
charitable contribution to the church, since there is no reduction under 
section 170(e)(1) with respect to the long-term capital gain. 
Accordingly, under paragraph (b) of this section the adjusted basis for 
determining gain on the bargain sale is $1,600 ($4,000 adjusted basis x 
$4,000 amount realized / $10,000 value of property). A has recognized 
long-term capital gain of $2,400 ($4,000 amount realized - $1,600 
adjusted basis) on the bargain sale.
    Example 2. The facts are the same as in example (1) except that A 
also makes a charitable contribution in 1970 of $50,000 cash to the 
church. By reason of section 170(b)(1)(A), the deduction allowed under 
section 170 for 1970 is $50,000 for the amount of cash contributed to 
the church; however, the $6,000 contribution of property is carried over 
to 1971 under section 170(d). Under paragraphs (a)(2) and (b) of this 
section the adjusted basis for determining gain for 1970 on the bargain 
sale in that year is $1,600 ($4,000 x $4,000 / $10,000). A has a 
recognized long-term capital gain for 1970 of $2,400 ($4,000 - $1,600) 
on the sale.
    Example 3. In 1970, C, a calendar-year individual taxpayer, makes a 
charitable contribution of $50,000 cash to a church. In addition, he 
sells for $4,000 to a private foundation not described in section 
170(b)(1)(E) stock held for more than 6 months which has an adjusted 
basis of $4,000 and a fair market value of $10,000. Thus, C makes a 
charitable contribution of $6,000 of such property to the private 
foundation ($10,000 value - $4,000 amount realized). C's contribution 
base for 1970, as defined in section 170(b)(1)(F), is $100,000, and 
during that year he makes no other charitable contributions. By reason 
of section 170(b)(1)(A), the deduction allowed under section 170 for 
1970 is $50,000 for the amount of cash contributed to the church. Under 
section 170(e)(1)(B)(ii) and paragraphs (a)(1) and (c)(2)(i) of Sec.  
1.170A-4, the $6,000 contribution of stock is reduced to $4,800 ($6,000 
- [50% x ($6,000 value of contributed portion of stock - $3,600 adjusted 
basis)]). However, by reason of section 170(b)(1)(B)(ii), applied 
without regard to section 1011(b), no deduction is allowed under section 
170 for 1970 or any other year for the reduced contribution of $4,800 to 
the private foundation. Accordingly, paragraph (b) of this section does 
not apply for purposes of apportioning the adjusted basis of the stock 
sold to the private foundation, and under section 1.1011-1(e) the 
recognized gain on the bargain sale is $0 ($4,000 amount realized - 
$4,000 adjusted basis).
    Example 4. In 1970, B, a calendar-year individual taxpayer, sells to 
a church for $2,000 stock held for not more than 6 months which has an 
adjusted basis of $4,000 and a fair market value of $10,000. B's 
contribution base for 1970, as defined in section 170(b)(1)(F), is 
$20,000 and during such year B makes no other charitable contributions. 
Thus, he makes a charitable contribution to the church of $8,000 
($10,000 value - $2,000 amount realized). Under paragraph (b) of this 
section the adjusted basis for determining gain on the bargain sale is 
$800 ($4,000 adjusted basis x $2,000 amount realized / $10,000 value of 
stock). Accordingly, B, has a recognized short-term capital gain of 
$1,200 ($2,000 amount realized - $800 adjusted basis) on the bargain 
sale. After applying section 1011(b) and paragraphs (a)(1) and (c)(2)(i) 
of Sec.  1.170A-4, B is allowed a charitable contributions deduction for 
1970 of $3,200 ($8,000 value of gift - [$8,000 - ($4,000 adjusted basis 
of property x $8,000 value of gift / $10,000 value of property)]).
    Example 5. The facts are the same as in Example 4 except that B 
sells the property to the church for $4,000. Thus, B makes a charitable 
contribution to the church of $6,000 ($10,000 value -$4,000 amount 
realized). Under paragraph (b) of this section the adjusted basis for 
determining gain on the bargain sale is $1,600 ($4,000 adjusted basis x 
$4,000 amount realized / $10,000 value of stock). Accordingly, B has a 
recognized short-term capital gain of $2,400 ($4,000 amount realized - 
$1,600 adjusted basis) on the bargain sale. After applying section 
1011(b) and paragraphs (a)(1) and (c)(2)(i) of Sec.  1.170A-4, B is 
allowed a charitable contributions deduction for 1970 of $2,400 ($6,000 
value of gift - [$6,000 - ($4,000 adjusted basis of property x $6,000 
value of gifts / $10,000 value of property)]).
    Example 6. The facts are the same as in Example 4 except that B 
sells the property to the church for $6,000. Thus, B makes a charitable 
contribution to the church of $4,000 ($10,000 value -$6,000 amount 
realized). Under paragraph (b) of this section the adjusted basis for 
determining gain on the bargain sale is $2,400 ($4,000 adjusted basis x 
$6,000 amount realized/$10,000 value of stock). Accordingly, B has a 
recognized short-term capital gain of $3,600 ($6,000 amount realized -
$2,400 adjusted basis) on the bargain sale. After applying section 
1011(b) and paragraphs (a)(1) and (c)(2)(i) of Sec.  1.170A-4, B is 
allowed a charitable contributions deduction for 1970 of $1,600 ($4,000 
value of gift -[$4,000 -($4,000 adjusted basis of property x $4,000 
value of gift/$10,000 value of property]).
    Example 7. In 1970, C, a calendar-year individual taxpayer, sells to 
a church for $4,000 tangible personal property used in his business for 
more than 6 months which has an

[[Page 43]]

adjusted basis of $4,000 and a fair market value of $10,000. Thus, C 
makes a charitable contribution to the church of $6,000 ($10,000 value -
$4,000 adjusted basis). C's contribution base for 1970, as defined in 
section 170(b)(1)(F) is $100,000 and during such year he makes no other 
charitable contributions. If C had sold the property at its fair market 
value at the time of its contribution, it is assumed that under section 
1245 $4,000 of the gain of $6,000 ($10,000 value -$4,000 adjusted basis) 
would have been treated as ordinary icome. Thus, there would have been 
long-term capital gain of $2,000. It is also assumed that the church 
does not put the property to an unrelated use, as defined in paragraph 
(b)(3) of Sec.  1.170A-4. Under paragraph (b) of this section the 
adjusted basis for determining gain on the bargain sale is $1,600 
($4,000 adjusted basis x $4,000 amount realized/$10,000 value of 
property). Accordingly, C has a recognized gain of $2,400 ($4,000 amount 
realized -$1,600 adjusted basis) on the bargain sale, consisting of 
ordinary income of $1,600 ($4,000 ordinary income x $4,000 amount 
realized/$10,000 value of property) and of long-term capital gain of 
$800 ($2,000 long-term gain x $4,000 amount realized/$10,000 value of 
property). After applying section 1011(b) and paragraphs (a) and 
(c)(2)(i) of Sec.  1.170A-4, C is allowed a charitable contributions 
deduction for 1970 of $3,600 ($6,000 gift -[$4,000 ordinary income x 
$6,000 value of gift/$10,000 value of property]).
    Example 8. (a) On January 1, 1970, A, a male of age 65, transfers 
capital assets consisting of securities held for more than 6 months to a 
church in exchange for a promise by the church to pay A a nonassignable 
annuity of $5,000 per year for life. The annuity is payable monthly with 
the first payment to be made on February 1, 1970. A's contribution base 
for 1970, as defined in section 170(b)(1)(F), is $200,000, and during 
that year he makes no other charitable contributions. On the date of 
transfer the securities have a fair market value of $100,000 and an 
adjusted basis to A of $20,000.
    (b) The present value of the right of a male age 65 to receive a 
life annuity of $5,000 per annum, payable in equal installments at the 
end of each monthly period, is $59,755 ($5,000 x [11.469 + 0.482]), 
determined in accordance with section 101(b) of the Code, paragraph 
(e)(1)(iii)(b)(2) of Sec.  1.101-2, and section 3 of Rev. Rul. 62-216, 
C.B. 1962-2, 30. Thus, A makes a charitable contribution to the church 
of $40,245 ($100,000 -$59,755). See Rev. Rul. 84-162, 1984-2 C.B. 200, 
for transfers for which the valuation date falls after November 23, 
1984. (See Sec.  601.601(d)(2)(ii)(b) of this chapter). For the 
applicable valuation tables in connection therewith, see Sec.  20.2031-
7(d)(6) of this chapter. See, however, Sec.  1.7520-3(b) (relating to 
exceptions to the use of standard actuarial factors in certain 
circumstances).
    (c) Under paragraph (b) of this section, the adjusted basis for 
determining gain on the bargain sale is $11,951 ($20,000 x $59,755 / 
$100,000). Accordingly, A has a recognized long-term capital gain of 
$47,804 ($59,755 - $11,951) on the bargain sale. Such gain is to be 
reported by A ratably over the period of years measured by the expected 
return multiple under the contract, but only from that portion of the 
annual payments which is a return of his investment in the contract 
under section 72 of the Code. For such purposes, the investment in the 
contract is $59,755, that is, the present value of the annuity.
    (d) The computation and application of the exclusion ratio, the 
gain, and the ordinary annuity income are as follows, determined by 
using the expected return multiple of 15.0 applicable under table I of 
Sec.  1.72-9:

A's expected return (annual payments of $5,000 x 15)........  $75,000.00
Exclusion ratio ($59,755 investment in contract divided by         79.7%
 expected return of $75,000)................................
Annual exclusion (annual payments of $5,000 x 79.7%)........   $3,985.00
Ordinary annuity income ($5,000-$3,985).....................   $1,015.00
Long-term capital gain per year ($47,804/15) with respect to   $3,186.93
 the annual exclusion.......................................
 

    (e) The exclusion ratio of 79.7 percent applies throughout the life 
of the contract. During the first 15 years of the annuity, A is required 
to report ordinary income of $1,015 and long-term capital gain of 
$3,186.93 with respect to the annuity payments he receives. After the 
total long-term capital gain of $47,804 has been reported by A, he is 
required to report only ordinary income of $1,015.00 per annum with 
respect to the annuity payments he receives.

    (d) Effective date. This section applies only to sales and exchanges 
made after December 19, 1969.
    (e) Cross reference. For rules relating to the treatment of 
liabilities on the sale or other disposition or encumbered property, see 
Sec.  1.1001-2.

[T.D. 7207, 37 FR 20798, Oct. 5, 1972, as amended by T.D. 7741, 45 FR 
81745, Dec. 12, 1980; T.D. 8176, 53 FR 5570, Feb. 25, 1988; 53 FR 11002, 
Apr. 4, 1988; T.D. 8540, 59 FR 30148, June 10, 1994]



Sec.  1.1012-1  Basis of property.

    (a) General rule. In general, the basis of property is the cost 
thereof. The cost is the amount paid for such property in cash or other 
property. This general rule is subject to exceptions stated in 
subchapter O (relating to gain or loss on the disposition of property), 
subchapter C (relating to corporate distributions and adjustments), 
subchapter K (relating to partners and

[[Page 44]]

partnerships), and subchapter P (relating to capital gains and losses), 
chapter 1 of the code.
    (b) Real estate taxes as part of cost. In computing the cost of real 
property, the purchaser shall not take into account any amount paid to 
the seller as reimbursement for real property taxes which are treated 
under section 164(d) as imposed upon the purchaser. This rule applies 
whether or not the contract of sale calls for the purchaser to reimburse 
the seller for such real estate taxes paid or to be paid by the seller. 
On the other hand, where the purchaser pays (or assumes liability for) 
real estate taxes which are treated under section 164(d) as imposed upon 
the seller, such taxes shall be considered part of the cost of the 
property. It is immaterial whether or not the contract of sale specifies 
that the sale price has been reduced by, or is in any way intended to 
reflect, real estate taxes allocable to the seller under section 164(d). 
For illustrations of the application of this paragraph, see paragraph 
(b) of Sec.  1.1001-1.
    (c) Sale of stock--(1) In general. (i) Except as provided in 
paragraph (e)(2) of this section (dealing with stock for which the 
average basis method is permitted), if a taxpayer sells or transfers 
shares of stock in a corporation that the taxpayer purchased or acquired 
on different dates or at different prices and the taxpayer does not 
adequately identify the lot from which the stock is sold or transferred, 
the stock sold or transferred is charged against the earliest lot the 
taxpayer purchased or acquired to determine the basis and holding period 
of the stock. If the earliest lot purchased or acquired is held in a 
stock certificate that represents multiple lots of stock, and the 
taxpayer does not adequately identify the lot from which the stock is 
sold or transferred, the stock sold or transferred is charged against 
the earliest lot included in the certificate. See paragraphs (c)(2), 
(c)(3), and (c)(4) of this section for rules on what constitutes an 
adequate identification.
    (ii) A taxpayer must determine the basis of identical stock (within 
the meaning of paragraph (e)(4) of this section) by averaging the cost 
of each share if the stock is purchased at separate times on the same 
calendar day in executing a single trade order and the broker executing 
the trade provides a single confirmation that reports an aggregate total 
cost or an average cost per share. However, the taxpayer may determine 
the basis of the stock by the actual cost per share if the taxpayer 
notifies the broker in writing of this intent. The taxpayer must notify 
the broker by the earlier of the date of the sale of any of the stock 
for which the taxpayer received the confirmation or one year after the 
date of the confirmation. A broker may extend the one-year period but 
the taxpayer must notify the broker no later than the date of sale of 
any of the stock.
    (2) Identification of stock. An adequate identification is made if 
it is shown that certificates representing shares of stock from a lot 
which was purchased or acquired on a certain date or for a certain price 
were delivered to the taxpayer's transferee. Except as otherwise 
provided in subparagraph (3) or (4) of this paragraph, such stock 
certificates delivered to the transferee constitute the stock sold or 
transferred by the taxpayer. Thus, unless the requirements of 
subparagraph (3) or (4) of this paragraph are met, the stock sold or 
transferred is charged to the lot to which the certificates delivered to 
the transferee belong, whether or not the taxpayer intends, or instructs 
his broker or other agent, to sell or transfer stock from a lot 
purchased or acquired on a different date or for a different price.
    (3) Identification on confirmation document. (i) Where the stock is 
left in the custody of a broker or other agent, an adequate 
identification is made if--
    (a) At the time of the sale or transfer, the taxpayer specifies to 
such broker or other agent having custody of the stock the particular 
stock to be sold or transferred, and
    (b) Within a reasonable time thereafter, confirmation of such 
specification is set forth in a written document from such broker or 
other agent.

Stock identified pursuant to this subdivision is the stock sold or 
transferred by the taxpayer, even though stock certificates from a 
different lot are delivered to the taxpayer's transferee.

[[Page 45]]

    (ii) Where a single stock certificate represents stock from 
different lots, where such certificate is held by the taxpayer rather 
than his broker or other agent, and where the taxpayer sells a part of 
the stock represented by such certificate through a broker or other 
agent, an adequate identification is made if--
    (a) At the time of the delivery of the certificate to the broker or 
other agent, the taxpayer specifies to such broker or other agent the 
particular stock to be sold or transferred, and
    (b) Within a reasonable time thereafter, confirmation of such 
specification is set forth in a written document from such broker or 
agent.

Where part of the stock represented by a single certificate is sold or 
transferred directly by the taxpayer to the purchaser or transferee 
instead of through a broker or other agent, an adequate identification 
is made if the taxpayer maintains a written record of the particular 
stock which he intended to sell or transfer.
    (4) Stock held by a trustee, executor, or administrator. (i) A 
trustee or executor or administrator of an estate holding stock (not 
left in the custody of a broker) makes an adequate identification if the 
trustee, executor, or administrator--
    (a) Specifies in writing in the books and records of the trust or 
estate the particular stock to be sold, transferred, or distributed;
    (b) In the case of a distribution, furnishes the distributee with a 
written document identifying the particular stock distributed; and
    (c) In the case of a sale or transfer through a broker or other 
agent, specifies to the broker or agent the particular stock to be sold 
or transferred, and within a reasonable time thereafter the broker or 
agent confirms the specification in a written document.
    (ii) The stock the trust or estate identifies under paragraph 
(c)(4)(i) of this section is the stock treated as sold, transferred, or 
distributed, even if the trustee, executor, or administrator delivers 
stock certificates from a different lot.
    (5) Subsequent sales. If stock identified under subparagraph (3) or 
(4) of this paragraph as belonging to a particular lot is sold, 
transferred, or distributed, the stock so identified shall be deemed to 
have been sold, transferred, or distributed, and such sale, transfer, or 
distribution will be taken into consideration in identifying the 
taxpayer's remaining stock for purposes of subsequent sales, transfers, 
or distributions.
    (6) Bonds. Paragraphs (1) through (5), (8), and (9) of this section 
apply to the sale or transfer of bonds.
    (7) Book-entry securities. (i) In applying the provisions of 
subparagraph (3)(i)(a) of this paragraph in the case of a sale or 
transfer of a book-entry security (as defined in subdivision (iii) (a) 
of this subparagraph) which is made after December 31, 1970, pursuant to 
a written instruction by the taxpayer, a specification by the taxpayer 
of the unique lot number which he has assigned to the lot which contains 
the securities being sold or transferred shall constitute specification 
as required by such subparagraph. The specification of the lot number 
shall be made either--
    (a) In such written instruction, or
    (b) In the case of a taxpayer in whose name the book entry by the 
Reserve Bank is made, in a list of lot numbers with respect to all book-
entry securities on the books of the Reserve Bank sold or transferred on 
that date by the taxpayer, provided such list is mailed to or received 
by the Reserve Bank on or before the Reserve Bank's next business day.

This subdivision shall apply only if the taxpayer assigns lot numbers in 
numerical sequence to successive purchases of securities of the same 
loan title (series) and maturity date, except that securities of the 
same loan title (series) and maturity date which are purchased at the 
same price on the same date may be included within the same lot.
    (ii) In applying paragraph (c)(3)(i)(b) of this section to a sale or 
transfer of a book-entry security pursuant to a taxpayer's written 
instruction, a confirmation is made by furnishing to the taxpayer a 
written advice of transaction from the Reserve Bank or other person 
through whom the taxpayer sells or transfers the securities. The 
confirmation document must describe the securities and specify the date 
of

[[Page 46]]

the transaction and amount of securities sold or transferred.
    (iii) For purposes of this paragraph (c)(7):
    (a) The term book-entry security means a transferable Treasury bond, 
note, certificate of indebtedness, or bill issued under the Second 
Liberty Bond Act (31 U.S.C. 774(2)), as amended, or other security of 
the United States (as defined in paragraph (c)(7)(iii)(b) of this 
section) in the form of an entry made as prescribed in 31 CFR Part 306, 
or other comparable Federal regulations, on the records of a Reserve 
Bank.
    (b) The term other security of the United States means a bond, note, 
certificate of indebtedness, bill, debenture, or similar obligation 
which is subject to the provisions of 31 CFR part 306 or other 
comparable Federal regulations and which is issued by (1) any department 
or agency of the Government of the United States, or (2) the Federal 
National Mortgage Association, the Federal Home Loan Banks, the Federal 
Home Loan Mortgage Corporation, the Federal Land Banks, the Federal 
Intermediate Credit Banks, the Banks for Cooperatives, or the Tennessee 
Valley Authority;
    (c) The term serially-numbered advice of transaction means the 
confirmation (prescribed in 31 CFR 306.116) issued by the Reserve Bank 
which is identifiable by a unique number and indicates that a particular 
written instruction to the Reserve Bank with respect to the deposit or 
withdrawal of a specified book-entry security (or securities) has been 
executed; and
    (d) The term Reserve Bank means a Federal Reserve Bank and its 
branches acting as Fiscal Agent of the United States.
    (8) Time for making identification. For purposes of this paragraph 
(c), an adequate identification of stock is made at the time of sale, 
transfer, delivery, or distribution if the identification is made no 
later than the earlier of the settlement date or the time for settlement 
required by Rule 15c6-1 under the Securities Exchange Act of 1934, 17 
CFR 240.15c6-1 (or its successor). A standing order or instruction for 
the specific identification of stock is treated as an adequate 
identification made at the time of sale, transfer, delivery, or 
distribution.
    (9) Method of writing. (i) A written confirmation, record, document, 
instruction, notification, or advice includes a writing in electronic 
format.
    (ii) A broker or agent may include the written confirmation required 
under this paragraph (c) in an account statement or other document the 
broker or agent periodically provides to the taxpayer if the broker or 
agent provides the statement or other document within a reasonable time 
after the sale or transfer.
    (10) Method for determining basis of stock. A method of determining 
the basis of stock, including a method of identifying stock sold under 
this paragraph (c) and the average basis method described in paragraph 
(e) of this section, is not a method of accounting. Therefore, a change 
in a method of determining the basis of stock is not a change in method 
of accounting to which sections 446 and 481 apply.
    (11) Effective/applicability date. Paragraphs (c)(1), (c)(4), 
(c)(6), (c)(7)(ii), (c)(7)(iii)(a), (c)(8), (c)(9), and (c)(10) of this 
section apply for taxable years beginning after October 18, 2010.
    (d) Obligations issued as part of an investment unit. For purposes 
of determining the basis of the individual elements of an investment 
unit (as defined in paragraph (b)(2)(ii)(a) of Sec.  1.1232-3) 
consisting of an obligation and an option (which is not an excluded 
option under paragraph (b)(1)(iii)(c) of Sec.  1.1232-3), security, or 
other property, the cost of such investment unit shall be allocated to 
such individual elements on the basis of their respective fair market 
values. In the case of the initial issuance of an investment unit 
consisting of an obligation and an option, security, or other property, 
where neither the obligation nor the option, security, or other property 
has a readily ascertainable fair market value, the portion of the cost 
of the unit which is allocable to the obligation shall be an amount 
equal to the issue price of the obligation as determined under paragraph 
(b)(2)(ii)(a) of Sec.  1.1232-3.
    (e) Election to use average basis method--(1) In general. 
Notwithstanding paragraph (c) of this section, and except as provided in 
paragraph (e)(8) of

[[Page 47]]

this section, a taxpayer may use the average basis method described in 
paragraph (e)(7) of this section to determine the cost or other basis of 
identical shares of stock if--
    (i) The taxpayer leaves shares of stock in a regulated investment 
company (as defined in paragraph (e)(5) of this section) or shares of 
stock acquired after December 31, 2010, in connection with a dividend 
reinvestment plan (as defined in paragraph (e)(6) of this section) with 
a custodian or agent in an account maintained for the acquisition or 
redemption, sale, or other disposition of shares of the stock; and
    (ii) The taxpayer acquires identical shares of stock at different 
prices or bases in the account.
    (2) Determination of method. (i) If a taxpayer places shares of 
stock described in paragraph (e)(1)(i) of this section acquired on or 
after January 1, 2012, in the custody of a broker (as defined by section 
6045(c)(1)), including by transfer from an account with another broker, 
the basis of the shares is determined in accordance with the broker's 
default method, unless the taxpayer notifies the broker that the 
taxpayer elects another permitted method. The taxpayer must report gain 
or loss using the method the taxpayer elects or, if the taxpayer fails 
to make an election, the broker's default method. See paragraphs 
(e)(9)(i) and (e)(9)(v), Example 2, of this section.
    (ii) The provisions of this paragraph (e)(2) are illustrated by the 
following example:

    Example. (i) In connection with a dividend reinvestment plan, 
Taxpayer B acquires 100 shares of G Company in 2012 and 100 shares of G 
Company in 2013, in an account B maintains with R Broker. B notifies R 
in writing that B elects to use the average basis method to compute the 
basis of the shares of G Company. In 2014, B transfers the shares of G 
Company to an account with S Broker. B does not notify S of the basis 
determination method B chooses to use for the shares of G Company, and 
S's default method is first-in, first-out. In 2015, B purchases 200 
shares of G Company in the account with S. In 2016, B instructs S to 
sell 150 shares of G Company.
    (ii) Because B does not notify S of a basis determination method for 
the shares of G Company, under paragraph (e)(2)(i) of this section, the 
basis of the 150 shares of G Company S sells for B in 2016 must be 
determined under S's default method, first-in, first-out.

    (3) Shares of stock. For purposes of this paragraph (e), securities 
issued by unit investment trusts described in paragraph (e)(5) of this 
section are treated as shares of stock and the term share or shares 
includes fractions of a share.
    (4) Identical stock. For purposes of this paragraph (e), identical 
shares of stock means stock with the same Committee on Uniform Security 
Identification Procedures (CUSIP) number or other security identifier 
number as permitted in published guidance of general applicability, see 
Sec.  601.601(d)(2) of this chapter.
    (5) Regulated investment company. (i) For purposes of this 
paragraph, a regulated investment company means any domestic corporation 
(other than a personal holding company as defined in section 542) which 
meets the limitations of section 851(b) and Sec.  1.851-2, and which is 
registered at all times during the taxable year under the Investment 
Company Act of 1940, as amended (15 U.S.C. 80a-1 to 80b-2), either as a 
management company, or as a unit investment trust.
    (ii) Notwithstanding subdivision (i), this paragraph shall not apply 
in the case of a unit investment trust unless it is one--
    (a) Substantially all of the assets of which consist (1) of 
securities issued by a single management company (as defined in such 
Act) and securities acquired pursuant to subdivision (b) of this 
subdivision (ii), or (2) securities issued by a single other 
corporation, and
    (b) Which has no power to invest in any other securities except 
securities issued by a single other management company, when permitted 
by such Act or the rules and regulations of the Securities and Exchange 
Commission.
    (6) Dividend reinvestment plan--(i) In general. For purposes of this 
paragraph (e), the term dividend reinvestment plan means any written 
plan, arrangement, or program under which at least 10 percent of every 
dividend (within the meaning of section 316) on any share of stock is 
reinvested in stock identical to the stock on which the dividend is 
paid. A plan is a dividend reinvestment plan if the plan documents 
require that at least 10 percent of any dividend paid

[[Page 48]]

is reinvested in identical stock even if the plan includes stock on 
which no dividends have ever been declared or paid or on which an issuer 
ceases paying dividends. A plan that holds one or more different stocks 
may permit a taxpayer to reinvest a different percentage of dividends in 
the stocks held. A dividend reinvestment plan may reinvest other 
distributions on stock, such as capital gain distributions, non-taxable 
returns of capital, and cash in lieu of fractional shares. The term 
dividend reinvestment plan includes both issuer administered dividend 
reinvestment plans and non-issuer administered dividend reinvestment 
plans.
    (ii) Acquisition of stock. Stock is acquired in connection with a 
dividend reinvestment plan if the stock is acquired under that plan, 
arrangement, or program, or if the dividends and other distributions 
paid on the stock are subject to that plan, arrangement, or program. 
Shares of stock acquired in connection with a dividend reinvestment plan 
include the initial purchase of stock in the dividend reinvestment plan, 
transfers of identical stock into the dividend reinvestment plan, 
additional periodic purchases of identical stock in the dividend 
reinvestment plan, and identical stock acquired through reinvestment of 
the dividends or other distributions paid on the stock held in the plan.
    (iii) Dividends and other distributions paid after reorganization. 
For purposes of this paragraph (e)(6), dividends and other distributions 
declared or announced before or pending a corporate action (such as a 
merger, consolidation, acquisition, split-off, or spin-off) involving 
the issuer and subsequently paid and reinvested in shares of stock in 
the successor entity or entities are treated as reinvested in shares of 
stock identical to the shares of stock of the issuer.
    (iv) Withdrawal from or termination of plan. If a taxpayer withdraws 
stock from a dividend reinvestment plan or the plan administrator 
terminates the dividend reinvestment plan, the shares of identical stock 
the taxpayer acquires after the withdrawal or termination are not 
acquired in connection with a dividend reinvestment plan. The taxpayer 
may not use the average basis method after the withdrawal or termination 
but may use any other permissible basis determination method. See 
paragraph (e)(7)(v) of this section for the basis of the shares after 
withdrawal or termination.
    (7) Computation of average basis--(i) In general. Average basis is 
determined by averaging the basis of all shares of identical stock in an 
account regardless of holding period. However, for this purpose, shares 
of stock in a dividend reinvestment plan are not identical to shares of 
stock with the same CUSIP number that are not in a dividend reinvestment 
plan. The basis of each share of identical stock in the account is the 
aggregate basis of all shares of that stock in the account divided by 
the aggregate number of shares. Unless a single-account election is in 
effect, see paragraph (e)(11) of this section, a taxpayer may not 
average together the basis of identical stock held in separate accounts 
that the taxpayer sells, exchanges, or otherwise disposes of on or after 
January 1, 2012.
    (ii) Order of disposition of shares sold or transferred. In the case 
of the sale or transfer of shares of stock to which the average basis 
method election applies, shares sold or transferred are deemed to be the 
shares first acquired. Thus, the first shares sold or transferred are 
those with a holding period of more than 1 year (long-term shares) to 
the extent that the account contains long-term shares. If the number of 
shares sold or transferred exceeds the number of long-term shares in the 
account, the excess shares sold or transferred are deemed to be shares 
with a holding period of 1 year or less (short-term shares). Any gain or 
loss attributable to shares held for more than 1 year constitutes long-
term gain or loss, and any gain or loss attributable to shares held for 
1 year or less constitutes short-term gain or loss. For example, if a 
taxpayer sells 50 shares from an account containing 100 long-term shares 
and 100 short-term shares, the shares sold or transferred are all long-
term shares. If, however, the account contains 40 long-term shares and 
100 short-term shares, the taxpayer has sold 40 long-term shares and 10 
short-term shares.

[[Page 49]]

    (iii) Transition rule from double-category method. This paragraph 
(e)(7)(iii) applies to stock for which a taxpayer uses the double-
category method under Sec.  1.1012-1(e)(3) (April 1, 2010), that the 
taxpayer acquired before April 1, 2011, and that the taxpayer sells, 
exchanges, or otherwise disposes of on or after that date. The taxpayer 
must calculate the average basis of this stock by averaging together all 
identical shares of stock in the account on April 1, 2011, regardless of 
holding period.
    (iv) Wash sales. A taxpayer must apply section 1091 and the 
associated regulations (dealing with wash sales of substantially 
identical securities) in computing average basis regardless of whether 
the stock or security sold or otherwise disposed of and the stock 
acquired are in the same account or in different accounts.
    (v) Basis after change from average basis method. Unless a taxpayer 
revokes an average basis method election under paragraph (e)(9)(iii) of 
this section, if a taxpayer changes from the average basis method to 
another basis determination method (including a change resulting from a 
withdrawal from or termination of a dividend reinvestment plan), the 
basis of each share of stock immediately after the change is the same as 
the basis immediately before the change. See paragraph (e)(9)(iv) of 
this section for rules for changing from the average basis method.
    (vi) The provisions of this paragraph (e)(7) are illustrated by the 
following examples:

    Example 1. (i) In 2011, Taxpayer C acquires 100 shares of H Company 
and enrolls them in a dividend reinvestment plan administered by T 
Custodian. C elects to use the average basis method for the shares of H 
Company enrolled in the dividend reinvestment plan. T also acquires for 
C's account 50 shares of H Company and does not enroll these shares in 
the dividend reinvestment plan.
    (ii) Under paragraph (e)(7)(i) of this section, the 50 shares of H 
Company not in the dividend reinvestment plan are not identical to the 
100 shares of H Company enrolled in the dividend reinvestment plan, even 
if they have the same CUSIP number. Accordingly, under paragraphs (e)(1) 
and (e)(7)(i) of this section, C may not average the basis of the 50 
shares of H Company with the basis of the 100 shares of H Company. Under 
paragraph (e)(1)(i) of this section, C may not use the average basis 
method for the 50 shares of H Company because the shares are not 
acquired in connection with a dividend reinvestment plan.
    Example 2. (i) Taxpayer D enters into an agreement with W Custodian 
establishing an account for the periodic acquisition of shares of L 
Company, a regulated investment company. W acquires for D's account 
shares of L Company stock on the following dates and amounts:

------------------------------------------------------------------------
                                                    Number of
                       Date                           shares      Cost
------------------------------------------------------------------------
January 8, 2010...................................         25       $200
February 8, 2010..................................         24        200
March 8, 2010.....................................         20        200
April 8, 2010.....................................         20        200
------------------------------------------------------------------------

    (ii) At D's direction, W sells 40 shares from the account on January 
15, 2011, for $10 per share or a total of $400. D elects to use the 
average basis method for the shares of L Company. The average basis for 
the shares sold on January 15, 2011, is $8.99 (total cost of shares, 
$800, divided by the total number of shares, 89).
    (iii) Under paragraph (e)(7)(ii) of this section, the shares sold 
are the shares first acquired. Thus, D realizes $25.25 ($1.01 * 25) 
long-term capital gain for the 25 shares acquired on January 8, 2010, 
and $15.15 ($1.01 * 15) short-term capital gain for 15 of the shares 
acquired on February 8, 2010.
    Example 3. (i) The facts are the same as in Example 2, except that 
on February 8, 2011, D changes to the first-in, first-out basis 
determination method. W purchases 25 shares of L Company for D on March 
8, 2011, at $12 per share. D sells 40 shares on May 8, 2011, and 34 
shares on July 8, 2012.
    (ii) Because D uses the first-in, first-out method, the 40 shares 
sold on May 8, 2011 are 9 shares purchased on February 8, 2010, 20 
shares purchased on March 8, 2010, and 11 shares purchased on April 8, 
2010. Because, under paragraph (e)(7)(v) of this section, the basis of 
the shares D owns when D changes from the average basis method remains 
the same, the basis of the shares sold on May 8, 2011, is $8.99 per 
share, not the original cost of $8.33 per share for the shares purchased 
on February 8, 2010, or $10 per share for the shares purchased on March 
8, 2010, and April 8, 2010. The basis of the shares sold on July 8, 
2012, is $8.99 per share for 9 shares purchased on April 8, 2010, and 
$12 per share for 25 shares purchased on March 8, 2011.
    Example 4. (i) The facts are the same as in Example 2, except that D 
uses the first-in, first-out method for the 40 shares sold on January 
15, 2011. W purchases 25 shares of L Company for D on March 8, 2011, at 
$12 per share. D sells 40 shares on May 8, 2011, and elects the average 
basis method.
    (ii) Because D uses the first-in, first-out method for the sale on 
January 15, 2011, the 40 shares sold are the 25 shares acquired on

[[Page 50]]

January 8, 2010, for $200 (basis $8 per share) and 15 of the 24 shares 
purchased on February 8, 2010, for $200 (basis $8.33 per share).
    (iii) Under paragraph (e)(7)(i) of this section, under the average 
basis method, the basis of all of the shares of identical stock in D's 
account is averaged. Thus, the basis of each share D sells on May 8, 
2011, after electing the average basis method, is $10.47. This figure is 
the total cost of the shares in D's account ($74.97 for the 9 shares 
acquired on February 8, 2010, $200 for the 20 shares acquired on March 
8, 2010, $200 for the 20 shares acquired on April 8, 2010, and $300 for 
the 25 shares acquired on March 8, 2011) divided by 74, the total number 
of shares ($774.97/74).

    (8) Limitation on use of average basis method for certain gift 
shares. (i) Except as provided in paragraph (e)(8)(ii) of this section, 
a taxpayer may not use the average basis method for shares of stock a 
taxpayer acquires by gift after December 31, 1920, if the basis of the 
shares (adjusted for the period before the date of the gift as provided 
in section 1016) in the hands of the donor or the last preceding owner 
by whom the shares were not acquired by gift was greater than the fair 
market value of the shares at the time of the gift. This paragraph 
(e)(8)(i) does not apply to shares the taxpayer acquires as a result of 
a taxable dividend or capital gain distribution on the gift shares.
    (ii) Notwithstanding paragraph (e)(8)(i) of this section, a taxpayer 
may use the average basis method if the taxpayer states in writing that 
the taxpayer will treat the basis of the gift shares as the fair market 
value of the shares at the time the taxpayer acquires the shares. The 
taxpayer must provide this statement when the taxpayer makes the 
election under paragraph (e)(9) of this section or when transferring the 
shares to an account for which the taxpayer has made this election, 
whichever occurs later. The statement must be effective for any gift 
shares identical to the gift shares to which the average basis method 
election applies that the taxpayer acquires at any time and must remain 
in effect as long as the election remains in effect.
    (iii) The provisions of this paragraph (e)(8) are illustrated by the 
following examples:

    Example 1. (i) Taxpayer E owns an account for the periodic 
acquisition of shares of M Company, a regulated investment company. On 
April 15, 2010, E acquires identical shares of M Company by gift and 
transfers those shares into the account. These shares had an adjusted 
basis in the hands of the donor that was greater than the fair market 
value of the shares on that date. On June 15, 2010, E sells shares from 
the account and elects to use the average basis method.
    (ii) Under paragraph (e)(8)(ii) of this section, E may elect to use 
the average basis method for shares sold or transferred from the account 
if E includes a statement with E's election that E will treat the basis 
of the gift shares in the account as the fair market value of the shares 
at the time E acquired them. See paragraph (e)(9)(ii) of this section.
    Example 2. (i) The facts are the same as in Example 1, except E 
acquires the gift shares on April 15, 2012, transfers those shares into 
the account, and used the average basis method for sales of shares of M 
Company before acquiring the gift shares. E sells shares of M Company on 
June 15, 2012.
    (ii) Under paragraph (e)(8)(ii) of this section, the basis of the 
gift shares may be averaged with the basis of the other shares of M 
Company in E's account if, when E transfers the gift shares to the 
account, E provides a statement to E's broker that E will treat the 
basis of the gift shares in the account as the fair market value of the 
shares at the time E acquired them. See paragraph (e)(9)(i) of this 
section.

    (9) Time and manner for making the average basis method election--
(i) In general. A taxpayer makes an election to use the average basis 
method for shares of stock described in paragraph (e)(1)(i) of this 
section that are covered securities (within the meaning of section 
6045(g)(3)) by notifying the custodian or agent in writing by any 
reasonable means. For purposes of this paragraph (e), a writing may be 
in electronic format. A taxpayer has not made an election within the 
meaning of this section if the taxpayer fails to notify a broker of the 
taxpayer's basis determination method and basis is determined by the 
broker's default method under paragraph (e)(2) of this section. A 
taxpayer may make the average basis method election at any time, 
effective for sales or other dispositions of stock occurring after the 
taxpayer notifies the custodian or agent. The election must identify 
each account with that custodian or agent and each stock in that account 
to which the election applies. The election may specify that it applies 
to all accounts with a custodian

[[Page 51]]

or agent, including accounts the taxpayer later establishes with the 
custodian or agent. If the election applies to gift shares, the taxpayer 
must provide the statement required by paragraph (e)(8)(ii) of this 
section, if applicable, to the custodian or agent with the taxpayer's 
election.
    (ii) Average basis method election for securities that are 
noncovered securities. A taxpayer makes an election to use the average 
basis method for shares of stock described in paragraph (e)(1)(i) of 
this section that are noncovered securities (as described in Sec.  
1.6045-1(a)(16)) on the taxpayer's income tax return for the first 
taxable year for which the election applies. A taxpayer may make the 
election on an amended return filed no later than the time prescribed 
(including extensions) for filing the original return for the taxable 
year for which the election applies. The taxpayer must indicate on the 
return that the taxpayer used the average basis method in reporting gain 
or loss on the sale or other disposition. A taxpayer must attach to the 
return the statement described in paragraph (e)(8)(ii) of this section, 
if applicable. A taxpayer making the election must maintain records 
necessary to substantiate the average basis reported.
    (iii) Revocation of election. A taxpayer may revoke an election 
under paragraph (e)(9)(i) of this section by the earlier of one year 
after the taxpayer makes the election or the date of the first sale, 
transfer, or disposition of that stock following the election. A 
custodian or agent may extend the one-year period but a taxpayer may not 
revoke an election after the first sale, transfer, or disposition of the 
stock. A revocation applies to all stock the taxpayer holds in an 
account that is identical to the shares of stock for which the taxpayer 
revokes the election. A revocation is effective when the taxpayer 
notifies, in writing by any reasonable means, the custodian or agent 
holding the stock to which the revocation applies. After revocation, the 
taxpayer's basis in the shares of stock to which the revocation applies 
is the basis before averaging.
    (iv) Change from average basis method. A taxpayer may change basis 
determination methods from the average basis method to another method 
prospectively at any time. A change from the average basis method 
applies to all identical stock the taxpayer sells or otherwise disposes 
of before January 1, 2012, that was held in any account. A change from 
the average basis method applies on an account by account basis (within 
the meaning of paragraph (e)(10) of this section) to all identical stock 
the taxpayer sells or otherwise disposes of on or after January 1, 2012. 
The taxpayer must notify, in writing by any reasonable means, the 
custodian or agent holding the stock to which the change applies. Unless 
paragraph (e)(9)(iii) of this section applies, the basis of each share 
of stock to which the change applies remains the same as the basis 
immediately before the change. See paragraph (e)(7)(v) of this section.
    (v) Examples. The provisions of this paragraph (e)(9) are 
illustrated by the following examples:

    Example 1. (i) Taxpayer F enters into an agreement with W Custodian 
establishing an account for the periodic acquisition of shares of N 
Company, a regulated investment company. W acquires for F's account 
shares of N Company on the following dates and amounts:

------------------------------------------------------------------------
                                                    Number of
                       Date                           shares      Cost
------------------------------------------------------------------------
January 8, 2012...................................         25       $200
February 8, 2012..................................         24        200
March 8, 2012.....................................         20        200
------------------------------------------------------------------------

    (ii) F notifies W that F elects, under paragraph (e)(9)(i) of this 
section, to use the average basis method for the shares of N Company. On 
May 8, 2012, under paragraph (e)(9)(iii) of this section, F notifies W 
that F revokes the average basis method election. On June 1, 2012, F 
sells 60 shares of N Company using the first-in, first-out basis 
determination method.
    (iii) Under paragraph (e)(9)(iii) of this section, the basis of the 
N Company shares upon revocation, and for purposes of determining gain 
on the sale, is $8.00 per share for each of the 25 shares purchased on 
January 8, 2012, $8.34 per share for each of the 24 shares purchased on 
February 8, 2012, and $10 per share for the remaining 11 shares 
purchased on March 8, 2012.
    Example 2. (i) The facts are the same as in Example 1, except that F 
does not notify W that F elects a basis determination method. W's 
default basis determination method is the average basis method and W 
maintains

[[Page 52]]

an averaged basis for F's shares of N Company on W's books and records.
    (ii) F has not elected the average basis method under paragraph 
(e)(9)(i) of this section. Therefore, F's notification to W on May 8, 
2012, is not an effective revocation under paragraph (e)(9)(iii) of this 
section. F's attempted revocation is, instead, notification of a change 
from the average basis method under paragraph (e)(9)(iv) of this 
section. Accordingly, the basis of each share of stock F sells on June 
1, 2012, is the basis immediately before the change, $8.70 (total cost 
of shares, $600, divided by the total number of shares, 69).

    (10) Application of average basis method account by account--(i) In 
general. For sales, exchanges, or other dispositions on or after January 
1, 2012, of stock described in paragraph (e)(1)(i) of this section, the 
average basis method applies on an account by account basis. A taxpayer 
may use the average basis method for stock in a regulated investment 
company or stock acquired in connection with a dividend reinvestment 
plan in one account but use a different basis determination method for 
identical stock in a different account. If a taxpayer uses the average 
basis method for a stock described in paragraph (e)(1)(i) of this 
section, the taxpayer must use the average basis method for all 
identical stock within that account. The taxpayer may use different 
basis determination methods for stock within an account that is not 
identical. Except as provided in paragraph (e)(10)(ii) of this section, 
a taxpayer must make separate elections to use the average basis method 
for stock held in separate accounts.
    (ii) Account rule for stock sold before 2012. A taxpayer's election 
to use the average basis method for shares of stock described in 
paragraph (e)(1)(i) of this section that a taxpayer sells, exchanges, or 
otherwise disposes of before January 1, 2012, applies to all identical 
shares of stock the taxpayer holds in any account.
    (iii) Separate account. Unless the single-account election described 
in paragraph (e)(11)(i) of this section applies, stock described in 
paragraph (e)(1)(i) of this section that is a covered security (within 
the meaning of section 6045(g)(3)) is treated as held in a separate 
account from stock that is a noncovered security (as described in Sec.  
1.6045-1(a)(16)), regardless of when acquired.
    (iv) Examples. The provisions of this paragraph (e)(10) are 
illustrated by the following examples:

    Example 1. (i) In 2012, Taxpayer G enters into an agreement with Y 
Broker establishing three accounts (G-1, G-2, and G-3) for the periodic 
acquisition of shares of P Company, a regulated investment company. Y 
makes periodic purchases of P Company for each of G's accounts. G elects 
to use the average basis method for account G-1. On July 1, 2013, G 
sells shares of P Company from account G-1.
    (ii) G is not required to use the average basis method for the 
shares of P Company that G holds in accounts G-2 and G-3 because, under 
paragraph (e)(10)(i) of this section, the average basis method election 
applies to shares sold after 2011 on an account by account basis.
    Example 2. The facts are the same as in Example 1, except that G 
also instructs Y to acquire shares of Q Company, a regulated investment 
company, for account G-1. Under paragraph (e)(10)(i) of this section, G 
may use any permissible basis determination method for the shares of Q 
Company because, under paragraph (e)(4) of this section, the shares of Q 
Company are not identical to the shares of P Company.
    Example 3. (i) The facts are the same as in Example 1, except that G 
establishes the accounts in 2011 and Y sells shares of P Company from 
account G-1 on July 1, 2011.
    (ii) For sales before 2012, under paragraph (e)(10)(ii) of this 
section, G's election applies to all accounts in which G holds identical 
stock. G must average together the basis of the shares in all accounts 
to determine the basis of the shares sold from account G-1.
    Example 4. (i) In 2011, Taxpayer H acquires 80 shares of R Company 
and enrolls them in R Company's dividend reinvestment plan. In 2012, H 
acquires 50 shares of R Company in the dividend reinvestment plan. H 
elects to use the average basis method for the shares of R Company in 
the dividend reinvestment plan. R Company does not make the single-
account election under paragraph (e)(11)(i) of this section.
    (ii) Under section 6045(g)(3) and Sec.  1.6045-1(a)(16), the 80 
shares acquired in 2011 are noncovered securities and the 50 shares 
acquired in 2012 are covered securities. Therefore, under paragraph 
(e)(10)(iii) of this section, the 80 shares are treated as held in a 
separate account from the 50 shares. H must make a separate average 
basis method election for each account and must average the basis of the 
shares in each account separately from the shares in the other account.
    Example 5. (i) B Broker maintains an account for Taxpayer J for the 
periodic acquisition of shares of S Company, a regulated

[[Page 53]]

investment company. In 2013, B purchases shares of S Company for J's 
account that are covered securities within the meaning of section 
6045(g)(3). On April 15, 2014, J inherits shares of S Company that are 
noncovered securities and transfers the shares into the account with B.
    (ii) Under paragraph (e)(10)(iii) of this section, J must treat the 
purchased shares and the inherited shares of S Company as held in 
separate accounts. J may elect to apply the average basis method to all 
the shares of S Company, but must make a separate election for each 
account, and must average the basis of the shares in each account 
separately from the shares in the other account.
    Example 6. (i) In 2010, Taxpayer K purchases stock in T Company in 
an account with C Broker. In 2012, K purchases additional T Company 
stock and enrolls that stock in a dividend reinvestment plan maintained 
by C. K elects the average basis method for the T Company stock. In 
2013, K transfers the T Company stock purchased in 2010 into the 
dividend reinvestment plan.
    (ii) Under paragraphs (e)(1)(i) and (e)(6)(ii) of this section, the 
stock purchased in 2010 is not stock acquired after December 31, 2010, 
in connection with a dividend reinvestment plan before transfer into the 
dividend reinvestment plan. Therefore, the stock is not eligible for the 
average basis method at that time.
    (iii) Once transferred into the dividend reinvestment plan in 2013, 
the stock K purchased in 2010 is acquired after December 31, 2010, in 
connection with a dividend reinvestment plan within the meaning of 
paragraph (e)(6)(ii) of this section and is eligible for the average 
basis method. Because stock purchased in 2010 is a noncovered security 
under Sec.  1.6045-1(a)(16), under paragraph (e)(10)(iii) of this 
section, the 2010 stock and the 2012 stock must be treated as held in 
separate accounts. Under paragraph (e)(7)(i) of this section, the basis 
of the 2010 shares may not be averaged with the basis of the 2012 
shares.
    Example 7. The facts are the same as in Example 6, except that K 
purchases the initial T Company stock in January 2011. Because this 
stock is a covered security under section 6045(g)(3) and Sec.  1.6045-
1(a)(15)(iv)(A), the 2011 stock and the 2012 stock are not required 
under paragraph (e)(10)(iii) of this section to be treated as held in 
separate accounts. Under paragraph (e)(7)(i) of this section, the basis 
of the 2011 shares must be averaged with the basis of the 2012 shares.
    Example 8. (i) The facts are the same as in Example 7, except that K 
purchases the additional T Company stock and enrolls in the dividend 
reinvestment plan in March 2011. In September 2011, K transfers the T 
Company stock purchased in January 2011 into the dividend reinvestment 
plan. K sells some of the T Company stock in 2012.
    (ii) Under section 6045(g)(3) and Sec.  1.6045-1(a)(16), the stock K 
purchases in January 2011 is a covered security at the time of purchase 
but the stock K purchases and enrolls in the dividend reinvestment plan 
in March 2011 is a noncovered security. However, under Sec.  1.6045-
1(a)(15)(iv)(A), the stock purchased in January 2011 becomes a 
noncovered security after it is transferred to the dividend reinvestment 
plan. Because all the shares in the dividend reinvestment plan in 
September 2011 are noncovered securities, when K sells stock in 2012, 
the January 2011 stock and the March 2011 stock are not required under 
paragraph (e)(10)(iii) of this section to be treated as held in separate 
accounts. Under paragraph (e)(7)(i) of this section, the basis of the 
January 2011 shares must be averaged with the basis of the March 2011 
shares.

    (11) Single-account election--(i) In general. Paragraph (e)(10)(iii) 
of this section does not apply if a regulated investment company or 
dividend reinvestment plan elects to treat all identical shares of stock 
described in paragraph (e)(1)(i) of this section as held in a single 
account (single-account election). The single-account election applies 
only to stock for which a taxpayer elects to use the average basis 
method that is held in separate accounts or treated as held in separate 
accounts maintained for the taxpayer and only to accounts with the same 
ownership. If a broker (as defined by section 6045(c)(1)) holds the 
stock as a nominee, the broker, and not the regulated investment company 
or dividend reinvestment plan, makes the election. The single-account 
election is irrevocable, but is void if the taxpayer revokes the average 
basis election under paragraph (e)(9)(iii) of this section.
    (ii) Scope of election. A company, plan, or broker may make a 
single-account election for one or more taxpayers for which it maintains 
an account, and for one or more stocks it holds for a taxpayer. The 
company, plan, or broker may make the election only for the shares of 
stock for which it has accurate basis information. A company, plan, or 
broker has accurate basis information if the company, plan, or broker 
neither knows nor has reason to know that the basis information is 
inaccurate. See also section 6724 and the associated regulations 
regarding standards for relief from information reporting penalties. 
Stock for which accurate

[[Page 54]]

basis information is unavailable may not be included in the single-
account election and must be treated as held in a separate account.
    (iii) Effect of single-account election. If a company, plan, or 
broker makes the single-account election, the basis of all identical 
shares of stock to which the election applies must be averaged together 
regardless of when the taxpayer acquires the shares, and all the shares 
are treated as covered securities. The single-account election applies 
to all identical stock a taxpayer later acquires in the account that is 
a covered security (within the meaning of section 6045(g)(3)). A 
company, plan, or broker may make another single-account election if, 
for example, the broker later acquires accurate basis information for a 
stock, or a taxpayer acquires identical stock in the account that is a 
noncovered security (as described in Sec.  1.6045-1(a)(16)) for which 
the company, plan, or broker has accurate basis information.
    (iv) Time and manner for making the single-account election. A 
company, plan, or broker makes the single-account election by clearly 
noting it on its books and records. The books and records must reflect 
the date of the election; the taxpayer's name, account number, and 
taxpayer identification number; the stock subject to the election; and 
the taxpayer's basis in the stock. The company, plan, or broker must 
provide copies of the books and records regarding the election to the 
taxpayer upon request. A company, plan, or broker may make the single-
account election at any time.
    (v) Notification to taxpayer. A company, plan, or broker making the 
single-account election must use reasonable means to notify the taxpayer 
of the election. Reasonable means include mailings, circulars, or 
electronic mail sent separately to the taxpayer or included with the 
taxpayer's account statement, or other means reasonably calculated to 
provide actual notice to the taxpayer. The notice must identify the 
securities subject to the election and advise the taxpayer that the 
securities will be treated as covered securities regardless of when 
acquired.
    (vi) Examples. The provisions of this paragraph (e)(11) are 
illustrated by the following examples:

    Example 1. (i) E Broker maintains Accounts A and B for Taxpayer M 
for the acquisition and disposition of shares of T Company, a regulated 
investment company. In 2011, E purchases 100 shares of T Company for M's 
Account A. E has accurate basis information for these shares. In 2012, E 
purchases 150 shares of T Company for M's Account A and 80 shares of T 
Company for M's Account B. M elects to use the average basis method for 
all shares of T Company. E makes a single-account election for M's T 
Company stock.
    (ii) The shares of T Company in Accounts A and B are held in 
separate accounts. Under section 6045(g)(3) and Sec.  1.6045-1(a)(16), 
of the shares purchased in Account A, the 100 shares purchased in 2011 
are noncovered securities and the 150 shares purchased in 2012 are 
covered securities. Under paragraph (e)(10)(iii) of this section, the 
100 shares are treated as held in a separate account from the 150 
shares. Under paragraph (e)(11)(i) of this section, the single-account 
election applies to all 330 shares of T Company in Accounts A and B. 
Thus, under paragraph (e)(11)(iii) of this section, the basis of the 330 
shares of stock is averaged together and all the shares are treated as 
covered securities.
    Example 2. The facts are the same as in Example 1, except that M 
owns Account B jointly with Taxpayer N. E may make a single-account 
election for the 250 shares of stock in M's Account A. However, under 
paragraph (e)(11)(i) of this section, E may not make a single-account 
election for Accounts A and B because the accounts do not have the same 
ownership.
    Example 3. (i) C Broker maintains an account for Taxpayer K for the 
acquisition and disposition of shares of T Company, a regulated 
investment company, and shares of V Company that K enrolls in C's 
dividend reinvestment plan. In 2011, C purchases for K's account 100 
shares of T Company in multiple lots and 80 shares of V Company in 
multiple lots that are enrolled in the dividend reinvestment plan. C has 
accurate basis information for all 100 shares of T Company and 80 shares 
of V Company. In 2012, C acquires for K's account 150 shares of T 
Company and 160 shares of V Company that are enrolled in the dividend 
reinvestment plan. K elects to use the average basis method for all the 
shares of T Company and V Company.
    (ii) Under paragraphs (e)(11)(i) and (ii) of this section, C may 
make a single-account election for the T Company stock or the V Company 
stock, or both. After making a single-account election for each stock, 
under paragraph (e)(11)(iii) of this section, the basis of all T Company 
stock is averaged together and the basis of all V Company stock

[[Page 55]]

is averaged together, regardless of when acquired, and all the shares of 
T Company and V Company are treated as covered securities.
    Example 4. The facts are the same as in Example 3, except that K 
transfers the 100 shares of T Company acquired in 2011 from an account 
with another broker into K's account with C. C does not have accurate 
basis information for 30 of the 100 shares of T Company, which K had 
acquired in two lots. Under paragraph (e)(11)(ii) of this section, C may 
make the single-account election only for the 70 shares of T Company 
stock for which C has accurate basis information. C must treat the 30 
shares of T Company for which C does not have accurate basis information 
as held in a separate account. K may use the average basis method for 
the 30 shares of T Company, but must make a separate average basis 
method election for these shares and must average the basis of these 
shares separately from the 70 shares subject to C's single-account 
election.
    Example 5. The facts are the same as in Example 3, except that C has 
made the single-account election and in 2013 K acquires additional 
shares of T Company that are covered securities in K's account with C. 
Under paragraph (e)(11)(iii) of this section, these shares of T Company 
are subject to C's single-account election.
    Example 6. The facts are the same as in Example 3, except that C has 
made the single-account election and in 2013 K inherits shares of T 
Company that are noncovered securities and transfers the shares into the 
account with C. C has accurate basis information for these shares. Under 
paragraph (e)(11)(iii) of this section, C may make a second single-
account election to include the inherited T Company shares.
    Example 7. (i) Between 2002 and 2011, Taxpayer L acquires 1,500 
shares of W Company, a regulated investment company, in an account with 
D Broker, for which L uses the average basis method, and sells 500 
shares. On January 5, 2012, based on accurate basis information, the 
averaged basis of L's remaining 1,000 shares of W Company is $24 per 
share. On January 5, 2012, L acquires 100 shares of W Company for $28 
per share and makes an average basis election for those shares under 
paragraph (e)(9)(i) of this section.
    (ii) On February 1, 2012, D makes a single-account election that 
includes all 1,100 of L's shares in W Company. Thereafter, the basis of 
L's shares of W Company is $24.36 per share (($24,000 + $2,800)/1,100). 
On September 12, 2012, under paragraph (e)(9)(iii) of this section, L 
revokes the average basis election for the 100 shares acquired on 
January 5, 2012.
    (iii) Under paragraph (e)(11)(i) of this section, D's single-account 
election is void. Therefore, the basis of the 1,000 shares of W Company 
that L acquires before 2012 is $24 per share and the basis of the 100 
shares of W Company that L acquires in 2012 is $28 per share.

    (12) Effective/applicability date. Except as otherwise provided in 
paragraphs (e)(1), (e)(2), (e)(7), (e)(9), and (e)(10) of this section, 
this paragraph (e) applies for taxable years beginning after October 18, 
2010.

    (f) Special rules. For special rules for determining the basis for 
gain or loss in the case of certain vessels acquired through the 
Maritime Commission (or its successors) or pursuant to an agreement with 
the Secretary of Commerce, see sections 510, 511, and 607 of the 
Merchant Marine Act, 1936, as amended (46 U.S.C. 1160, 1161) and parts 2 
and 3 of this chapter. For special rules for determining the unadjusted 
basis of property recovered in respect of war losses, see section 1336. 
For special rules with respect to taxable years beginning before January 
1, 1964, for determining the basis for gain or loss in the case of a 
disposition of a share of stock acquired pursuant to the timely exercise 
of a restricted stock option where the option price was between 85 
percent and 95 percent of the fair market value of the stock at the time 
the option was granted, see paragraph (b) of Sec.  1.421-5. See section 
423(c)(1) or 424(c)(1), whichever is applicable, for special rules with 
respect to taxable years ending after December 31, 1963, for determining 
the basis for gain or loss in the case of the disposition of a share of 
stock acquired pursuant to the timely exercise of a stock option 
described in such sections. See section 422(c)(1) for special rules with 
respect to taxable years ending after December 31, 1963, for determining 
the basis for gain or loss in the case of an exercise of a qualified 
stock option.
    (g) Debt instruments issued in exchange for property--(1) In 
general. For purposes of paragraph (a) of this section, if a debt 
instrument is issued in exchange for property, the cost of the property 
that is attributable to the debt instrument is the issue price of the 
debt instrument as determined under Sec.  1.1273-2 or Sec.  1.1274-2, 
whichever is applicable. If, however, the issue price of the debt 
instrument is determined under section 1273(b)(4), the cost of the 
property attributable to the debt instrument is its

[[Page 56]]

stated principal amount reduced by any unstated interest (as determined 
under section 483).
    (2) Certain tax-exempt obligations. This paragraph (g)(2) applies to 
a tax-exempt obligation (as defined in section 1275(a)(3)) that is 
issued in exchange for property and that has an issue price determined 
under Sec.  1.1274-2(j) (concerning tax-exempt contingent payment 
obligations and certain tax-exempt variable rate debt instruments 
subject to section 1274). Notwithstanding paragraph (g)(1) of this 
section, if this paragraph (g)(2) applies to a tax-exempt obligation, 
for purposes of paragraph (a) of this section, the cost of the property 
that is attributable to the obligation is the sum of the present values 
of the noncontingent payments (as determined under Sec.  1.1274-2(c)).
    (3) Effective date. This paragraph (g) applies to sales or exchanges 
that occur on or after August 13, 1996.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960]

    Editorial Note: For Federal Register citations affecting Sec.  
1.1012-1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.govinfo.gov.



Sec.  1.1012-2  Transfers in part a sale and in part a gift.

    For rules relating to basis of property acquired in a transfer which 
is in part a gift and in part a sale, see Sec. Sec.  1.170A-4(c), 
1.1011-2(b), and Sec.  1.105-4.

[T.D. 7207, 37 FR 20799, Oct. 5, 1972]



Sec.  1.1013-1  Property included in inventory.

    The basis of property required to be included in inventory is the 
last inventory value of such property in the hands of the taxpayer. The 
requirements with respect to the valuation of an inventory are stated in 
subpart D (section 471 and following), part II, subchapter E, chapter 1 
of the Code, and the regulations thereunder.



Sec.  1.1014-1  Basis of property acquired from a decedent.

    (a) General rule. The purpose of section 1014 is, in general, to 
provide a basis for property acquired from a decedent that is equal to 
the value placed upon such property for purposes of the federal estate 
tax. Accordingly, the general rule is that the basis of property 
acquired from a decedent is the fair market value of such property at 
the date of the decedent's death, or, if the decedent's executor so 
elects, at the alternate valuation date prescribed in section 2032, or 
in section 811(j) of the Internal Revenue Code (Code) of 1939. However, 
the basis of property acquired from certain decedents who died in 2010 
is determined under section 1022, if the decedent's executor made an 
election under section 301(c) of the Tax Relief, Unemployment Insurance 
Reauthorization, and Job Creation Act of 2010, Public Law 111-312 (124 
Stat. 3296, 3300 (2010)). See section 1022. Property acquired from a 
decedent includes, principally, property acquired by bequest, devise, or 
inheritance, and, in the case of decedents dying after December 31, 
1953, property required to be included in determining the value of the 
decedent's gross estate under any provision of the Code of 1954 or the 
Code of 1939. The general rule governing basis of property acquired from 
a decedent, as well as other rules prescribed elsewhere in this section, 
shall have no application if the property is sold, exchanged, or 
otherwise disposed of before the decedent's death by the person who 
acquired the property from the decedent. For general rules on the 
applicable valuation date where the executor of a decedent's estate 
elects under section 2032, or under section 811(j) of the Code of 1939, 
to value the decedent's gross estate at the alternate valuation date 
prescribed in such sections, see Sec.  1.1014-3(e).
    (b) Scope and application. With certain limitations, the general 
rule described in paragraph (a) of this section is applicable to the 
classes of property described in paragraphs (a) and (b) of Sec.  1.1014-
2, including stock in a DISC or former DISC. In the case of stock in a 
DISC or former DISC, the provisions of this section and Sec. Sec.  
1.1014-2 through 1.1014-8 are applicable, except as provided in Sec.  
1.1014-9. Special basis rules with respect to the basis of certain other 
property acquired from a decedent are set forth in paragraph (c) of 
Sec.  1.1014-2. These special rules concern certain stock or securities 
of a foreign

[[Page 57]]

personal holding company and the surviving spouse's one-half share of 
community property held with a decedent dying after October 21, 1942, 
and on or before December 31, 1947. In this section and Sec. Sec.  
1.1014-2 to 1.1014-6, inclusive, whenever the words property acquired 
from a decedent are used, they shall also mean property passed from a 
decedent, and the phrase person who acquired it from the decedent shall 
include the person to whom it passed from the decedent.
    (c) Property to which section 1014 does not apply. Section 1014 
shall have no application to the following classes of property:
    (1) Property which constitutes a right to receive an item of income 
in respect of a decedent under section 691; and
    (2) Restricted stock options described in section 421 which the 
employee has not exercised at death if the employee died before January 
1, 1957. In the case of employees dying after December 31, 1956, see 
paragraph (d)(4) of Sec.  1.421-5. In the case of employees dying in a 
taxable year ending after December 31, 1963, see paragraph (c)(4) of 
Sec.  1.421-8 with respect to an option described in part II of 
subchapter D.
    (d) Effective/applicability date. This section applies on and after 
January 19, 2017. For rules before January 19, 2017, see Sec.  1.1014-1 
as contained in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6527, 26 FR 
413, Jan. 19, 1961; T.D. 6887, 31 FR 8812, June 24, 1966; T.D. 7283, 38 
FR 20825, Aug. 3, 1973; T.D. 9811, 82 FR 6240, Jan. 19, 2017]



Sec.  1.1014-2  Property acquired from a decedent.

    (a) In general. The following property, except where otherwise 
indicated, is considered to have been acquired from a decedent and the 
basis thereof is determined in accordance with the general rule in Sec.  
1.1014-1:
    (1) Without regard to the date of the decedent's death, property 
acquired by bequest, devise, or inheritance, or by the decedent's estate 
from the decedent, whether the property was acquired under the 
decedent's will or under the law governing the descent and distribution 
of the property of decedents. However, see paragraph (c)(1) of this 
section if the property was acquired by bequest or inheritance from a 
decedent dying after August 26, 1937, and if such property consists of 
stock or securities of a foreign personal holding company.
    (2) Without regard to the date of the decedent's death, property 
transferred by the decedent during his lifetime in trust to pay the 
income for life to or on the order or direction of the decedent, with 
the right reserved to the decedent at all times before his death to 
revoke the trust.
    (3) In the case of decedents dying after December 31, 1951, property 
transferred by the decedent during his lifetime in trust to pay the 
income for life to or on the order or direction of the decedent with the 
right reserved to the decedent at all times before his death to make any 
change in the enjoyment thereof through the exercise of a power to 
alter, amend, or terminate the trust.
    (4) Without regard to the date of the decedent's death, property 
passing without full and adequate consideration under a general power of 
appointment exercised by the decedent by will. (See section 2041(b) for 
definition of general power of appointment.)
    (5) In the case of decedents dying after December 31, 1947, property 
which represents the surviving spouse's one-half share of community 
property held by the decedent and the surviving spouse under the 
community property laws of any State, Territory, or possession of the 
United States or any foreign country, if at least one-half of the whole 
of the community interest in that property was includible in determining 
the value of the decedent's gross estate under part III, chapter 11 of 
the Internal Revenue Code of 1954 (relating to the estate tax) or 
section 811 of the Internal Revenue Code of 1939. It is not necessary 
for the application of this subparagraph that an estate tax return be 
required to be filed for the estate of the decedent or that an estate 
tax be payable.
    (6) In the case of decedents dying after December 31, 1950, and 
before January 1, 1954, property which represents the survivor's 
interest in a joint and survivor's annuity if the value of any part of 
that interest was required to be included in determining the value of

[[Page 58]]

the decedent's gross estate under section 811 of the Internal Revenue 
Code of 1939. It is necessary only that the value of a part of the 
survivor's interest in the annuity be includible in the gross estate 
under section 811. It is not necessary for the application of this 
subparagraph that an estate tax return be required to be filed for the 
estate of the decedent or that an estate tax be payable.
    (b) Property acquired from a decedent dying after December 31, 
1953--(1) In general. In addition to the property described in paragraph 
(a) of this section, and except as otherwise provided in subparagraph 
(3) of this paragraph, in the case of a decedent dying after December 
31, 1953, property shall also be considered to have been acquired from 
the decedent to the extent that both of the following conditions are 
met: (i) The property was acquired from the decedent by reason of death, 
form of ownership, or other conditions (including property acquired 
through the exercise or non-exercise of a power of appointment), and 
(ii) the property is includible in the decedent's gross estate under the 
provisions of the Internal Revenue Code of 1954, or the Internal Revenue 
Code of 1939, because of such acquisition. The basis of such property in 
the hands of the person who acquired it from the decedent shall be 
determined in accordance with the general rule in Sec.  1.1014-1. See, 
however, Sec.  1.1014-6 for special adjustments if such property is 
acquired before the death of the decedent. See also subparagraph (3) of 
this paragraph for a description of property not within the scope of 
this paragraph.
    (2) Rules for the application of subparagraph (1) of this paragraph. 
Except as provided in subparagraph (3) of this paragraph, this paragraph 
generally includes all property acquired from a decedent, which is 
includible in the gross estate of the decedent if the decedent died 
after December 31, 1953. It is not necessary for the application of this 
paragraph that an estate tax return be required to be filed for the 
estate of the decedent or that an estate tax be payable. Property 
acquired prior to the death of a decedent which is includible in the 
decedent's gross estate, such as property transferred by a decedent in 
contemplation of death, and property held by a taxpayer and the decedent 
as joint tenants or as tenants by the entireties is within the scope of 
this paragraph. Also, this paragraph includes property acquired through 
the exercise or nonexercise of a power of appointment where such 
property is includible in the decedent's gross estate. It does not 
include property not includible in the decedent's gross estate such as 
property not situated in the United States acquired from a nonresident 
who is not a citizen of the United States.
    (3) Exceptions to application of this paragraph. The rules in this 
paragraph are not applicable to the following property:
    (i) Annuities described in section 72;
    (ii) Stock or securities of a foreign personal holding company as 
described in section 1014(b)(5) (see paragraph (c)(1) of this section);
    (iii) Property described in any paragraph other than paragraph (9) 
of section 1014(b). See paragraphs (a) and (c) of this section.

In illustration of subdivision (ii), assume that A acquired by gift 
stock of a character described in paragraph (c)(1) of this section from 
a donor and upon the death of the donor the stock was includible in the 
donor's estate as being a gift in contemplation of death. A's basis in 
the stock would not be determined by reference to its fair market value 
at the donor's death under the general rule in section 1014(a). 
Furthermore, the special basis rules prescribed in paragraph (c)(1) of 
this section are not applicable to such property acquired by gift in 
contemplation of death. It will be necessary to refer to the rules in 
section 1015(a) to determine the basis.
    (c) Special basis rules with respect to certain property acquired 
from a decedent--(1) Stock or securities of a foreign personal holding 
company. The basis of certain stock or securities of a foreign 
corporation which was a foreign personal holding company with respect to 
its taxable year next preceding the date of the decedent's death is 
governed by a special rule. If such stock was acquired from a decedent 
dying after August 26, 1937, by bequest or inheritance, or by the 
decedent's estate

[[Page 59]]

from the decedent, the basis of the property in the hands of the person 
who so acquired it (notwithstanding any other provision of section 1014) 
shall be the fair market value of such property at the date of the 
decedent's death or the adjusted basis of the stock in the hands of the 
decedent, whichever is lower.
    (2) Spouse's interest in community property of decedent dying after 
October 21, 1942, and on or before December 31, 1947. In the case of a 
decedent dying after October 21, 1942, and on or before December 31, 
1947, a special rule is provided for determining the basis of such part 
of any property, representing the surviving spouse's one-half share of 
property held by the decedent and the surviving spouse under the 
community property laws of any State, Territory, or possession of the 
United States or any foreign country, as was included in determining the 
value of the decedent's gross estate, if a tax under chapter 3 of the 
Internal Revenue Code of 1939 was payable upon the decedent's net 
estate. In such case the basis shall be the fair market value of such 
part of the property at the date of death (or the optional valuation 
elected under section 811(j) of the Internal Revenue Code of 1939) or 
the adjusted basis of the property determined without regard to this 
subparagraph, whichever is the higher.



Sec.  1.1014-3  Other basis rules.

    (a) Fair market value. For purposes of this section and Sec.  
1.1014-1, the value of property as of the date of the decedent's death 
as appraised for the purpose of the Federal estate tax or the alternate 
value as appraised for such purpose, whichever is applicable, shall be 
deemed to be its fair market value. If no estate tax return is required 
to be filed under section 6018 (or under section 821 or 864 of the 
Internal Revenue Code of 1939), the value of the property appraised as 
of the date of the decedent's death for the purpose of State inheritance 
or transmission taxes shall be deemed to be its fair market value and no 
alternate valuation date shall be applicable.
    (b) Property acquired from a decedent dying before March 1, 1913. If 
the decedent died before March 1, 1913, the fair market value on that 
date is taken in lieu of the fair market value on the date of death, but 
only to the same extent and for the same purposes as the fair market 
value on March 1, 1913, is taken under section 1053.
    (c) Reinvestments by a fiduciary. The basis of property acquired 
after the death of the decedent by a fiduciary as an investment is the 
cost or other basis of such property to the fiduciary, and not the fair 
market value of such property at the death of the decedent. For example, 
the executor of an estate purchases stock of X company at a price of 
$100 per share with the proceeds of the sale of property acquired from a 
decedent. At the date of the decedent's death the fair market value of 
such stock was $98 per share. The basis of such stock to the executor or 
to a legatee, assuming the stock is distributed, is $100 per share.
    (d) Reinvestments of property transferred during life. Where 
property is transferred by a decedent during life and the property is 
sold, exchanged, or otherwise disposed of before the decedent's death by 
the person who acquired the property from the decedent, the general rule 
stated in paragraph (a) of Sec.  1.1014-1 shall not apply to such 
property. However, in such a case, the basis of any property acquired by 
such donee in exchange for the original property, or of any property 
acquired by the donee through reinvesting the proceeds of the sale of 
the original property, shall be the fair market value of the property 
thus acquired at the date of the decedent's death (or applicable 
alternate valuation date) if the property thus acquired is properly 
included in the decedent's gross estate for Federal estate tax purposes. 
These rules also apply to property acquired by the donee in any further 
exchanges or in further reinvestments. For example, on January 1, 1956, 
the decedent made a gift of real property to a trust for the benefit of 
his children, reserving to himself the power to revoke the trust at 
will. Prior to the decedent's death, the trustee sold the real property 
and invested the proceeds in stock of the Y company at $50 per share. At 
the time of the decedent's death, the value of such stock was $75 per 
share. The corpus of the trust was required to

[[Page 60]]

be included in the decedent's gross estate owing to his reservation of 
the power of revocation. The basis of the Y company stock following the 
decedent's death is $75 per share. Moreover, if the trustee sold the Y 
Company stock before the decedent's death for $65 a share and reinvested 
the proceeds in Z company stock which increased in value to $85 per 
share at the time of the decedent's death, the basis of the Z company 
stock following the decedent's death would be $85 per share.
    (e) Alternate valuation dates. Section 1014(a) provides a special 
rule applicable in determining the basis of property described in Sec.  
1.1014-2 where--
    (1) The property is includible in the gross estate of a decedent who 
died after October 21, 1942, and
    (2) The executor elects for estate tax purposes under section 2032, 
or section 811(j) of the Internal Revenue Code of 1939, to value the 
decedent's gross estate at the alternate valuation date prescribed in 
such sections.

In those cases, the value applicable in determining the basis of the 
property is not the value at the date of the decedent's death but (with 
certain limitations) the value at the date one year after his death if 
not distributed, sold, exchanged, or otherwise disposed of in the 
meantime. If such property was distributed, sold, exchanged, or 
otherwise disposed of within one year after the date of the decedent's 
death by the person who acquired it from the decedent, the value 
applicable in determining the basis is its value as of the date of such 
distribution, sale, exchange, or other disposition. For illustrations of 
the operation of this paragraph, see the estate tax regulations under 
section 2032.



Sec.  1.1014-4  Uniformity of basis; adjustment to basis.

    (a) In general. (1) The basis of property acquired from a decedent, 
as determined under section 1014(a) or section 1022, is uniform in the 
hands of every person having possession or enjoyment of the property at 
any time under the will or other instrument or under the laws of descent 
and distribution. The principle of uniform basis means that the basis of 
the property (to which proper adjustments must, of course, be made) will 
be the same, or uniform, whether the property is possessed or enjoyed by 
the executor or administrator, the heir, the legatee or devisee, or the 
trustee or beneficiary of a trust created by a will or an inter vivos 
trust. In determining the amount allowed or allowable to a taxpayer in 
computing taxable income as deductions for depreciation or depletion 
under section 1016(a)(2), the uniform basis of the property shall at all 
times be used and adjusted. The sale, exchange, or other disposition by 
a life tenant or remainderman of his interest in property will, for 
purposes of this section, have no effect upon the uniform basis of the 
property in the hands of those who acquired it from the decedent. Thus, 
gain or loss on sale of trust assets by the trustee will be determined 
without regard to the prior sale of any interest in the property. 
Moreover, any adjustment for depreciation shall be made to the uniform 
basis of the property without regard to such prior sale, exchange, or 
other disposition.
    (2) Under the law governing wills and the distribution of the 
property of decedents, all titles to property acquired by bequest, 
devise, or inheritance relate back to the death of the decedent, even 
though the interest of the person taking the title was, at the date of 
death of the decedent, legal, equitable, vested, contingent, general, 
specific, residual, conditional, executory, or otherwise. Accordingly, 
there is a common acquisition date for all titles to property acquired 
from a decedent within the meaning of section 1014 or section 1022, and, 
for this reason, a common or uniform basis for all such interests. For 
example, if distribution of personal property left by a decedent is not 
made until one year after his death, the basis of such property in the 
hands of the legatee is its fair market value at the time when the 
decedent died, and not when the legatee actually received the property. 
If the bequest is of the residue to trustees in trust, and the executors 
do not distribute the residue to such trustees until five years after 
the death of the decedent, the basis of each piece of property left by 
the decedent and thus received, in the hands of the trustees, is its 
fair market

[[Page 61]]

value at the time when the decedent dies. If the bequest is to trustees 
in trust to pay to A during his lifetime the income of the property 
bequeathed, and after his death to distribute such property to the 
survivors of a class, and upon A's death the property is distributed to 
the taxpayer as the sole survivor, the basis of such property, in the 
hands of the taxpayer, is its fair market value at the time when the 
decedent died. The purpose of the Code in prescribing a general uniform 
basis rule for property acquired from a decedent is, on the one hand, to 
tax the gain, in respect of such property, to him who realizes it 
(without regard to the circumstances that at the death of the decedent 
it may have been quite uncertain whether the taxpayer would take or gain 
anything); and, on the other hand, not to recognize as gain any element 
of value resulting solely from the circumstance that the possession or 
enjoyment of the taxpayer was postponed. Such postponement may be, for 
example, until the administration of the decedent's estate is completed, 
until the period of the possession or enjoyment of another has 
terminated, or until an uncertain event has happened. It is the increase 
or decrease in the value of property reflected in a sale or other 
disposition which is recognized as the measure of gain or loss.
    (3) The principles stated in subparagraphs (1) and (2) of this 
paragraph do not apply to property transferred by an executor, 
administrator or trustee, to an heir, legatee, devisee or beneficiary 
under circumstances such that the transfer constitutes a sale or 
exchange. In such a case, gain or loss must be recognized by the 
transferor to the extent required by the revenue laws, and the 
transferee acquires a basis equal to the fair market value of the 
property on the date of the transfer. Thus, for example, if the trustee 
of a trust created by will transfers to a beneficiary, in satisfaction 
of a specific bequest of $10,000, securities which had a fair market 
value of $9,000 on the date of the decedent's death (the applicable 
valuation date) and $10,000 on the date of the transfer, the trust 
realizes a taxable gain of $1,000 and the basis of the securities in the 
hands of the beneficiary would be $10,000. As a further example, if the 
executor of an estate transfers to a trust property worth $200,000, 
which had a fair market value of $175,000 on the date of the decedent's 
death (the applicable valuation date), in satisfaction of the decedent's 
bequest in trust for the benefit of his wife of cash or securities to be 
selected by the executor in an amount sufficient to utilize the marital 
deduction to the maximum extent authorized by law (after taking into 
consideration any other property qualifying for the marital deduction), 
capital gain in the amount of $25,000 would be realized by the estate 
and the basis of the property in the hands of the trustees would be 
$200,000. If, on the other hand, the decedent bequeathed a fraction of 
his residuary estate to a trust for the benefit of his wife, which 
fraction will not change regardless of any fluctuations in value of 
property in the decedent's estate after his death, no gain or loss would 
be realized by the estate upon transfer of property to the trust, and 
the basis of the property in the hands of the trustee would be its fair 
market value on the date of the decedent's death or on the alternate 
valuation date.
    (b) Multiple interests. Where more than one person has an interest 
in property acquired from a decedent, the basis of such property shall 
be determined and adjusted without regard to the multiple interests. The 
basis of computing gain or loss on the sale of any one of such multiple 
interests shall be determined under Sec.  1.1014-5. Thus, the deductions 
for depreciation and for depletion allowed or allowable, under sections 
167 and 611, to a legal life tenant as if the life tenant were the 
absolute owner of the property, constitute an adjustment to the basis of 
the property not only in the hands of the life tenant, but also in the 
hands of the remainderman and every other person to whom the same 
uniform basis is applicable. Similarly, the deductions allowed or 
allowable under sections 167 and 611, both to the trustee and to the 
trust beneficiaries, constitute an adjustment to the basis of the 
property not only in the hands of the trustee, but also in the hands of 
the trust beneficiaries and every other person to whom the uniform basis 
is applicable. See, however, section 262. Similarly,

[[Page 62]]

adjustments in respect of capital expenditures or losses, tax-free 
distributions, or other distributions applicable in reduction of basis, 
or other items for which the basis is adjustable are made without regard 
to which one of the persons to whom the same uniform basis is applicable 
makes the capital expenditures or sustains the capital losses, or to 
whom the tax-free or other distributions are made, or to whom the 
deductions are allowed or allowable. See Sec.  1.1014-6 for adjustments 
in respect of property acquired from a decedent prior to his death.
    (c) Records. The executor or other legal representative of the 
decedent, the fiduciary of a trust under a will, the life tenant and 
every other person to whom a uniform basis under this section is 
applicable, shall maintain records showing in detail all deductions, 
distributions, or other items for which adjustment to basis is required 
to be made by sections 1016 and 1017, and shall furnish to the district 
director such information with respect to those adjustments as he may 
require.
    (d) Effective/applicability date. This section applies on and after 
January 19, 2017. For rules before January 19, 2017, see Sec.  1.1014-4 
as contained in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. , 45 FR 6089, 1980; T.D. 9811, 82 FR 6241, Jan. 19, 
2017]



Sec.  1.1014-5  Gain or loss.

    (a) Sale or other disposition of a life interest, remainder 
interest, or other interest in property acquired from a decedent. (1) 
Except as provided in paragraph (b) or (c) of this section with respect 
to the sale or other disposition after October 9, 1969, of a term 
interest in property, gain or loss from a sale or other disposition of a 
life interest, remainder interest, or other interest in property 
acquired from a decedent is determined by comparing the amount of the 
proceeds with the amount of that part of the adjusted uniform basis 
which is assignable to the interest so transferred. The adjusted uniform 
basis is the uniform basis of the entire property adjusted to the date 
of sale or other disposition of any such interest as required by 
sections 1016 and 1017. The uniform basis is the unadjusted basis of the 
entire property determined immediately after the decedent's death under 
the applicable sections of part II of subchapter O of chapter 1 of the 
Code.
    (2) Except as provided in paragraph (b) of this section, the proper 
measure of gain or loss resulting from a sale or other disposition of an 
interest in property acquired from a decedent is so much of the increase 
or decrease in the value of the entire property as is reflected in such 
sale or other disposition. Hence, in ascertaining the basis of a life 
interest, remainder interest, or other interest which has been so 
transferred, the uniform basis rule contemplates that proper adjustments 
will be made to reflect the change in relative value of the interests on 
account of the passage of time.
    (3) The factors set forth in the tables contained in Sec.  20.2031-7 
or, for certain prior periods, Sec.  20.2031-7A, of part 20 of this 
chapter (Estate Tax Regulations) shall be used in the manner provided 
therein in determining the basis of the life interest, the remainder 
interest, or the term certain interest in the property on the date such 
interest is sold. The basis of the life interest, the remainder 
interest, or the term certain interest is computed by multiplying the 
uniform basis (adjusted to the time of the sale) by the appropriate 
factor. In the case of the sale of a life interest or a remainder 
interest, the factor used is the factor (adjusted where appropriate) 
which appears in the life interest or the remainder interest column of 
the table opposite the age (on the date of the sale) of the person at 
whose death the life interest will terminate. In the case of the sale of 
a term certain interest, the factor used is the factor (adjusted where 
appropriate) which appears in the term certain column of the table 
opposite the number of years remaining (on the date of sale) before the 
term certain interest will terminate.
    (b) Sale or other disposition of certain term interests--(1) In 
general. In determining gain or loss from the sale or other disposition 
after October 9, 1969, of a term interest in property (as defined in 
Sec.  1.1001-1(f)(2)) the adjusted basis of which is determined 
pursuant,

[[Page 63]]

or by reference, to section 1014 (relating to the basis of property 
acquired from a decedent), section 1015 (relating to the basis of 
property acquired by gift or by a transfer in trust), or section 1022 
(relating to the basis of property acquired from certain decedents who 
died in 2010), that part of the adjusted uniform basis assignable under 
the rules of paragraph (a) of this section to the interest sold or 
otherwise disposed of shall be disregarded to the extent and in the 
manner provided by section 1001(e) and Sec.  1.1001-1(f).
    (2) Effective/applicability date. The provisions of paragraph (b)(1) 
of this section relating to section 1022 are effective on and after 
January 19, 2017. For rules before January 19, 2017, see Sec.  1.1014-5 
as contained in 26 CFR part 1 revised as of April 1, 2016.
    (c) Sale or other disposition of a term interest in a tax-exempt 
trust--(1) In general. In the case of any sale or other disposition by a 
taxable beneficiary of a term interest (as defined in Sec.  1.1001-
1(f)(2)) in a tax-exempt trust (as defined in paragraph (c)(2) of this 
section) to which section 1001(e)(3) applies, the taxable beneficiary's 
share of adjusted uniform basis, determined as of (and immediately 
before) the sale or disposition of that interest, is--
    (i) That part of the adjusted uniform basis assignable to the term 
interest of the taxable beneficiary under the rules of paragraph (a) of 
this section reduced, but not below zero, by
    (ii) An amount determined by applying the same actuarial share 
applied in paragraph (c)(1)(i) of this section to the sum of--
    (A) The trust's undistributed net ordinary income within the meaning 
of section 664(b)(1) and Sec.  1.664-1(d)(1)(ii)(a)(1) for the current 
and prior taxable years of the trust, if any; and
    (B) The trust's undistributed net capital gains within the meaning 
of section 664(b)(2) and Sec.  1.664-1(d)(1)(ii)(a)(2) for the current 
and prior taxable years of the trust, if any.
    (2) Tax-exempt trust defined. For purposes of this section, the term 
tax-exempt trust means a charitable remainder annuity trust or a 
charitable remainder unitrust as defined in section 664.
    (3) Taxable beneficiary defined. For purposes of this section, the 
term taxable beneficiary means any person other than an organization 
described in section 170(c) or exempt from taxation under section 
501(a).
    (4) Effective/applicability date. This paragraph (c) and paragraph 
(d) Example 7 and Example 8 of this section apply to sales and other 
dispositions of interests in tax-exempt trusts occurring on or after 
January 16, 2014, except for sales or dispositions occurring pursuant to 
a binding commitment entered into before January 16, 2014.
    (d) Illustrations. The application of this section may be 
illustrated by the following examples, in which references are made to 
the actuarial tables contained in part 20 of this chapter (Estate Tax 
Regulations):

    Example 1. Securities worth $500,000 at the date of decedent's death 
on January 1, 1971, are bequeathed to his wife, W, for life, with 
remainder over to his son, S. W is 48 years of age when the life 
interest is acquired. The estate does not elect the alternate valuation 
allowed by section 2032. By reference to Sec.  20.2031-7A(c), the life 
estate factor for age 48, female, is found to be 0.77488 and the 
remainder factor for such age is found to be 0.22512. Therefore, the 
present value of the portion of the uniform basis assigned to W's life 
interest is $387,440 ($500,000 x 0.77488), and the present value of the 
portion of the uniform basis assigned to S's remainder interest is 
$112,560 ($500,000 x 0.22512). W sells her life interest to her nephew, 
A, on February 1, 1971, for $370,000, at which time W is still 48 years 
of age. Pursuant to section 1001(e), W realizes no loss; her gain is 
$370,000, the amount realized from the sale. A has a basis of $370,000 
which he can recover by amortization deductions over W's life 
expectancy.
    Example 2. The facts are the same as in example (1) except that W 
retains the life interest for 12 years, until she is 60 years of age, 
and then sells it to A on February 1, 1983, when the fair market value 
of the securities has increased to $650,000. By reference to Sec.  
20.2031-7A(c), the life estate factor for age 60, female, is found to be 
0.63226 and the remainder factor for such age is found to be 0.36774. 
Therefore, the present value on February 1, 1983, of the portion of the 
uniform basis assigned to W's life interest is $316,130 ($500,000 x 
0.63226) and the present value on that date of the portion of the 
uniform basis assigned to S's remainder interest is $183,870 ($500,000 x 
0.36774). W sells her life interest for $410,969, that being the 
commuted value

[[Page 64]]

of her remaining life interest in the securities as appreciated 
($650,000 x 0.63226). Pursuant to section 1001(e), W's gain is $410,969, 
the amount realized. A has a basis of $410,969 which he can recover by 
amortization deductions over W's life expectancy.
    Example 3. Unimproved land having a fair market value of $18,800 at 
the date of the decedent's death on January 1, 1970, is devised to A, a 
male, for life, with remainder over to B, a female. The estate does not 
elect the alternate valuation allowed by section 2032. On January 1, 
1971, A sells his life interest to S for $12,500. S is not related to A 
or B. At the time of the sale, A is 39 years of age. By reference to 
Sec.  20.2031-7A(c), the life estate factor for age 39, male, is found 
to be 0.79854. Therefore, the present value of the portion of the 
uniform basis assigned to A's life interest is $15,012.55 ($18,800 x 
0.79854). This portion is disregarded under section 1001(e). A realizes 
no loss; his gain is $12,500, the amount realized. S has a basis of 
$12,500 which he can recover by amortization deductions over A's life 
expectancy.
    Example 4. The facts are the same as in example (3) except that on 
January 1, 1971, A and B jointly sell the entire property to S for 
$25,000 and divide the proceeds equally between them. A and B are not 
related, and there is no element of gift or compensation in the 
transaction. By reference to Sec.  20.2031-7A(c), the remainder factor 
for age 39, male, is found to be 0.20146. Therefore, the present value 
of the uniform basis assigned to B's remainder interest is $3,787.45 
($18,800 x 0.20146). On the sale A realizes a loss of $2,512.55 
($15,012.55 less $12,500), the portion of the uniform basis assigned to 
his life interest not being disregarded by reason of section 1001(e)(3). 
B's gain on the sale is $8,712.55 ($12,500 less $3,787.45). S has a 
basis in the entire property of $25,000, no part of which, however, can 
be recovered by amortization deductions over A's life expectancy.
    Example 5. (a) Nondepreciable property having a fair market value of 
$54,000 at the date of decedent's death on January 1, 1971, is devised 
to her husband, H, for life and, after his death, to her daughter, D, 
for life, with remainder over to her grandson, G. The estate does not 
elect the alternate valuation allowed by section 2032. On January 1, 
1973, H sells his life interest to D for $32,000. At the date of the 
sale, H is 62 years of age, and D is 45 years of age. By reference to 
Sec.  20.2031-7A(c), the life estate factor for age 62, male, is found 
to be 0.52321. Therefore, the present value on January 1, 1973, of the 
portion of the adjusted uniform basis assigned to H's life interest is 
$28,253 ($54,000 x 0.52321). Pursuant to section 1001(e), H realizes no 
loss; his gain is $32,000, the amount realized from the sale. D has a 
basis of $32,000 which she can recover by amortization deductions over 
H's life expectancy.
    (b) On January 1, 1976, D sells both life estates to G for $40,000. 
During each of the years 1973 through 1975, D is allowed a deduction for 
the amortization of H's life interest. At the date of the sale H is 65 
years of age, and D is 48 years of age. For purposes of determining gain 
or loss on the sale by D, the portion of the adjusted uniform basis 
assigned to H's life interest and the portion assigned to D's life 
interest are not taken into account under section 1001(e). However, 
pursuant to Sec.  1.1001-1(f)(1), D's cost basis in H's life interest, 
minus deductions for the amortization of such interest, is taken into 
account. On the sale, D realizes gain of $40,000 minus an amount which 
is equal to the $32,000 cost basis (for H's life estate) reduced by 
amortization deductions. G is entitled to amortize over H's life 
expectancy that part of the $40,000 cost which is attributable to H's 
life interest. That part of the $40,000 cost which is attributable to 
D's life interest is not amortizable by G until H dies.
    Example 6. Securities worth $1,000,000 at the date of decedent's 
death on January 1, 1971, are bequeathed to his wife, W, for life, with 
remainder over to his son, S. W is 48 years of age when the life 
interest is acquired. The estate does not elect the alternate valuation 
allowed by section 2032. By reference to Sec.  20.2031-7A(c), the life 
estate factor for age 48, female, is found to be 0.77488, and the 
remainder factor for such age is found to be 0.22512. Therefore, the 
present value of the portion of the uniform basis assigned to W's life 
interest is $774,880 ($1,000,000 x 0.77488), and the present value of 
the portion of the uniform basis assigned to S's remainder interest is 
$225,120 ($1,000,000 x 0.22512). On February 1, 1971, W transfers her 
life interest to corporation X in exchange for all of the stock of X 
pursuant to a transaction in which no gain or loss is recognized by 
reason of section 351. On February 1, 1972, W sells all of her stock in 
X to S for $800,000. Pursuant to section 1001(e) and Sec.  1.1001-
1(f)(2), W realizes no loss; her gain is $800,000, the amount realized 
from the sale. On February 1, 1972, X sells to N for $900,000 the life 
interest transferred to it by W. Pursuant to section 1001(e) and Sec.  
1.1001-1(f)(1), X realizes no loss; its gain is $900,000, the amount 
realized from the sale. N has a basis of $900,000 which he can recover 
by amortization deductions over W's life expectancy.
    Example 7. (a) Grantor creates a charitable remainder unitrust 
(CRUT) on Date 1 in which Grantor retains a unitrust interest and 
irrevocably transfers the remainder interest to Charity. Grantor is an 
individual taxpayer subject to income tax. CRUT meets the requirements 
of section 664 and is exempt from income tax.
    (b) Grantor's basis in the shares of X stock used to fund CRUT is 
$10x. On Date 2, CRUT sells the X stock for $100x. The $90x of gain is 
exempt from income tax under section

[[Page 65]]

664(c)(1). On Date 3, CRUT uses the $100x proceeds from its sale of the 
X stock to purchase Y stock. On Date 4, CRUT sells the Y stock for 
$110x. The $10x of gain on the sale of the Y stock is exempt from income 
tax under section 664(c)(1). On Date 5, CRUT uses the $110x proceeds 
from its sale of Y stock to buy Z stock. On Date 5, CRUT's basis in its 
assets is $110x and CRUT's total undistributed net capital gains are 
$100x.
    (c) Later, when the fair market value of CRUT's assets is $150x and 
CRUT has no undistributed net ordinary income, Grantor and Charity sell 
all of their interests in CRUT to a third person. Grantor receives $100x 
for the retained unitrust interest, and Charity receives $50x for its 
interest. Because the entire interest in CRUT is transferred to the 
third person, section 1001(e)(3) prevents section 1001(e)(1) from 
applying to the transaction. Therefore, Grantor's gain on the sale of 
the retained unitrust interest in CRUT is determined under section 
1001(a), which provides that Grantor's gain on the sale of that interest 
is the excess of the amount realized, $100x, over Grantor's adjusted 
basis in the interest.
    (d) Grantor's adjusted basis in the unitrust interest in CRUT is 
that portion of CRUT's adjusted uniform basis that is assignable to 
Grantor's interest under Sec.  1.1014-5, which is Grantor's actuarial 
share of the adjusted uniform basis. In this case, CRUT's adjusted 
uniform basis in its sole asset, the Z stock, is $110x. However, 
paragraph (c) of this section applies to the transaction. Therefore, 
Grantor's actuarial share of CRUT's adjusted uniform basis (determined 
by applying the factors set forth in the tables contained in Sec.  
20.2031-7 of this chapter) is reduced by an amount determined by 
applying the same factors to the sum of CRUT's $0 of undistributed net 
ordinary income and its $100x of undistributed net capital gains.
    (e) In determining Charity's share of the adjusted uniform basis, 
Charity applies the factors set forth in the tables contained in Sec.  
20.2031-7 of this chapter to the full $110x of basis.
    Example 8. (a) Grantor creates a charitable remainder annuity trust 
(CRAT) on Date 1 in which Grantor retains an annuity interest and 
irrevocably transfers the remainder interest to Charity. Grantor is an 
individual taxpayer subject to income tax. CRAT meets the requirements 
of section 664 and is exempt from income tax.
    (b) Grantor funds CRAT with shares of X stock having a basis of 
$50x. On Date 2, CRAT sells the X stock for $150x. The $100x of gain is 
exempt from income tax under section 664(c)(1). On Date 3, CRAT 
distributes $10x to Grantor, and uses the remaining $140x of net 
proceeds from its sale of the X stock to purchase Y stock. Grantor 
treats the $10x distribution as capital gain, so that CRAT's remaining 
undistributed net capital gains amount described in section 664(b)(2) 
and Sec.  1.664-1(d) is $90x.
    (c) On Date 4, when the fair market value of CRAT's assets, which 
consist entirely of the Y stock, is still $140x, Grantor and Charity 
sell all of their interests in CRAT to a third person. Grantor receives 
$126x for the retained annuity interest, and Charity receives $14x for 
its remainder interest. Because the entire interest in CRAT is 
transferred to the third person, section 1001(e)(3) prevents section 
1001(e)(1) from applying to the transaction. Therefore, Grantor's gain 
on the sale of the retained annuity interest in CRAT is determined under 
section 1001(a), which provides that Grantor's gain on the sale of that 
interest is the excess of the amount realized, $126x, over Grantor's 
adjusted basis in that interest.
    (d) Grantor's adjusted basis in the annuity interest in CRAT is that 
portion of CRAT's adjusted uniform basis that is assignable to Grantor's 
interest under Sec.  1.1014-5, which is Grantor's actuarial share of the 
adjusted uniform basis. In this case, CRAT's adjusted uniform basis in 
its sole asset, the Y stock, is $140x. However, paragraph (c) of this 
section applies to the transaction. Therefore, Grantor's actuarial share 
of CRAT's adjusted uniform basis (determined by applying the factors set 
forth in the tables contained in Sec.  20.2031-7 of this chapter) is 
reduced by an amount determined by applying the same factors to the sum 
of CRAT's $0 of undistributed net ordinary income and its $90x of 
undistributed net capital gains.
    (e) In determining Charity's share of the adjusted uniform basis, 
Charity applies the factors set forth in the tables contained in Sec.  
20.2031-7 of this chapter to determine its actuarial share of the full 
$140x of basis.

[T.D. 7142, 36 FR 18951, Sept. 24, 1971, as amended by T.D. 8540, 59 FR 
30102, June 10, 1994; T.D. 9729, 80 FR 48250, Aug. 12, 2015; T.D. 9811, 
82 FR 6241, Jan. 19, 2017]



Sec.  1.1014-6  Special rule for adjustments to basis where property 
is acquired from a decedent prior to his death.

    (a) In general. (1) The basis of property described in section 
1014(b)(9) which is acquired from a decedent prior to his death shall be 
adjusted for depreciation, obsolescence, amortization, and depletion 
allowed the taxpayer on such property for the period prior to the 
decedent's death. Thus, in general, the adjusted basis of such property 
will be its fair market value at the decedent's death, or the applicable 
alternate valuation date, less the amount allowed (determined with 
regard to section 1016(a)(2)(B)) to the taxpayer as deductions for 
exhaustion, wear and

[[Page 66]]

tear, obsolescence, amortization, and depletion for the period held by 
the taxpayer prior to the decedent's death. The deduction allowed for a 
taxable year in which the decedent dies shall be an amount properly 
allocable to that part of the year prior to his death. For a discussion 
of the basis adjustment required by section 1014(b)(9) where property is 
held in trust, see paragraph (c) of this section.
    (2) Where property coming within the purview of subparagraph (1) of 
this paragraph was held by the decedent and his surviving spouse as 
tenants by the entirety or as joint tenants with right of survivorship, 
and joint income tax returns were filed by the decedent and the 
surviving spouse in which the deductions referred to in subparagraph (1) 
were taken, there shall be allocated to the surviving spouse's interest 
in the property that proportion of the deductions allowed for each 
period for which the joint returns were filed which her income from the 
property bears to the total income from the property. Each spouse's 
income from the property shall be determined in accordance with local 
law.
    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. The taxpayer acquired income-producing property by gift 
on January 1, 1954. The property had a fair market value of $50,000 on 
the date of the donor's death, January 1, 1956, and was included in his 
gross estate at that amount for estate tax purposes as a transfer in 
contemplation of death. Depreciation in the amount of $750 per year was 
allowable for each of the taxable years 1954 and 1955. However, the 
taxpayer claimed depreciation in the amount of $500 for each of these 
years (resulting in a reduction in his taxes) and his income tax returns 
were accepted as filed. The adjusted basis of the property as of the 
date of the decedent's death is $49,000 ($50,000, the fair market value 
at the decedent's death, less $1,000, the total of the amounts actually 
allowed as deductions).
    Example 2. On July 1, 1952, H purchased for $30,000 income-producing 
property which he conveyed to himself and W, his wife, as tenants by the 
entirety. Under local law each spouse was entitled to one-half of the 
income therefrom. H died on January 1, 1955, at which time the fair 
market value of the property was $40,000. The entire value of the 
property was included in H's gross estate. H and W filed joint income 
tax returns for the years 1952, 1953, and 1954. The total depreciation 
allowance for the year 1952 was $500 and for each of the other years 
1953 and 1954 was $1,000. One-half of the $2,500 depreciation will be 
allocated to W. The adjusted basis of the property in W's hands of 
January 1, 1955, was $38,750 ($40,000, value on the date of H's death, 
less $1,250, depreciation allocated to W for periods before H's death). 
However, if, under local law, all of the income from the property was 
allocable to H, no adjustment under this paragraph would be required and 
W's basis for the property as of the date of H's death would be $40,000.

    (b) Multiple interests in property described in section 1014(b)(9) 
and acquired from a decedent prior to his death. (1) Where more than one 
person has an interest in property described in section 1014(b)(9) which 
was acquired from a decedent before his death, the basis of such 
property and of each of the several interests therein shall, in general, 
be determined and adjusted in accordance with the principles contained 
in Sec. Sec.  1.1014-4 and 1.1014-5, relating to the uniformity of basis 
rule. Application of these principles to the determination of basis 
under section 1014(b)(9) is shown in the remaining subparagraphs of this 
paragraph in connection with certain commonly encountered situations 
involving multiple interests in property acquired from a decedent before 
his death.
    (2) Where property is acquired from a decedent before his death, and 
the entire property is subsequently included in the decedent's gross 
estate for estate tax purposes, the uniform basis of the property, as 
well as the basis of each of the several interests in the property, 
shall be determined by taking into account the basis adjustments 
required by section 1014(a) owing to such inclusion of the entire 
property in the decedent's gross estate. For example, suppose that the 
decedent transfers property in trust, with a life estate to A, and the 
remainder to B or his estate. The transferred property consists of 100 
shares of the common stock of X Corporation, with a basis of $10,000 at 
the time of the transfer. At the time of the decedent's death the value 
of the stock is $20,000. The transfer is held to have been made in 
contemplation of death and the entire value of the trust is included in 
the decedent's gross estate. Under section 1014(a), the uniform basis

[[Page 67]]

of the property in the hands of the trustee, the life tenant, and the 
remainderman, is $20,000. If immediately prior to the decedent's death, 
A's share of the uniform basis of $10,000 was $6,000, and B's share was 
$4,000, then, immediately after the decedent's death, A's share of the 
uniform basis of $20,000 is $12,000, and B's share is $8,000.
    (3)(i) In cases where, due to the operation of the estate tax, only 
a portion of property acquired from a decedent before his death is 
included in the decedent's gross estate, as in cases where the decedent 
retained a reversion to take effect upon the expiration of a life estate 
in another, the uniform basis of the entire property shall be determined 
by taking into account any basis adjustments required by section 1014(a) 
owing to such inclusion of a portion of the property in the decedent's 
gross estate. In such cases the uniform basis is the adjusted basis of 
the entire property immediately prior to the decedent's death increased 
(or decreased) by an amount which bears the same relation to the total 
appreciation (or diminution) in value of the entire property (over the 
adjusted basis of the entire property immediately prior to the 
decedent's death) as the value of the property included in the 
decedent's gross estate bears to the value of the entire property. For 
example, assume that the decedent creates a trust to pay the income to A 
for life, remainder to B or his estate. The trust instrument further 
provides that if the decedent should survive A, the income shall be paid 
to the decedent for life. Assume that the decedent predeceases A, so 
that, due to the operation of the estate tax, only the present value of 
the remainder interest is included in the decedent's gross estate. The 
trust consists of 100 shares of the common stock of X Corporation with 
an adjusted basis immediately prior to the decedent's death of $10,000 
(as determined under section 1015). At the time of the decedent's death, 
the value of the stock is $20,000, and the value of the remainder 
interest in the hands of B is $8,000. The uniform basis of the entire 
property following the decedent's death is $14,000, computed as follows:

Uniform basis prior to decedent's death.......................   $10,000
                             plus
Increase in uniform basis (determined by the following             4,000
 formula).....................................................
[Increase in uniform basis (to be determined)/$10,000 (total
 appreciation)]=
[$8,000 (value of property included in gross estate)/$20,000
 (value of entire property)]
                                                               ---------
Uniform basis under section 1014(a)...........................    14,000
 

    (ii) In cases of the type described in subdivision (i) of this 
subparagraph, the basis of any interest which is included in the 
decedent's gross estate may be ascertained by adding to (or subtracting 
from) the basis of such interest determined immediately prior to the 
decedent's death the increase (or decrease) in the uniform basis of the 
property attributable to the inclusion of the interest in the decedent's 
gross estate. Where the interest is sold or otherwise disposed of at any 
time after the decedent's death, proper adjustment must be made in order 
to reflect the change in value of the interest on account of the passage 
of time, as provided in Sec.  1.1014-5. For an illustration of the 
operation of this subdivision, see step 6 of the example in Sec.  
1.1014-7.
    (iii) In cases of the type described in subdivision (i) of this 
subparagraph (cases where, due to the operation of the estate tax, only 
a portion of the property is included in the decedent's gross estate), 
the basis for computing the depreciation, amortization, or depletion 
allowance shall be the uniform basis of the property determined under 
section 1014(a). However, the manner of taking into account such 
allowance computed with respect to such uniform basis is subject to the 
following limitations:
    (a) In cases where the value of the life interest is not included in 
the decedent's gross estate, the amount of such allowance to the life 
tenant under section 167(h) (or section 611(b)) shall not exceed (or be 
less than) the amount which would have been allowable to the life tenant 
if no portion of the basis of the property was determined under section 
1014(a). Proper adjustment shall be made for the amount allowable to the 
life tenant, as required by section 1016. Thus, an appropriate 
adjustment shall be made to the uniform basis of the property in the 
hands of the trustee, to the basis of the life interest in the hands of 
the life tenant, and to the

[[Page 68]]

basis of the remainder in the hands of the remainderman.
    (b) Any remaining allowance (that is, the increase in the amount of 
depreciation, amortization, or depletion allowable resulting from any 
increase in the uniform basis of the property under section 1014(a)) 
shall not be allowed to the life tenant. The remaining allowance shall, 
instead, be allowed to the trustee to the extent that the trustee both 
(1) is required or permitted, by the governing trust instrument (or 
under local law), to maintain a reserve for depreciation, amortization, 
or depletion, and (2) actually maintains such a reserve. If, in 
accordance with the preceding sentence, the trustee does maintain such a 
reserve, the remaining allowance shall be taken into account, under 
section 1016, in adjusting the uniform basis of the property in the 
hands of the trustee and in adjusting the basis of the remainder 
interest in the hands of the remainderman, but shall not be taken into 
account, under section 1016, in determining the basis of the life 
interest in the hands of the life tenant. For an example of the 
operation of this subdivision, see paragraph (b) of Sec.  1.1014-7.
    (4) In cases where the basis of any interest in property is not 
determined under section 1014(a), as where such interest (i) is not 
included in the decedent's gross estate, or (ii) is sold, exchanged or 
otherwise disposed of before the decedent's death, the basis of such 
interest shall be determined under other applicable provisions of the 
Code. To illustrate, in the example shown in subparagraph (3)(i) of this 
paragraph the basis of the life estate in the hands of A shall be 
determined under section 1015, relating to the basis of property 
acquired by gift. If, on the other hand, A had sold his life interest 
prior to the decedent's death, the basis of the life estate in the hands 
of A's transferee would be determined under section 1012.
    (c) Adjustments for deductions allowed prior to the decedent's 
death. (1) As stated in paragraph (a) of this section, section 
1014(b)(9) requires a reduction in the uniform basis of property 
acquired from a decedent before his death for certain deductions allowed 
in respect of such property during the decedent's lifetime. In general, 
the amount of the reduction in basis required by section 1014(b)(9) 
shall be the aggregate of the deductions allowed in respect of the 
property, but shall not include deductions allowed in respect of the 
property to the decedent himself. In cases where, owing to the operation 
of the estate tax, only a part of the value of the entire property is 
included in the decedent's gross estate, the amount of the reduction 
required by section 1014(b)(9) shall be an amount which bears the same 
relation to the total of all deductions (described in paragraph (a) of 
this section) allowed in respect of the property as the value of the 
property included in the decedent's gross estate bears to the value of 
the entire property.
    (2) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. The decedent creates a trust to pay the income to A for 
life, remainder to B or his estate. The property transferred in trust 
consists of an apartment building with a basis of $50,000 at the time of 
the transfer. The decedent dies 2 years after the transfer is made and 
the gift is held to have been made in contemplation of death. 
Depreciation on the property was allowed in the amount of $1,000 
annually. At the time of the decedent's death the value of the property 
is $58,000. The uniform basis of the property in the hands of the 
trustee, the life tenant, and the remainderman, immediately after the 
decedent's death is $56,000 ($58,000, fair market value of the property 
immediately after the decedent's death, reduced by $2,000, deductions 
for depreciation allowed prior to the decedent's death).
    Example 2. The decedent creates a trust to pay the income to A for 
life, remainder to B or his estate. The trust instrument provides that 
if the decedent should survive A, the income shall be paid to the 
decedent for life. The decedent predeceases A and the present value of 
the remainder interest is included in the decedent's gross estate for 
estate tax purposes. The property transferred consists of an apartment 
building with a basis of $110,000 at the time of the transfer. Following 
the creation of the trust and during the balance of the decedent's life, 
deductions for depreciation were allowed on the property in the amount 
of $10,000. At the time of decedent's death the value of the entire 
property is $150,000, and the value of the remainder interest is 
$100,000. Accordingly, the uniform basis of the property in the hands of

[[Page 69]]

the trustee, the life tenant, and the remainderman, as adjusted under 
section 1014(b)(9), is $126,666, computed as follows:

Uniform basis prior to decedent's death......................   $100,000
                             plus
Increase in uniform basis--before reduction (determined by        33,333
 the following formula)......................................
[Increase in uniform basis (to be determined)/$50,000 (total
 appreciation of property since time of transfer)]=
[$100,000 (value of property included in gross estate)/
 $150,000 (value of entire property)]
                                                              ----------
                             less                                133,333
Deductions allowed prior to decedent's death--taken into           6,667
 account under section 1014(b)(9) (determined by the
 following formula)..........................................
[Prior deductions taken into account (to be determined)
 $10,000 (total deductions allowed prior to decedent's
 death)]=
[$100,000 (value of property included in gross estate)
 $150,000 (value of entire property)]
                                                              ----------
Uniform basis under section 1014.............................    126,666
 


[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6712, 29 FR 
3656, Mar. 24, 1964; T.D. 7142, 36 FR 18952, Sept. 24, 1971]



Sec.  1.1014-7  Example applying rules of Sec. Sec.  1.1014-4 
through 1.1014-6 to case involving multiple interests.

    (a) On January 1, 1950, the decedent creates a trust to pay the 
income to A for life, remainder to B or his estate. The trust instrument 
provides that if the decedent should survive A, the income shall be paid 
to the decedent for life. The decedent, who died on January 1, 1955, 
predeceases A, so that, due to the operation of the estate tax, only the 
present value of the remainder interest is included in the decedent's 
gross estate. The trust consists of an apartment building with a basis 
of $30,000 at the time of transfer. Under the trust instrument the 
trustee is required to maintain a reserve for depreciation. During the 
decedent's lifetime depreciation is allowed in the amount of $800 
annually. At the time of the decedent's death the value of the apartment 
building is $45,000. A, the life tenant, is 43 years of age at the time 
of the decedent's death. Immediately after the decedent's death, the 
uniform basis of the entire property under section 1014(a) is $32,027; 
A's basis for the life interest is $15,553; and B's basis for the 
remainder interest is $16,474, computed as follows:

Step 1. Uniform basis (adjusted) immediately prior to
 decedent's death:
  Basis at time of transfer...................................   $30,000
                             less
  Depreciation allowed under section 1016 before decedent's        4,000
   death ($800 x 5)...........................................
                                                     -----------
                                                                  26,000
Step 2. Value of property included in decedent's gross estate:
  0.40180 (remainder factor, age 43) x $45,000 (value of         $18,081
   entire property)...........................................
Step 3. Uniform basis of property under section 1014(a),
 before reduction required by section 1014(b)(9):
  Uniform basis (adjusted) prior to decedent's death..........    26,000
  Increase in uniform basis (determined by the following           7,634
   formula)...................................................
Increase in uniform basis (to be determined) $19,000 (total
 appreciation, $45,000-$26,000)]=
$18,081 (value of property included in gross estate) $45,000
 (value of entire property)]
                                                     -----------
                                                                  33,634
Step 4. Uniform basis reduced as required by section
 1014(b)(9) for deductions allowed prior to death:
  Uniform basis before reduction..............................   $33,634
                             less
  Deductions allowed prior to decedent's death--taken into         1,607
   account under section 1014(b)(9) (determined by the
   following formula).........................................
Prior deductions taken into account (to be determined) $4,000
 (total deductions allowed prior to decedent's death)]=
$18,081 (value of property included in gross estate) $45,000
 (value of entire property)
                                                     -----------
                                                                  32,027
Step 5. A's basis for the life interest at the time of the        15,553
 decedent's death, determined under section 1015: 0.59820
 (life factor, age 43) x $26,000
Step 6. B's basis for the remainder interest, determined under
 section 1014(a): Basis prior to the decedent's death:
  0.40180 (remainder factor, age 43) x $26,000................    10,447
                             plus
  Increase in uniform basis owing to decedent's death:
    Increase in uniform basis.......................    $7,634
                        plus
    Reduction required by section 1014(b)(9)........     1,607
                                                     ----------
                                                      ........     6,027
                                                               ---------
                                                      ........    16,474
 

    (b) Assume the same facts as in paragraph (a) of this section. 
Assume further, that following the decedent's death depreciation is 
allowed in the amount of $1,000 annually. As of January 1, 1964, when 
A's age is 52, the adjusted uniform basis of the entire property is 
$23,027; A's basis for the life interest is $9,323; and B's basis for 
the remainder interest is $13,704, computed as follows:

Step 7. Uniform basis (adjusted) as of January 1, 1964:
  Uniform basis determined under section 1014(a), reduced as     $32,027
   required by section 1014(b)(9).............................

[[Page 70]]

 
                             less
  Depreciation allowed since decedent's death ($1,000 x 9)....     9,000
                                                               ---------
                                                                  23,027
Step 8. Allocable share of adjustment for depreciation
 allowable in the nine years since the decedent's death:
                         A's interest
  0.49587 (life factor, age 52) x $7,200 ($800, depreciation       3,570
   attributable to uniform basis before increase under section
   1014(a), x 9)..............................................
                         B's interest
  0.50413 (remainder factor, age 52) x $7,200 ($800,               3,630
   depreciation attributable to uniform basis before increase
   under section 1014(a), x 9)................................
                             plus
  $200 (annual depreciation attributable to increase in            1,800
   uniform basis under section 1014(a)) x 9...................
                                                               ---------
                                                                   5,430
Step 9. Tentative bases of A's and B's interests as of January
 1, 1964 (before adjustment for depreciation).
                         A's interest
  0.49587 (life factor, age 52) x $26,000 (adjusted uniform       12,893
   basis immediately before decedent's death).................
                         B's interest
  0.50413 (remainder factor, age 52) x $26,000 (adjusted          13,107
   uniform basis immediately before decedent's death).........
                             plus
  Increase in uniform basis owing to inclusion of remainder in     6,027
   decedent's gross estate....................................
                                                               ---------
                                                                  19,134
Step 10. Bases of A's and B's interests as of January 1, 1964.
                               A
  Tentative basis (Step 9)....................................    12,893
                             less
  Allocable depreciation (Step 8).............................     3,570
                                                               ---------
                                                                   9,323
                               B
  Tentative basis (Step 9)....................................    19,134
                             less
  Allocable depreciation (Step 8).............................     5,430
                                                               ---------
                                                                  13,704
 



Sec.  1.1014-8  Bequest, devise, or inheritance of a remainder interest.

    (a)(1) Where property is transferred for life, with remainder in 
fee, and the remainderman dies before the life tenant, no adjustment is 
made to the uniform basis of the property on the death of the 
remainderman (see paragraph (a) of Sec.  1.1014-4). However, the basis 
of the remainderman's heir, legatee, or devisee for the remainder 
interest is determined by adding to (or subtracting from) the part of 
the adjusted uniform basis assigned to the remainder interest 
(determined in accordance with the principles set forth in Sec. Sec.  
1.1014-4 through 1.1014-6) the difference between--
    (i) The value of the remainder interest included in the 
remainderman's estate, and
    (ii) The basis of the remainder interest immediately prior to the 
remainderman's death.
    (2) The basis of any property distributed to the heir, legatee, or 
devisee upon termination of a trust (or legal life estate) or at any 
other time (unless included in the gross income of the legatee or 
devisee) shall be determined by adding to (or subtracting from) the 
adjusted uniform basis of the property thus distributed the difference 
between--
    (i) The value of the remainder interest in the property included in 
the remainderman's estate, and
    (ii) The basis of the remainder interest in the property immediately 
prior to the remainderman's death.
    (b) The provisions of paragraph (a) of this section are illustrated 
by the following examples:

    Example 1. Assume that, under the will of a decedent, property 
consisting of common stock with a value of $1,000 at the time of the 
decedent's death is transferred in trust, to pay the income to A for 
life, remainder to B or to B's estate. B predeceases A and bequeaths the 
remainder interest to C. Assume that B dies on January 1, 1956, and that 
the value of the stock originally transferred is $1,600 at B's death. 
A's age at that time is 37. The value of the remainder interest included 
in B's estate is $547 (0.34185, remainder factor age 37, x $1,600), and 
hence $547 is C's basis for the remainder interest immediately after B's 
death. Assume that C sells the remainder interest on January 1, 1961, 
when A's age is 42. C's basis for the remainder interest at the time of 
such sale is $596, computed as follows:

Basis of remainder interest computed with respect to uniform        $391
 basis of entire property (0.39131, remainder factor age 42, x
 $1,000, uniform basis of entire property)....................
                        plus
Value of remainder interest included in B's estate..      $547
                        less
Basis of remainder interest immediately prior to B's       342
 death (0.34185, remainder factor age 37, x $1,000).
                                                           ___       205
                                                               ---------
Basis of C's remainder interest at the time of sale...........       596
 


[[Page 71]]

    Example 2. Assume the same facts as in example (1), except that C 
does not sell the remainder interest. Upon A's death terminating the 
trust, C's basis for the stock distributed to him is computed as 
follows:

Uniform basis of the property, adjusted to date of termination    $1,000
 of the trust.................................................
                        plus
Value of remainder interests in the property at the       $547
 time of B's death..................................
                        less
B's share of uniform basis of the property at the          342
 time of his death..................................
                                                           ___       205
                                                               ---------
C's basis for the stock distributed to him upon the                1,205
 termination of the trust.....................................
 

    Example 3. Assume the same facts as in example (2), except that the 
property transferred is depreciable. Assume further that $100 of 
depreciation was allowed prior to B's death and that $50 of depreciation 
is allowed between the time of B's death and the termination of the 
trust. Upon A's death terminating the trust, C's basis for the property 
distributed to him is computed as follows:

Uniform basis of the property, adjusted to date of
 termination of the trust:
  Uniform basis immediately after decedent's death..    $1,000
  Depreciation allowed following decedent's death...       150
                                                     ----------
                                                      ........      $350
                        plus
Value of remainder interest in the property at the         547
 time of B's death..................................
                        less
B's share of uniform basis of the property at the          308
 time of his death (0.34185 x $900, uniform basis at
 B's death).........................................
                                                     ----------
                                                           ___       239
                                                               ---------
C's basis for the property distributed to him upon the             1,089
 termination of the trust.....................................
 

    (c) The rules stated in paragraph (a) of this section do not apply 
where the basis of the remainder interest in the hands of the 
remainderman's transferee is determined by reference to its cost to such 
transferee. See also paragraph (a) of Sec.  1.1014-4. Thus, if, in 
example (1) of paragraph (b) of this section B sold his remainder 
interest to C for $547 in cash, C's basis for the stock distributed to 
him upon the death of A terminating the trust is $547.



Sec.  1.1014-9  Special rule with respect to DISC stock.

    (a) In general. If property consisting of stock of a DISC or former 
DISC (as defined in section 992(a) (1) or (3) as the case may be) is 
considered to have been acquired from a decedent (within the meaning of 
paragraph (a) or (b) of Sec.  1.1014-2), the uniform basis of such stock 
under section 1014, as determined pursuant to Sec. Sec.  1.1014-1 
through 1.1014-8 shall be reduced as provided in this section. Such 
uniform basis shall be reduced by the amount (hereinafter referred to in 
this section as the amount of reduction), if any, which the decedent 
would have included in his gross income under section 995(c) as a 
dividend if the decedent had lived and sold such stock at its fair 
market value on the estate tax valuation date. If the alternate 
valuation date for Federal estate tax purposes is elected under section 
2032, in computing the gain which the decedent would have had if he had 
lived and sold the stock on the alternate valuation date, the decedent's 
basis shall be determined with reduction for any distributions with 
respect to the stock which may have been made, after the date of the 
decedent's death and on or before the alternate valuation date, from the 
DISC's previously taxed income (as defined in section 996(f)(2)). For 
this purpose, the last sentence of section 996(e)(2) (relating to 
reductions of basis of DISC stock) shall not apply. For purposes of this 
section, if the corporation is not a DISC or former DISC at the date of 
the decedent's death but is a DISC for a taxable year which begins after 
such date and on or before the alternate valuation date, the corporation 
will be considered to be a DISC or former DISC only if the alternate 
valuation date is elected. The provisions of this paragraph apply with 
respect to stock of a DISC or former DISC which is included in the gross 
estate of the decedent, including but not limited to property which--
    (1) Is acquired from the decedent before his death, and the entire 
property is subsequently included in the decedent's gross estate for 
estate tax purposes, or
    (2) Is acquired property described in paragraph (d) of Sec.  1.1014-
3.
    (b) Portion of property acquired from decedent before his death 
included in decedent's gross estate--(1) In general. In cases where, due 
to the operation of the estate tax, only a portion of property which 
consists of stock of a DISC or former DISC and which is acquired from a 
decedent before his death is included in the decedent's gross estate,

[[Page 72]]

the uniform basis of such stock under section 1014, as determined 
pursuant to Sec. Sec.  1.1014-1 through 1.1014-8, shall be reduced by an 
amount which bears the same ratio to the amount of reduction which would 
have been determined under paragraph (a) of this section if the entire 
property consisting of such stock were included in the decedent's gross 
estate as the value of such property included in the decedent's gross 
estate bears to the value of the entire property.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example: The decedent creates a trust during his lifetime to pay the 
income to A for life, remainder to B or his estate. The trust instrument 
further provides that if the decedent shall survive A, the income shall 
be paid to the decedent for life. The decedent predeceases A, so that, 
due to the operation of the estate tax, only the present value of the 
remainder interest is included in the decedent's gross estate. The trust 
consists of 100 shares of the stock of X corporation (which is a DISC at 
the time the shares are transferred to the trust and at the time of the 
decedent's death) with an adjusted basis immediately prior to the 
decedent's death of $10,000 (as determined under section 1015). At the 
time of the decedent's death the value of the stock is $20,000, and the 
value of the remainder interest in the hands of B is $8,000. Applying 
the principles of paragraph (b)(3)(i) of Sec.  1.1014-6, the uniform 
basis of the entire property following the decedent's death, prior to 
reduction pursuant to this paragraph, is $14,000. The amount of 
reduction which would have been determined under paragraph (a) of this 
section if the entire property consisting of such stock of X corporation 
were included in the decedent's gross estate is $5,000. The uniform 
basis of the entire property following the decedent's death, as reduced 
pursuant to this paragraph, is $12,000, computed as follows:

Uniform basis under section 1014(a), prior to                    $14,000
 reduction pursuant to this paragraph..............
Less decrease in uniform basis (determined by the                  2,000
 following formula)................................
                                                    --------------------
[Reduction in uniform basis (to be determined)/
 $5,000 (amount of reduction if paragraph (a)
 applied)] =
[$8,000 (value of property included in gross estate/
 $20,000 (value of entire property)]
Uniform basis under section 1014(a) reduced                       12,000
 pursuant to this paragraph........................
 

    (c) Estate tax valuation date. For purposes of section 1014(d) and 
this section, the estate tax valuation date is the date of the 
decedent's death or, in the case of an election under section 2032, the 
applicable valuation date prescribed by that section.
    (d) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. At the date of A's death, his DISC stock has a fair 
market value of $100. The estate does not elect the alternate valuation 
allowed by section 2032, and A's basis in such stock is $60 at the date 
of his death. The person who acquires such stock from the decedent will 
take as a basis for such stock its fair market value at A's death 
($100), reduced by the amount which would have been included in A's 
gross income under section 995(c) as a dividend if A had sold stock on 
the date he died. Thus, if the amount that would have been treated as a 
dividend under section 995(c) were $30, such person will take a basis of 
$70 for such stock ($100, reduced by $30). If such person were 
immediately to sell the DISC stock so received for $100, $30 of the 
proceeds from the sale would be treated as a dividend by such person 
under section 995(c).
    Example 2. Assume the same facts as in example (1) except that the 
estate elects the alternate valuation allowed by section 2032, the DISC 
stock has a fair market value of $140 on the alternate valuation date, 
the amount that would have been treated as a dividend under section 
995(c) in the event of a sale on such date is $50 and the DISC has $20 
of previously taxed income which accrued after the date of the 
decedent's death and before the alternate valuation date. The basis of 
the person who acquires such stock will be $90 determined as follows:

(1) Fair market value of DISC stock at alternate                    $140
 valuation date.......................................
(2) Less: Amount which would have been treated as a                   50
 dividend under section 995(c)........................
                                                       -----------------
(3) Basis of person who acquires DISC stock...........                90
 

    If a distribution of $20 attributable to such previously taxed 
income had been made by the DISC on or before the alternate valuation 
date (with the DISC stock having a fair market value of $120 after such 
distribution), the basis of the person who acquires such stock will be 
$70 determined as follows:

(1) Fair market value of DISC stock at alternate                    $120
 valuation date.......................................
(2) Less: Amount which would have been treated as a                   50
 dividend under section 995(c)........................
                                                       -----------------
(3) Basis of person who acquires DISC stock...........                70
 


[T.D. 7283, 38 FR 20825, Aug. 3, 1973]

[[Page 73]]



Sec.  1.1015-1  Basis of property acquired by gift after December 31, 1920.

    (a) General rule. (1) In the case of property acquired by gift after 
December 31, 1920 (whether by a transfer in trust or otherwise), the 
basis of the property for the purpose of determining gain is the same as 
it would be in the hands of the donor or the last preceding owner by 
whom it was not acquired by gift. The same rule applies in determining 
loss unless the basis (adjusted for the period prior to the date of gift 
in accordance with sections 1016 and 1017) is greater than the fair 
market value of the property at the time of the gift. In such case, the 
basis for determining loss is the fair market value at the time of the 
gift.
    (2) The provisions of subparagraph (1) of this paragraph may be 
illustrated by the following example.

    Example: A acquires by gift income-producing property which has an 
adjusted basis of $100,000 at the date of gift. The fair market value of 
the property at the date of gift is $90,000. A later sells the property 
for $95,000. In such case there is neither gain nor loss. The basis for 
determining loss is $90,000; therefore, there is no loss. Furthermore, 
there is no gain, since the basis for determining gain is $100,000.

    (3) If the facts necessary to determine the basis of property in the 
hands of the donor or the last preceding owner by whom it was not 
acquired by gift are unknown to the donee, the district director shall, 
if possible, obtain such facts from such donor or last preceding owner, 
or any other person cognizant thereof. If the district director finds it 
impossible to obtain such facts, the basis in the hands of such donor or 
last preceding owner shall be the fair market value of such property as 
found by the district director as of the date or approximate date at 
which, according to the best information the district director is able 
to obtain, such property was acquired by such donor or last preceding 
owner. See paragraph (e) of this section for rules relating to fair 
market value.
    (b) Uniform basis; proportionate parts of. Property acquired by gift 
has a single or uniform basis although more than one person may acquire 
an interest in such property. The uniform basis of the property remains 
fixed subject to proper adjustment for items under sections 1016 and 
1017. However, the value of the proportionate parts of the uniform basis 
represented, for instance, by the respective interests of the life 
tenant and remainderman are adjustable to reflect the change in the 
relative values of such interest on account of the lapse of time. The 
portion of the basis attributable to an interest at the time of its sale 
or other disposition shall be determined under the rules provided in 
Sec.  1.1014-5. In determining gain or loss from the sale or other 
disposition after October 9, 1969, of a term interest in property (as 
defined in Sec.  1.1001-1(f)(2)) the adjusted basis of which is 
determined pursuant, or by reference, to section 1015, that part of the 
adjusted uniform basis assignable under the rules of Sec.  1.1014-5(a) 
to the interest sold or otherwise disposed of shall be disregarded to 
the extent and in the manner provided by section 1001(e) and Sec.  
1.1001-1(f).
    (c) Time of acquisition. The date that the donee acquires an 
interest in property by gift is when the donor relinquishes dominion 
over the property and not necessarily when title to the property is 
acquired by the donee. Thus, the date that the donee acquires an 
interest in property by gift where he is a successor in interest, such 
as in the case of a remainderman of a life estate or a beneficiary of 
the distribution of the corpus of a trust, is the date such interests 
are created by the donor and not the date the property is actually 
acquired.
    (d) Property acquired by gift from a decedent dying after December 
31, 1953. If an interest in property was acquired by the taxpayer by 
gift from a donor dying after December 31, 1953, under conditions which 
required the inclusion of the property in the donor's gross estate for 
estate tax purposes, and the property had not been sold, exchanged, or 
otherwise disposed of by the taxpayer before the donor's death, see the 
rules prescribed in section 1014 and the regulations thereunder.
    (e) Fair market value. For the purposes of this section, the value 
of property as appraised for the purpose of the Federal gift tax, or, if 
the gift is not subject to such tax, its value as appraised for the 
purpose of a State gift

[[Page 74]]

tax, shall be deemed to be the fair market value of the property at the 
time of the gift.
    (f) Reinvestments by fiduciary. If the property is an investment by 
the fiduciary under the terms of the gift (as, for example, in the case 
of a sale by the fiduciary of property transferred under the terms of 
the gift, and the reinvestment of the proceeds), the cost or other basis 
to the fiduciary is taken in lieu of the basis specified in paragraph 
(a) of this section.
    (g) Records. To insure a fair and adequate determination of the 
proper basis under section 1015, persons making or receiving gifts of 
property should preserve and keep accessible a record of the facts 
necessary to determine the cost of the property and, if pertinent, its 
fair market value as of March 1, 1913, or its fair market value as of 
the date of the gift.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6693, 28 FR 
12818, Dec. 3, 1963; T.D. 7142, 36 FR 18952, Sept. 24, 1971]



Sec.  1.1015-2  Transfer of property in trust after December 31, 1920.

    (a) General rule. (1) In the case of property acquired after 
December 31, 1920, by transfer in trust (other than by a transfer in 
trust by a gift, bequest, or devise) the basis of property so acquired 
is the same as it would be in the hands of the grantor increased in the 
amount of gain or decreased in the amount of loss recognized to the 
grantor upon such transfer under the law applicable to the year in which 
the transfer was made. If the taxpayer acquired the property by a 
transfer in trust, this basis applies whether the property be in the 
hands of the trustee, or the beneficiary, and whether acquired prior to 
the termination of the trust and distribution of the property, or 
thereafter.
    (2) The principles stated in paragraph (b) of Sec.  1.1015-1 
concerning the uniform basis are applicable in determining the basis of 
property where more than one person acquires an interest in property by 
transfer in trust after December 31, 1920.
    (b) Reinvestment by fiduciary. If the property is an investment made 
by the fiduciary (as, for example, in the case of a sale by the 
fiduciary of property transferred by the grantor, and the reinvestment 
of the proceeds), the cost or other basis to the fiduciary is taken in 
lieu of the basis specified in paragraph (a) of this section.



Sec.  1.1015-3  Gift or transfer in trust before January 1, 1921.

    (a) In the case of property acquired by gift or transfer in trust 
before January 1, 1921, the basis of such property is the fair market 
value thereof at the time of the gift or at the time of the transfer in 
trust.
    (b) The principles stated in paragraph (b) of Sec.  1.1015-1 
concerning the uniform basis are applicable in determining the basis of 
property where more than one person acquires an interest in property by 
gift or transfer in trust before January 1, 1921. In addition, if an 
interest in such property was acquired from a decedent and the property 
had not been sold, exchanged, or otherwise disposed of before the death 
of the donor, the rules prescribed in section 1014 and the regulations 
thereunder are applicable in determining the basis of such property in 
the hands of the taxpayer.



Sec.  1.1015-4  Transfers in part a gift and in part a sale.

    (a) General rule. Where a transfer of property is in part a sale and 
in part a gift, the unadjusted basis of the property in the hands of the 
transferee is the sum of--
    (1) Whichever of the following is the greater:
    (i) The amount paid by the transferee for the property, or
    (ii) The transferor's adjusted basis for the property at the time of 
the transfer, and
    (2) The amount of increase, if any, in basis authorized by section 
1015(d) for gift tax paid (see Sec.  1.1015-5).

For determining loss, the unadjusted basis of the property in the hands 
of the transferee shall not be greater than the fair market value of the 
property at the time of such transfer. For determination of gain or loss 
of the transferor, see Sec.  1.1001-1(e) and Sec.  1.1011-2. For special 
rule where there has been a charitable contribution of less than a 
taxpayer's entire interest in property, see section 170(e)(2) and Sec.  
1.170A-4(c).

[[Page 75]]

    (b) Examples. The rule of paragraph (a) of this section is 
illustrated by the following examples:

    Example 1. If A transfers property to his son for $30,000, and such 
property at the time of the transfer has an adjusted basis of $30,000 in 
A's hands (and a fair market value of $60,000), the unadjusted basis of 
the property in the hands of the son is $30,000.
    Example 2. If A transfers property to his son for $60,000, and such 
property at the time of transfer has an adjusted basis of $30,000 in A's 
hands (and a fair market value of $90,000), the unadjusted basis of such 
property in the hands of the son is $60,000.
    Example 3. If A transfers property to his son for $30,000, and such 
property at the time of transfer has an adjusted basis in A's hands of 
$60,000 (and a fair market value of $90,000), the unadjusted basis of 
such property in the hands of the son is $60,000.
    Example 4. If A transfers property to his son for $30,000 and such 
property at the time of transfer has an adjusted basis of $90,000 in A's 
hands (and a fair market value of $60,000), the unadjusted basis of the 
property in the hands of the son ins $90,000. However, since the 
adjusted basis of the property in A's hands at the time of the transfer 
was greater than the fair market value at that time, for the purpose of 
determining any loss on a later sale or other disposition of the 
property by the son its unadjusted basis in his hands is $60,000.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6693, 28 FR 
12818, Dec. 3, 1963; T.D. 7207, 37 FR 20799, Oct. 5, 1972]



Sec.  1.1015-5  Increased basis for gift tax paid.

    (a) General rule in the case of gifts made on or before December 31, 
1976. (1)(i) Subject to the conditions and limitations provided in 
section 1015(d), as added by the Technical Amendments Act of 1958, the 
basis (as determined under section 1015(a) and paragraph (a) of Sec.  
1.1015-1) of property acquired by gift is increased by the amount of 
gift tax paid with respect to the gift of such property. Under section 
1015(d)(1)(A), such increase in basis applies to property acquired by 
gift on or after September 2, 1958 (the date of enactment of the 
Technical Amendments Act of 1958). Under section 1015(d)(1)(B), such 
increase in basis applies to property acquired by gift before September 
2, 1958, and not sold, exchanged, or otherwise disposed of before such 
date. If section 1015(d)(1)(A) applies, the basis of the property is 
increased as of the date of the gift regardless of the date of payment 
of the gift tax. For example, if the property was acquired by gift on 
September 8, 1958, and sold by the donee on October 15, 1958, the basis 
of the property would be increased (subject to the limitation of section 
1015(d)) as of September 8, 1958 (the date of the gift), by the amount 
of gift tax applicable to such gift even though such tax was not paid 
until March 1, 1959. If section 1015(d)(1)(B) applies, any increase in 
the basis of the property due to gift tax paid (regardless of date of 
payment) with respect to the gift is made as of September 2, 1958. Any 
increase in basis under section 1015(d) can be no greater than the 
amount by which the fair market value of the property at the time of the 
gift exceeds the basis of such property in the hands of the donor at the 
time of the gift. See paragraph (b) of this section for rules for 
determining the amount of gift tax paid in respect of property 
transferred by gift.
    (ii) With respect to property acquired by gift before September 2, 
1958, the provisions of section 1015(d) and this section do not apply 
if, before such date, the donee has sold, exchanged, or otherwise 
disposed of such property. The phrase sold, exchanged, or otherwise 
disposed of includes the surrender of a stock certificate for corporate 
assets in complete or partial liquidation of a corporation pursuant to 
section 331. It also includes the exchange of property for property of a 
like kind such as the exchange of one apartment house for another. The 
phrase does not, however, extend to transactions which are mere changes 
in form. Thus, it does not include a transfer of assets to a corporation 
in exchange for its stock in a transaction with respect to which no gain 
or loss would be recognizable for income tax purposes under section 351. 
Nor does it include an exchange of stock or securities in a corporation 
for stock or securities in the same corporation or another corporation 
in a transaction such as a merger, recapitalization, reorganization, or 
other transaction described in section 368(a) or 355, with respect to 
which no gain or loss is recognizable for income tax purposes under 
section 354 or 355. If a binding contract for the sale, exchange, or 
other disposition of property is entered

[[Page 76]]

into, the property is considered as sold, exchanged, or otherwise 
disposed of on the effective date of the contract, unless the contract 
is not subsequently carried out substantially in accordance with its 
terms. The effective date of a contract is normally the date it is 
entered into (and not the date it is consummated, or the date legal 
title to the property passes) unless the contract specifies a different 
effective date. For purposes of this subdivision, in determining whether 
a transaction comes within the phrase sold, exchanged, or otherwise 
disposed of, if a transaction would be treated as a mere change in the 
form of the property if it occurred in a taxable year subject to the 
Internal Revenue Code of 1954, it will be so treated if the transaction 
occurred in a taxable year subject to the Internal Revenue Code of 1939 
or prior revenue law.
    (2) Application of the provisions of subparagraph (1) of this 
paragraph may be illustrated by the following examples:

    Example 1. In 1938, A purchased a business building at a cost of 
$120,000. On September 2, 1958, at which time the property had an 
adjusted basis in A's hands of $60,000, he gave the property to his 
nephew, B. At the time of the gift to B, the property had a fair market 
value of $65,000 with respect to which A paid a gift tax in the amount 
of $7,545. The basis of the property in B's hands at the time of the 
gift, as determined under section 1015(a) and Sec.  1.1015-1, would be 
the same as the adjusted basis in A's hands at the time of the gift, or 
$60,000. Under section 1015(d) and this section, the basis of the 
building in B's hands as of the date of the gift would be increased by 
the amount of the gift tax paid with respect to such gift, limited to an 
amount by which the fair market value of the property at the time of the 
gift exceeded the basis of the property in the hands of A at the time of 
gift, or $5,000. Therefore, the basis of the property in B's hands 
immediately after the gift, both for determining gain or loss on the 
sale of the property, would be $65,000.
    Example 2. C purchased property in 1938 at a cost of $100,000. On 
October 1, 1952, at which time the property had an adjusted basis of 
$72,000 in C's hands, he gave the property to his daughter, D. At the 
date of the gift to D, the property had a fair market value of $85,000 
with respect to which C paid a gift tax in the amount of $11,745. On 
September 2, 1958, D still held the property which then had an adjusted 
basis in her hands of $65,000. Since the excess of the fair market value 
of the property at the time of the gift to D over the adjusted basis of 
the property in C's hands at such time is greater than the amount of 
gift tax paid, the basis of the property in D's hands would be increased 
as of September 2, 1958, by the amount of the gift tax paid, or $11,745. 
The adjusted basis of the property in D's hands, both for determining 
gain or loss on the sale of the property, would then be $76,745 ($65,000 
plus $11,745).
    Example 3. On December 31, 1951, E gave to his son, F, 500 shares of 
common stock of the X Corporation which shares had been purchased 
earlier by E at a cost of $100 per share, or a total cost of $50,000. 
The basis in E's hands was still $50,000 on the date of the gift to F. 
On the date of the gift, the fair market value of the 500 shares was 
$80,000 with respect to which E paid a gift tax in the amount of 
$10,695. In 1956, the 500 shares of X Corporation stock were exchanged 
for 500 shares of common stock of the Y Corporation in a reorganization 
with respect to which no gain or loss was recognized for income tax 
purposes under section 354. F still held the 500 shares of Y Corporation 
stock on September 2, 1958. Under such circumstances, the 500 shares of 
X Corporation stock would not, for purposes of section 1015(d) and this 
section, be considered as having been sold, exchanged, or otherwise 
disposed of by F before September 2, 1958. Therefore, the basis of the 
500 shares of Y Corporation stock held by F as of such date would, by 
reason of section 1015(d) and this section, be increased by $10,695, the 
amount of gift tax paid with respect to the gift to F of the X 
Corporation stock.
    Example 4. On November 15, 1953, G gave H property which had a fair 
market value of $53,000 and a basis in the hands of G of $20,000. G paid 
gift tax of $5,250 on the transfer. On November 16, 1956, H gave the 
property to J who still held it on September 2, 1958. The value of the 
property on the date of the gift to J was $63,000 and H paid gift tax of 
$7,125 on the transfer. Since the property was not sold, exchanged, or 
otherwise disposed of by J before September 2, 1958, and the gift tax 
paid on the transfer to J did not exceed $43,000 ($63,000, fair market 
value of property at time of gift to J, less $20,000, basis of property 
in H's hands at that time), the basis of property in his hands is 
increased on September 2, 1958, by $7,125, the amount of gift tax paid 
by H on the transfer. No increase in basis is allowed for the $5,250 
gift tax paid by G on the transfer to H, since H had sold, exchanged, or 
otherwise disposed of the property before September 2, 1958.

    (b) Amount of gift tax paid with respect to gifts made on or before 
December 31, 1976. (1)(i) If only one gift was made during a certain 
calendar period (as defined in Sec.  25.2502-1(c)(1)), the entire

[[Page 77]]

amount of the gift tax paid under chapter 12 or the corresponding 
provisions of prior revenue laws for that calendar period is the amount 
of the gift tax paid with respect to the gift.
    (ii) If more than one gift was made during a certain calendar 
period, the amount of the gift tax paid under chapter 12 or the 
corresponding provisions of prior revenue laws with respect to any 
specified gift made during that calendar period is an amount, A, which 
bears the same ratio to B (the total gift tax paid for that calendar 
period) as C (the amount of the gift, computed as described in this 
paragraph (b)(1)(ii)) bears to D (the total taxable gifts for the 
calendar period computed without deduction for the gift tax specific 
exemption under section 2521 (as in effect prior to its repeal by the 
Tax Reform Act of 1976) or the corresponding provisions of prior revenue 
laws). Stated algebraically, the amount of the gift tax paid with 
respect to a gift equals:

 [Amount of the gift (C) / Total taxable gifts, plus specific exemption 
                 allowed (D)] x Total gift tax paid (B)

For purposes of the ratio stated in the preceding sentence, the amount 
of the gift referred to as factor ``C'' is the value of the gift reduced 
by any portion excluded or deducted under section 2503(b) (annual 
exclusion), 2522 (charitable deduction), or 2523 (marital deduction) of 
the Code or the corresponding provisions of prior revenue laws. In 
making the computations described in this paragraph, the values to be 
used are those finally determined for purposes of the gift tax.
    (iii) If a gift consists of more than one item of property, the gift 
tax paid with respect to each item shall be computed by allocating to 
each item a proportionate part of the gift tax paid with respect to the 
gift, computed in accordance with the provisions of this paragraph.
    (2) For purposes of this paragraph, it is immaterial whether the 
gift tax is paid by the donor or the donee. Where more than one gift of 
a present interest in property is made to the same donee during a 
calendar period (as defined in Sec.  25.2502-1(c)(1)), the annual 
exclusion shall apply to the earliest of such gifts in point of time.
    (3) Where the donor and his spouse elect under section 2513 or the 
corresponding provisions of prior law to have any gifts made by either 
of them considered as made one-half by each, the amount of gift tax paid 
with respect to such a gift is the sum of the amounts of tax (computed 
separately) paid with respect to each half of the gift by the donor and 
his spouse.
    (4) The method described in section 1015(d)(2) and this paragraph 
for computing the amount of gift tax paid in respect of a gift may be 
illustrated by the following examples:

    Example 1. Prior to 1959 H made no taxable gifts. On July 1, 1959, 
he made a gift to his wife, W, of land having a value for gift purposes 
of $60,000 and gave to his son, S, certain securities valued at $60,000. 
During the year 1959, H also contributed $5,000 in cash to a charitable 
organization described in section 2522. H filed a timely gift tax return 
for 1959 with respect to which he paid gift tax in the amount of $6,000, 
computed as follows:

Value of land given to W..................  ........   $60,000  ........
Less: Annual exclusion....................    $3,000  ........  ........
Marital deduction.........................    30,000    33,000  ........
                                           --------------------
Included amount of gift...................  ........  ........   $27,000
                                                               =========
Value of securities given to S............  ........    60,000  ........
Less: Annual exclusion....................  ........     3,000  ........
                                                     ----------
Included amount of gift...................  ........  ........    57,000
Gift to charitable organization...........  ........     5,000  ........
Less: Annual exclusion....................     3,000  ........  ........
Charitable deduction......................     2,000     5,000  ........
                                           --------------------
Included amount of gift...................  ........  ........         0
Total included gifts......................  ........  ........    84,000
Less: Specific exemption allowed..........  ........  ........    30,000
                                                               ---------
Taxable gifts for 1959....................  ........  ........    54,000
                                                               =========
Gift tax on $54,000.......................  ........  ........     6,000
 


In determining the gift tax paid with respect to the land given to W, 
amount C of the ratio set forth in subparagraph (1)(ii) of this 
paragraph is $60,000, value of property given to W, less $33,000 (the 
sum of $3,000, the amount excluded under section 2503(b), and $30,000, 
the amount deducted under section 2523), or $27,000. Amount D of the 
ratio is $84,000 (the amount of taxable gifts, $54,000, plus the gift 
tax specific exemption, $30,000). The gift tax paid with respect to the 
land given to W is $1,928.57, computed as follows:

$27,000(C) / $84,000(D) x $6,000(B)


[[Page 78]]


    Example 2. The facts are the same as in example (1) except that H 
made his gifts to W and S on July 1, 1971, and that prior to 1971, H 
made no taxable gifts. Furthermore, H made his charitable contribution 
on August 12, 1971. These were the only gifts made by H during 1971. H 
filed his gift tax return for the third quarter of 1971 on November 15, 
1971, as required by section 6075(b). With respect to the above gifts H 
paid a gift tax in the amount of $6,000 on total taxable gifts of 
$54,000 for the third quarter of 1971. The gift tax paid with respect to 
the land given to W is $1,928.57. The computations for these figures are 
identical to those used in example (1).
    Example 3. On January 15, 1956, A made a gift to his nephew, N, of 
land valued at $86,000, and on June 30, 1956, gave N securities valued 
at $40,000. On July 1, 1956, A gave to his sister, S, $46,000 in cash. A 
and his wife, B, were married during the entire calendar year 1956. The 
amount of A's taxable gifts for prior years was zero although in 
arriving at that amount A had used in full the specific exemption 
authorized by section 2521. B did not make any gifts before 1956. A and 
B elected under section 2513 to have all gifts made by either during 
1956 treated as made one-half by A and one-half by B. Pursuant to that 
election, A and B each filed a gift tax return for 1956. A paid gift tax 
of $11,325 and B paid gift tax of $5,250, computed as follows:

------------------------------------------------------------------------
                                                          A         B
------------------------------------------------------------------------
Value of land given to N............................   $43,000   $43,000
Less: exclusion.....................................     3,000     3,000
                                                     -------------------
    Included amount of gift.........................    40,000    40,000
                                                     ===================
Value of securities given to N......................    20,000    20,000
Less: exclusion.....................................      None      None
                                                     -------------------
    Included amount of gift.........................    20,000    20,000
                                                     ===================
Cash gift to S......................................    23,000    23,000
Less: exclusion.....................................     3,000     3,000
                                                     -------------------
    Included amount of gift.........................    20,000    20,000
                                                     ===================
    Total included gifts............................    80,000    80,000
Less: specific exemption............................      None    30,000
                                                     -------------------
    Taxable gifts for 1956..........................    80,000    50,000
                                                     ===================
Gift tax for 1956...................................    11,325     5,250
------------------------------------------------------------------------


The amount of the gift tax paid by A with respect to the land given to N 
is computed as follows:

$40,000(C) / $80,000(D) x $11,325(B) = $5,662.50

The amount of the gift tax paid by B with respect to the land given to N 
is computed as follows:

$40,000(C) / $80,000(D) x $5,250(B) = $2,625

The amount of the gift tax paid with respect to the land is $5,662.50 
plus $2,625, or $8,287.50. Computed in a similar manner, the amount of 
gift tax paid by A with respect to the securities given to N is 
$2,831.25, and the amount of gift tax paid by B with respect thereto is 
$1,312.50, or a total of $4,143.75.
    Example 4. The facts are the same as in example (3) except that A 
gave the land to N on January 15, 1972, the securities to N on February 
3, 1972, and the cash to S on March 7, 1972. As in example (3), the 
amount of A's taxable gifts for taxable years prior to 1972 was zero, 
although in arriving at that amount A had used in full the specific 
exemption authorized by section 2521. B did not make any gifts before 
1972. Pursuant to the election under section 2513, A and B treated all 
gifts made by either during 1972 as made one-half by A and one-half by 
B. A and B each filed a gift tax return for the first quarter of 1972 on 
May 15, 1972, as required by section 6075(b). A paid gift tax of $11,325 
on taxable gifts of $80,000 and B paid gift tax of $5,250 on taxable 
gifts of $50,000. The amount of the gift tax paid by A and B with 
respect to the land given to N is $5,662.50 and $2,625, respectively. 
The computations for these figures are identical to those used in 
example (3).

    (c) Special rule for increased basis for gift tax paid in the case 
of gifts made after December 31, 1976--(1) In general. With respect to 
gifts made after December 31, 1976 (other than gifts between spouses 
described in section 1015(e)), the increase in basis for gift tax paid 
is determined under section 1015(d)(6). Under section 1015(d)(6)(A), the 
increase in basis with respect to gift tax paid is limited to the amount 
(not in excess of the amount of gift tax paid) that bears the same ratio 
to the amount of gift tax paid as the net appreciation in value of the 
gift bears to the amount of the gift.
    (2) Amount of gift. In general, for purposes of section 
1015(d)(6)(A)(ii), the amount of the gift is determined in conformance 
with the provisions of paragraph (b) of this section. Thus, the amount 
of the gift is the amount included with respect to the gift in 
determining (for purposes of section 2503(a)) the total amount of gifts 
made during the calendar year (or calendar quarter in the case of a gift 
made on or before December 31, 1981), reduced by the amount of any 
annual exclusion allowable with respect to the gift under section 
2503(b), and any deductions allowed with respect to the gift under

[[Page 79]]

section 2522 (relating to the charitable deduction) and section 2523 
(relating to the marital deduction). Where more than one gift of a 
present interest in property is made to the same donee during a calendar 
year, the annual exclusion shall apply to the earliest of such gifts in 
point of time.
    (3) Amount of gift tax paid with respect to the gift. In general, 
for purposes of section 1015(d)(6), the amount of gift tax paid with 
respect to the gift is determined in conformance with the provisions of 
paragraph (b) of this section. Where more than one gift is made by the 
donor in a calendar year (or quarter in the case of gifts made on or 
before December 31, 1981), the amount of gift tax paid with respect to 
any specific gift made during that period is the amount which bears the 
same ratio to the total gift tax paid for that period (determined after 
reduction for any gift tax unified credit available under section 2505) 
as the amount of the gift (computed as described in paragraph (c)(2) of 
this section) bears to the total taxable gifts for the period.
    (4) Qualified domestic trusts. For purposes of section 1015(d)(6), 
in the case of a qualified domestic trust (QDOT) described in section 
2056A(a), any distribution during the noncitizen surviving spouse's 
lifetime with respect to which a tax is imposed under section 
2056A(b)(1)(A) is treated as a transfer by gift, and any estate tax paid 
on the distribution under section 2056A(b)(1)(A) is treated as a gift 
tax. The rules under this paragraph apply in determining the extent to 
which the basis in the assets distributed is increased by the tax 
imposed under section 2056A(b)(1)(A).
    (5) Examples. Application of the provisions of this paragraph (c) 
may be illustrated by the following examples:

    Example 1. (i) Prior to 1995, X exhausts X's gift tax unified credit 
available under section 2505. In 1995, X makes a gift to X's child Y, of 
a parcel of real estate having a fair market value of $100,000. X's 
adjusted basis in the real estate immediately before making the gift was 
$70,000. Also in 1995, X makes a gift to X's child Z, of a painting 
having a fair market value of $70,000. X timely files a gift tax return 
for 1995 and pays gift tax in the amount of $55,500, computed as 
follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Value of real estate transferred to Y...........    $100,000  ..........
Less: Annual exclusion..........................      10,000  ..........
                                                 ------------
Included amount of gift (C).....................  ..........     $90,000
Value of painting transferred to Z..............     $70,000  ..........
Less: annual exclusion..........................      10,000  ..........
                                                 ------------
Included amount of gift.........................  ..........      60,000
                                                             -----------
    Total included gifts (D)....................  ..........    $150,000
    Total gift tax liability for 1995 gifts (B).  ..........     $55,500
------------------------------------------------------------------------

    (ii) The gift tax paid with respect to the real estate transferred 
to Y, is determined as follows:
[GRAPHIC] [TIFF OMITTED] TR22AU95.005

    (iii)(A) The amount by which Y's basis in the real property is 
increased is determined as follows:
[GRAPHIC] [TIFF OMITTED] TR22AU95.006

    (B) Y's basis in the real property is $70,000 plus $11,100, or 
$81,100. If X had not exhausted any of X's unified credit, no gift tax 
would have been paid and, as a result, Y's basis would not be increased.
    Example 2. (i) X dies in 1995. X's spouse, Y, is not a United States 
citizen. In order to obtain the marital deduction for property passing 
to X's spouse, X established a QDOT in X's will. In 1996, the trustee of 
the QDOT makes a distribution of principal from the QDOT in the form of 
shares of stock having a fair market value of $70,000 on the date of 
distribution. The trustee's basis in the stock (determined under section 
1014) is $50,000. An estate tax is imposed on the distribution under 
section 2056A(b)(1)(A) in the amount $38,500, and is paid. Y's basis in 
the shares of stock is increased by a portion of the section 2056A 
estate tax paid determined as follows:

[[Page 80]]

[GRAPHIC] [TIFF OMITTED] TR22AU95.007

    (ii) Y's basis in the stock is $50,000 plus $11,000, or $61,000.

    (6) Effective date. The provisions of this paragraph (c) are 
effective for gifts made after August 22, 1995.
    (d) Treatment as adjustment to basis. Any increase in basis under 
section 1015(d) and this section shall, for purposes of section 1016(b) 
(relating to adjustments to a substituted basis), be treated as an 
adjustment under section 1016(a) to the basis of the donee's property to 
which such increase applies. See paragraph (p) of Sec.  1.1016-5.

[T.D. 6693, 28 FR 12818, Dec. 3, 1963, as amended by T.D. 7238, 37 FR 
28715, Dec. 29, 1972; T.D. 7910, 48 FR 40372, Sept. 7, 1983; T.D. 8612, 
60 FR 43537, Aug. 22, 1995]



Sec.  1.1016-1  Adjustments to basis; scope of section.

    Section 1016 and Sec. Sec.  1.1016-2 to 1.1016-10, inclusive, 
contain the rules relating to the adjustments to be made to the basis of 
property to determine the adjusted basis as defined in section 1011. 
However, if the property was acquired from a decedent before his death, 
see Sec.  1.1014-6 for adjustments on account of certain deductions 
allowed the taxpayer for the period between the date of acquisition of 
the property and the date of death of the decedent. If an election has 
been made under the Retirement-Straight Line Adjustment Act of 1958 (26 
U.S.C. 1016 note), see Sec.  1.9001-1 for special rules for determining 
adjusted basis in the case of a taxpayer who has changed from the 
retirement to the straight-line method of computing depreciation 
allowances.



Sec.  1.1016-2  Items properly chargeable to capital account.

    (a) The cost or other basis shall be properly adjusted for any 
expenditure, receipt, loss, or other item, properly chargeable to 
capital account, including the cost of improvements and betterments made 
to the property. No adjustment shall be made in respect of any item 
which, under any applicable provision of law or regulation, is treated 
as an item not properly chargeable to capital account but is allowable 
as a deduction in computing net or taxable income for the taxable year. 
For example, in the case of oil and gas wells no adjustment may be made 
in respect of any intangible drilling and development expense allowable 
as a deduction in computing net or taxable income. See the regulations 
under section 263(c).
    (b) The application of the foregoing provisions may be illustrated 
by the following example:

    Example: A, who makes his returns on the calendar year basis, 
purchased property in 1941 for $10,000. He subsequently expended $6,000 
for improvements. Disregarding, for the purpose of this example, the 
adjustments required for depreciation, the adjusted basis of the 
property is $16,000. If A sells the property in 1954 for $20,000, the 
amount of his gain will be $4,000.

    (c) Adjustments to basis shall be made for carrying charges such as 
taxes and interest, with respect to property (whether real or personal, 
improved or unimproved, and whether productive or unproductive), which 
the taxpayer elects to treat as chargeable to capital account under 
section 266, rather than as an allowable deduction. The term taxes for 
this purpose includes duties and excise taxes but does not include 
income taxes.
    (d) Expenditures described in section 173 to establish, maintain, or 
increase the circulation of a newspaper, magazine, or other periodical 
are chargeable to capital account only in accordance with and in the 
manner provided in the regulations under section 173.



Sec.  1.1016-3  Exhaustion, wear and tear, obsolescence, amortization, 
and depletion for periods since February 28, 1913.

    (a) In general--(1) Adjustment where deduction is claimed. (i) For 
taxable periods beginning on or after January 1, 1952, the cost or other 
basis of property shall be decreased for exhaustion, wear and tear, 
obsolescence, amortization,

[[Page 81]]

and depletion by the greater of the following two amounts:
    (a) The amount allowed as deductions in computing taxable income, to 
the extent resulting in a reduction of the taxpayer's income taxes, or
    (b) The amount allowable for the years involved.

See paragraph (b) of this section. Where the taxpayer makes an 
appropriate election the above rule is applicable for periods since 
February 28, 1913, and before January 1, 1952. See paragraph (d) of this 
section. For rule for such periods where no election is made, see 
paragraph (c) of this section.
    (ii) The determination of the amount properly allowable for 
exhaustion, wear and tear, obsolescence, amortization, and depletion 
must be made on the basis of facts reasonably known to exist at the end 
of the taxable year. A taxpayer is not permitted to take advantage in a 
later year of the taxpayer's prior failure to take any such allowance or 
the taxpayer's taking an allowance plainly inadequate under the known 
facts in prior years. In the case of depreciation, if in prior years the 
taxpayer has consistently taken proper deductions under one method, the 
amount allowable for such prior years may not be increased, even though 
a greater amount would have been allowable under another proper method. 
For rules governing losses on retirement or disposition of depreciable 
property, including rules for determining basis, see Sec.  1.167(a)-8, 
1.168(i)-1(e), or 1.168(i)-8, as applicable. The application of this 
paragraph is illustrated by the following example (for purposes of this 
example, assume section 167(f)(1) as in effect on September 19, 2013, 
applies to taxable years beginning on or after January 1, 2014):

    Example. On July 1, 2014, A, a calendar-year taxpayer, purchased and 
placed in service ``off-the-shelf'' computer software at a cost of 
$36,000. This computer software is not an amortizable section 197 
intangible. Pursuant to section 167(f)(1), the useful life of the 
computer software is 36 months. It has no salvage value. Computer 
software placed in service in 2014 is not eligible for the additional 
first year depreciation deduction provided by section 168(k). A did not 
deduct any depreciation for the computer software for 2014 and deducted 
depreciation of $12,000 for the computer software for 2015. As a result, 
the total amount of depreciation allowed for the computer software as of 
December 31, 2015, was $12,000. However, the total amount of 
depreciation allowable for the computer software as of December 31, 
2015, is $18,000 ($6,000 for 2014 + $12,000 for 2015). As a result, the 
unrecovered cost of the computer software as of December 31, 2015, is 
$18,000 (cost of $36,000 less the depreciation allowable of $18,000 as 
of December 31, 2015). Accordingly, depreciation for 2016 for the 
computer software is $12,000 (unrecovered cost of $18,000 divided by the 
remaining useful life of 18 months as of January 1, 2016, multiplied by 
12 full months in 2016).

    (2) Adjustment for amount allowable where no depreciation deduction 
claimed. (i) If the taxpayer has not taken a depreciation deduction 
either in the taxable year or for any prior taxable year, adjustments to 
basis of the property for depreciation allowable shall be determined by 
using the straight-line method of depreciation. (See Sec.  1.1016-4 for 
adjustments in the case of persons exempt from income taxation.)
    (ii) For taxable years beginning after December 31, 1953, and ending 
after August 16, 1954, if the taxpayer with respect to any property has 
taken a deduction for depreciation properly under one of the methods 
provided in section 167(b) for one or more years but has omitted the 
deduction in other years, the adjustment to basis for the depreciation 
allowable in such a case will be the deduction under the method which 
was used by the taxpayer with respect to that property. Thus, if A 
acquired property in 1954 on which he properly computed his depreciation 
deduction under the method described in section 167(b)(2) (the 
declining-balance method) for the first year of its useful life but did 
not take a deduction in the second and third year of the asset's life, 
the adjustment to basis for depreciation allowable for the second and 
third year will be likewise computed under the declining-balance method.
    (3) Adjustment for depletion deductions with respect to taxable 
years before 1932. Where for any taxable year before the taxable year 
1932 the depletion allowance was based on discovery value or a 
percentage of income, then the adjustment for depletion for such year 
shall not exceed a depletion deduction which would have been allowable 
for such year if computed without reference to

[[Page 82]]

discovery value or a percentage of income.
    (b) Adjustment for periods beginning on or after January 1, 1952. 
The decrease required by paragraph (a) of this section for deductions in 
respect of any period beginning on or after January 1, 1952, shall be 
whichever is the greater of the following amounts:
    (1) The amount allowed as deductions in computing taxable income 
under subtitle A of the Code or prior income tax laws and resulting (by 
reason of the deductions so allowed) in a reduction for any taxable year 
of the taxpayer's taxes under subtitle A of the Code (other than chapter 
2, relating to tax on self-employment income) or prior income, war-
profits, or excess-profits tax laws; or
    (2) The amount properly allowable as deductions in computing taxable 
income under subtitle A of the Code or prior income tax laws (whether or 
not the amount properly allowable would have caused a reduction for any 
taxable year of the taxpayer's taxes).
    (c) Adjustment for periods since February 28, 1913, and before 
January 1, 1952, where no election made. If no election has been 
properly made under section 1020, or under section 113(d) of the 
Internal Revenue Code of 1939 (see paragraph (d) of this section), the 
decrease required by paragraph (a) of this section for deductions in 
respect of any period since February 28, 1913, and before January 1, 
1952, shall be whichever of the following amounts is the greater:
    (1) The amount allowed as deductions in computing net income under 
chapter 1 of the Internal Revenue Code of 1939 or prior income tax laws;
    (2) The amount properly allowable in computing net income under 
chapter 1 of the Internal Revenue Code of 1939 or prior income tax laws.

For the purpose of determining the decrease required by this paragraph, 
it is immaterial whether or not the amount under subparagraph (1) of 
this paragraph or the amount under subparagraph (2) of this paragraph 
would have resulted in a reduction for any taxable year of the 
taxpayer's taxes.
    (d) Adjustment for periods since February 28, 1913, and before 
January 1, 1952, where election made. If an election has been properly 
made under section 1020, or under section 113(d) of the Internal Revenue 
Code of 1939, the decrease required by paragraph (a) of this section for 
deductions in respect of any period since February 28, 1913, and before 
January 1, 1952, shall be whichever is the greater of the following 
amounts:
    (1) The amount allowed as deductions in computing net income under 
chapter 1 of the Internal Revenue Code of 1939 or prior income tax laws 
and resulting (by reason of the deductions so allowed) in a reduction 
for any taxable year of the taxpayer's taxes under such chapter 1 (other 
than subchapter E, relating to tax on self-employment income), 
subchapter E, chapter 2, of the Internal Revenue Code of 1939, or prior 
income, war-profits, or excess-profits tax laws;
    (2) The amount properly allowable as deductions in computing net 
income under chapter 1 of the Internal Revenue Code of 1939 or prior 
income tax laws (whether or not the amount properly allowable would have 
caused a reduction for any taxable year of the taxpayer's taxes).
    (e) Determination of amount allowed which reduced taxpayer's taxes. 
(1) As indicated in paragraphs (b) and (d) of this section, there are 
situations in which it is necessary to determine (for the purpose of 
ascertaining the basis adjustment required by paragraph (a) of this 
section) the extent to which the amount allowed as deductions resulted 
in a reduction for any taxable year of the taxpayer's taxes under 
subtitle A (other than chapter 2 relating to tax on self-employment 
income) of the Code, or prior income, war-profits, or excess-profits tax 
laws. This amount (amount allowed which resulted in a reduction of the 
taxpayer's taxes) is hereinafter referred to as the tax-benefit amount 
allowed. For the purpose of determining whether the tax-benefit amount 
allowed exceeded the amount allowable, a determination must be made of 
that portion of the excess of the amount allowed over the amount 
allowable which, if disallowed, would not have resulted in an increase 
in any such tax previously determined. If the entire excess of the 
amount allowed over the amount allowable could be disallowed without any 
such increase in tax, the

[[Page 83]]

tax-benefit amount allowed shall not be considered to have exceeded the 
amount allowable. In such a case (if paragraph (b) or (d) of this 
section is applicable) the reduction in basis required by paragraph (a) 
of this section would be the amount properly allowable as a deduction. 
If only part of such excess could be disallowed without any such 
increase in tax, the tax-benefit amount allowed shall be considered to 
exceed the amount allowable to the extent of the remainder of such 
excess. In such a case (if paragraph (b) or (d) of this section is 
applicable), the reduction in basis required by paragraph (a) of this 
section would be the amount of the tax-benefit amount allowed.
    (2) For the purpose of determining the tax-benefit amount allowed 
the tax previously determined shall be determined under the principles 
of section 1314. The only adjustments made in determining whether there 
would be an increase in tax shall be those resulting from the 
disallowance of the amount allowed. The taxable years for which the 
determination is made shall be the taxable year for which the deduction 
was allowed and any other taxable year which would be affected by the 
disallowance of such deduction. Examples of such other taxable years are 
taxable years to which there was a carryover or carryback of a net 
operating loss from the taxable year for which the deduction was 
allowed, and taxable years for which a computation under section 111 or 
section 1333 was made by reference to the taxable year for which the 
deduction was allowed. In determining whether the disallowance of any 
part of the deduction would not have resulted in an increase in any tax 
previously determined, proper adjustment must be made for previous 
determinations under section 1311, or section 3801 of the Internal 
Revenue Code of 1939, and for any previous application of section 
1016(a)(2)(B), or section 113(b) (1)(B)(ii) of the Internal Revenue Code 
of 1939.
    (3) If a determination under section 1016(a)(2)(B) must be made with 
respect to several properties for each of which the amount allowed for 
the taxable year exceeded the amount allowable, the tax-benefit amount 
allowed with respect to each of such properties shall be an allocated 
portion of the tax-benefit amount allowed determined by reference to the 
sum of the amounts allowed and the sum of the amounts allowable with 
respect to such several properties.
    (4) In the case of property held by a partnership or trust, the 
computation of the tax-benefit amount allowed shall take into account 
the tax benefit of the partners or beneficiaries, as the case may be, 
from the deduction by the partnership or trust of the amount allowed to 
the partnership or the trust. For this purpose, the determination of the 
amount allowed which resulted in a tax benefit to the partners or 
beneficiaries shall be made in the same manner as that provided above 
with respect to the taxes of the person holding the property.
    (5) A taxpayer seeking to limit the adjustment to basis to the tax-
benefit amount allowed for any period, in lieu of the amount allowed, 
must establish the tax-benefit amount allowed. A failure of adequate 
proof as to the tax-benefit amount allowed with respect to one period 
does not preclude the taxpayer from limiting the adjustment to basis to 
the tax-benefit amount allowed with respect to another period for which 
adequate proof is available. For example, a corporate transferee may 
have available adequate records with respect to the tax effect of the 
deduction of erroneous depreciation for certain taxable years, but may 
not have available adequate records with respect to the deduction of 
excessive depreciation for other taxable years during which the property 
was held by its transferor. In such case the corporate transferee shall 
not be denied the right to apply this section with respect to the 
erroneous depreciation for the period for which adequate proof is 
available.
    (f) Determination of amount allowable in prior taxable years. (1) 
One of the factors in determining the adjustment to basis as of any date 
is the amount of depreciation, depletion, etc., allowable for periods 
prior to such date. The amount allowable for such prior periods is 
determined under the law applicable to such prior periods; all 
adjustments required by the law applicable to such periods are made in 
determining

[[Page 84]]

the adjusted basis of the property for the purpose of determining the 
amount allowable. Provisions corresponding to the rules in section 
1016(a)(2)(B) described in paragraphs (d) and (e) of this section, which 
limit adjustments to the tax-benefit amount allowed where an election is 
properly exercised, were first enacted by the Act of July 14, 1952 (66 
Stat. 629). That law provided that corresponding rules are deemed to be 
includible in all revenue laws applicable to taxable years ending after 
December 31, 1931. Accordingly, those rules shall be taken into account 
in determining the amount of depreciation, etc., allowable for any 
taxable year ending after December 31, 1931. For example, if the 
adjusted basis of property held by the taxpayer since January 1, 1930, 
is determined as of January 1, 1955, and if an election was properly 
made under section 1020, or section 113(d) of the Internal Revenue Code 
of 1939, then the amount allowable which is taken into account in 
computing the adjusted basis as of January 1, 1955, shall be determined 
by taking those rules into account for all taxable years ending after 
December 31, 1931. The Act of July 14, 1952, made no change in the law 
applicable in determining the amount allowable for taxable years ending 
before January 1, 1932. If there was a final decision of a court prior 
to the enactment of the Act of July 14, 1952, determining the amount 
allowable for a particular taxable year, such determination shall be 
adjusted. In such case the adjustment shall be made only for the purpose 
of taking the provision of that law into account and only to the extent 
made necessary by such provisions.
    (2) Although the Act of July 14, 1952, amended the law applicable to 
all taxable years ending after December 31, 1931, the amendment does not 
permit refund, credit, or assessment of a deficiency for any taxable 
year for which such refund, credit, or assessment was barred by any law 
or rule of law.
    (g) Property with transferred basis. The following rules apply in 
the determination of the adjustments to basis of property in the hands 
of a transferee, donee, or grantee which are required by section 
1016(b), or section 113(b)(2) of the Internal Revenue Code of 1939, with 
respect to the period the property was held by the transferor, donor, or 
grantor:
    (1) An election or a revocation of an election under section 1020, 
or section 113(d) of the Internal Revenue Code of 1939, by a transferor, 
donor, or grantor, which is made after the date of the transfer, gift, 
or grant of the property shall not affect the basis of such property in 
the hands of the transferee, donee, or grantee. An election or a 
revocation of an election made before the date of the transfer, gift, or 
grant of the property shall be taken into account in determining under 
section 1016(b) the adjustments to basis of such property as of the date 
of the transfer, gift, or grant, whether or not an election or a 
revocation of an election under section 1020, or section 113(d) of the 
Internal Revenue Code of 1939, was made by the transferee, donee, or 
grantee.
    (2) An election by the transferee, donee, or grantee or a revocation 
of such an election shall be applicable in determining the adjustments 
to basis for the period during which the property was held by the 
transferor, donor, or grantor, whether or not the transferor, donor, or 
grantor had made an election or a revocation of an election, provided 
that the property was held by the transferee, donee, or grantee at any 
time on or before the date on which the election or revocation was made.
    (h) Application to a change in method of accounting. For purposes of 
determining whether a change in depreciation or amortization for 
property subject to section 167, 168, 197, 1400I, 1400L(c), to section 
168 prior to its amendment by the Tax Reform Act of 1986 (100 Stat. 
2121) (former section 168), or to an additional first year depreciation 
deduction provision of the Internal Revenue Code (for example, section 
168(k), 1400L(b), or 1400N(d)) is a change in method of accounting under 
section 446(e) and the regulations under section 446(e), section 
1016(a)(2) does not permanently affect a taxpayer's lifetime income.
    (i) Examples. The application of section 1016(a) (1) and (2) may be 
illustrated by the following examples:

    Example 1. The case of Corporation A discloses the following facts:

[[Page 85]]


The cost or other basis is to be adjusted by $16,500 with respect to the 
years 1952-54, that is, by the amount allowable but not less than the 
amount allowed which reduced the taxpayer's taxes. An adjustment must 
also be made with respect to the years 1949-1951, the amount of such 
adjustment depending upon whether an election was properly made under 
section 1020, or section 113(d) of the Internal Revenue Code of 1939. If 
no such election was made, the amount of the adjustment with respect to 
the years 1949-1951 is $19,500, that is, the amount allowed but not less 
than the amount allowable. If an election was properly made, the amount 
of the adjustment with respect to the years 1949-1951 is $19,000, that 
is, the amount allowable but not less than the amount allowed which 
reduced the taxpayer's taxes.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                          (6)--Amount
                                                                                 (3)--Amount                           (5)--Amount     allowable but not
                                                              (2)--Amount       allowed which       (4)--Amount     allowable but not   less than amount
                        (1)--Year                               allowed            reduced           allowable       less than amount    allowed which
                                                                               taxpayer's taxes                          allowed            reduced
                                                                                                                                        taxpayer's taxes
--------------------------------------------------------------------------------------------------------------------------------------------------------
1949.....................................................             $6,000             $5,500             $5,000             $6,000             $5,500
1950.....................................................              7,000              7,000              6,500              7,000              7,000
1951.....................................................              5,000              4,000              6,500              6,500              6,500
                                                          ----------------------------------------------------------------------------------------------
  Total, 1949-1951.......................................  .................  .................  .................             19,500             19,000
                                                          ==============================================================================================
1952.....................................................              6,500              6,500              6,000  .................              6,500
1953.....................................................              5,000              4,000              4,000  .................              4,000
1954.....................................................              4,500              4,500              6,000  .................              6,000
                                                          ----------------------------------------------------------------------------------------------
  Total, 1952-1954.......................................  .................  .................  .................  .................             16,500
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 2. Corporation A, which files its returns on the basis of a 
calendar year, purchased a building on January 1, 1950, at a cost of 
$100,000. On the basis of the facts reasonably known to exist at the end 
of 1950, a period of 50 years should have been used as the correct 
useful life of the building; nevertheless, depreciation was computed by 
Corporation A on the basis of a useful life of 25 years, and was allowed 
for 1950 through 1953 as a deduction in an annual amount of $4,000. The 
building was sold on January 1, 1954. Corporation A did not make an 
election under section 1020, or section 113(d) of the Internal Revenue 
Code of 1939. No part of the amount allowed Corporation A for any of the 
years 1950 through 1953 resulted in a reduction of Corporation A's 
taxes. The adjusted basis of the building as of January 1, 1954, is 
$88,166, computed as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Adjustments to
                                                              basis as of     Adjusted basis on  Remaining life on     Depreciation       Depreciation
                       Taxable year                           beginning of        January 1          January 1          allowable           allowed
                                                              taxable year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1950.....................................................  .................           $100,000                 50             $2,000             $4,000
1951.....................................................             $4,000             96,000                 49              1,959              4,000
1952.....................................................              8,000             92,000                 48              1,917              4,000
1953.....................................................              9,917             90,083                 47              1,917              4,000
1954.....................................................             11,834             88,166  .................  .................  .................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 3. The facts are the same as in example (2), except that 
Corporation A made a proper election under section 1020. In such case, 
the adjusted basis of the building as of January 1, 1954, is $92,000 
computed as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Adjustments to
                                                              basis as of     Adjusted basis on  Remaining life on     Depreciation       Depreciation
                       Taxable year                           beginning of        January 1          January 1          allowable           allowed
                                                              taxable year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1950.....................................................  .................           $100,000                 50             $2,000             $4,000
1951.....................................................             $2,000             98,000                 49              2,000              4,000
1952.....................................................              4,000             96,000                 48              2,000              4,000
1953.....................................................              6,000             94,000                 47              2,000              4,000
1954.....................................................              8,000             92,000
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 86]]

    Example 4. If it is assumed that in example (2), or in example (3), 
all of the deduction allowed Corporation A for 1953 had resulted in a 
reduction of A's taxes, the adjustment to the basis of the building for 
depreciation for 1953 would reflect the entire $4,000 deduction. In such 
case, the adjusted basis of the building as of January 1, 1954, would be 
$86,083 in example (2), and $90,000 in example (3).
    Example 5. The facts are the same as in example (2), except that for 
the year 1950 all of the $4,000 amount allowed Corporation A as a 
deduction for depreciation for that year resulted in a reduction of A's 
taxes. In such case, the adjustments to the basis of the building remain 
the same as those set forth in example (2).
    Example 6. The facts are the same as in example (3), except that for 
the year 1950 all of the $4,000 amount allowed Corporation A as a 
deduction for depreciation resulted in a reduction of A's taxes. In such 
case, the adjusted basis of the building as of January 1, 1954, is 
$90,123, computed as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Adjustments to
                                                              basis as of     Adjusted basis on  Remaining life on     Depreciation       Depreciation
                       Taxable year                           beginning of        January 1          January 1          allowable           allowed
                                                              taxable year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1950.....................................................  .................           $100,000                 50             $2,000             $4,000
1951.....................................................             $4,000             96,000                 49              1,959              4,000
1952.....................................................              5,959             94,041                 48              1,959              4,000
1953.....................................................              7,918             92,082                 47              1,959              4,000
1954.....................................................              9,877             90,123
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (j) Effective/applicability dates--(1) In general. Except as 
provided in paragraphs (j)(2) and (j)(3) of this section, this section 
applies on or after December 30, 2003. For the applicability of 
regulations before December 30, 2003, see Sec.  1.1016-3 in effect prior 
to December 30, 2003 (Sec.  1.1016-3 as contained in 26 CFR part 1 
edition revised as of April 1, 2003).
    (2) Depreciation or amortization changes. Paragraph (h) of this 
section applies to a change in depreciation or amortization for property 
subject to section 167, 168, 197, 1400I, 1400L(c), to former section 
168, or to an additional first year depreciation deduction provision of 
the Internal Revenue Code (for example, section 168(k), 1400L(b), or 
1400N(d)) for taxable years ending on or after December 30, 2003.
    (3) Application of Sec.  1.1016-3T(a)(1)(ii)--(i) In general. 
Paragraph (a)(1)(ii) of this section applies to taxable years beginning 
on or after January 1, 2014. Except as provided in paragraphs (j)(3)(ii) 
and (j)(3)(iii) of this section, Sec.  1.1016-3(a)(1)(ii) as contained 
in 26 CFR part 1 edition revised as of April 1, 2011, applies to taxable 
years beginning before January 1, 2014.
    (ii) Early application of Sec.  1.1016-3(a)(1)(ii). A taxpayer may 
choose to apply paragraph (a)(1)(ii) of this section to taxable years 
beginning on or after January 1, 2012.
    (iii) Optional application of TD 9564. A taxpayer may choose to 
apply Sec.  1.1016-3T(a)(1)(ii) as contained in TD 9564 (76 FR 81060) 
December 27, 2011, to taxable years beginning on or after January 1, 
2012, and before January 1, 2014.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 9105, 69 FR 12, Jan. 2, 2004; T.D. 9307, Dec. 28, 2006; 
T.D. 9564, 76 FR 81126, Dec. 27, 2011; T.D. 9636, 78 FR 57746, Sept. 19, 
2013; T.D. 9689, 79 FR 48684, Aug. 18, 2014]



Sec.  1.1016-4  Exhaustion, wear and tear, obsolescence, amortization, 
and depletion; periods during which income was not subject to tax.

    (a) Adjustments to basis must be made for exhaustion, wear and tear, 
obsolescence, amortization, and depletion to the extent actually 
sustained in respect of:
    (1) Any period before March 1, 1913,
    (2) Any period since February 28, 1913, during which the property 
was held by a person or organization not subject to income taxation 
under chapter 1 of the Code or prior income tax laws,
    (3) Any period since February 28, 1913, and before January 1, 1958, 
during which the property was held by a person subject to tax under part 
I, subchapter L, chapter 1 of the Code, or prior income tax law, to the 
extent that section 1016(a)(2) does not apply, and
    (4) Any period since February 28, 1913, during which such property 
was held by a person subject to tax under part II of subchapter L, 
chapter 1 of the Code,

[[Page 87]]

or prior income tax law, to the extent that section 1016(a)(2) does not 
apply.
    (b) The amount of the adjustments described in paragraph (a) of this 
section actually sustained is that amount charged off on the books of 
the taxpayer where such amount is considered by the Commissioner to be 
reasonable. Otherwise, the amount actually sustained will be the amount 
that would have been allowable as a deduction:
    (1) During the period described in paragraph (a) (1) or (2) of this 
section, had the taxpayer been subject to income tax during those 
periods, or
    (2) During the period described in paragraph (a) (3) or (4) of this 
section, with respect to property held by a taxpayer described in that 
paragraph, to the extent that section 1016(a)(2) was inapplicable to 
such property during that period.

In the case of a taxpayer subject to the adjustment required by 
subparagraph (1) or (2) of this paragraph, depreciation shall be 
determined by using the straight line method.

[T.D. 6681, 28 FR 11131, Oct. 17, 1963]



Sec.  1.1016-5  Miscellaneous adjustments to basis.

    (a) Certain stock distributions. (1) In the case of stock, the cost 
or other basis must be diminished by the amount of distributions 
previously made which, under the law applicable to the year in which the 
distribution was made, either were tax free or were applicable in 
reduction of basis (not including distributions made by a corporation 
which was classified as a personal service corporation under the 
provisions of the Revenue Act of 1918 (40 Stat. 1057) or the Revenue Act 
of 1921 (42 Stat. 227), out of its earnings or profits which were 
taxable in accordance with the provisions of section 218 of the Revenue 
Act of 1918 or the Revenue Act of 1921). For adjustments to basis in the 
case of certain corporate distributions, see section 301 and the 
regulations thereunder.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example: A, who makes his returns upon the calendar year basis, 
purchased stock in 1923 for $5,000. He received in 1924 a distribution 
of $2,000 paid out of earnings and profits of the corporation 
accumulated before March 1, 1913. The adjusted basis for determining the 
gain or loss from the sale or other disposition of the stock in 1954 is 
$5,000 less $2,000, or $3,000, and the amount of the gain or loss from 
the sale or other disposition of the stock is the difference between 
$3,000 and the amount realized from the sale or other disposition.

    (b) Amortizable bond premium--(1) In general. A holder's basis in a 
bond is reduced by the amount of bond premium used to offset qualified 
stated interest income under Sec.  1.171-2. This reduction occurs when 
the holder takes the qualified stated interest into account under the 
holder's regular method of accounting.
    (2) Special rules for taxable bonds. A holder's basis in a taxable 
bond is reduced by the amount of bond premium allowed as a deduction 
under Sec.  1.171-3(c)(5)(ii) (relating to the issuer's call of a 
taxable bond) or under Sec.  1.171-2(a)(4)(i)(A) (relating to excess 
bond premium).
    (3) Special rule for tax-exempt obligations. A holder's basis in a 
tax-exempt obligation is reduced by the amount of excess bond premium 
that is treated as a nondeductible loss under Sec.  1.171-2(a)(4)(ii).
    (c) Municipal bonds. In the case of a municipal bond (as defined in 
section 75(b)), basis shall be adjusted to the extent provided in 
section 75 or as provided in section 22(o) of the Internal Revenue Code 
of 1939, and the regulations thereunder.
    (d) Sale or exchange of residence. Where the acquisition of a new 
residence results in the nonrecognition of any part of the gain on the 
sale, or exchange, or involuntary conversion of the old residence, the 
basis of the new residence shall be reduced by the amount of the gain 
not so recognized pursuant to section 1034(a), or section 112(n) of the 
Internal Revenue Code of 1939, and the regulations thereunder. See 
section 1034(e) and the regulations thereunder.
    (e) Loans from Commodity Credit Corporation. In the case of property 
pledged to the Commodity Credit Corporation, the basis of such property 
shall be increased by the amount received as a loan from such 
corporation and treated by the taxpayer as income for the year in which 
received under

[[Page 88]]

section 77, or under section 123 of the Internal Revenue Code of 1939. 
The basis of such property shall be reduced to the extent of any 
deficiency on such loan with respect to which the taxpayer has been 
relieved from liability.
    (f) Deferred development and exploration expenses. Expenditures for 
development and exploration of mines or mineral deposits treated as 
deferred expenses under sections 615 and 616, or under the corresponding 
provisions of prior income tax laws, are chargeable to capital account 
and shall be an adjustment to the basis of the property to which they 
relate. The basis so adjusted shall be reduced by the amount of such 
expenditures allowed as deductions which results in a reduction for any 
taxable year of the taxpayer's taxes under subtitle A (other than 
chapter 2 relating to tax on self-employment income) of the Code, or 
prior income, war-profits, or excess-profits tax laws, but not less than 
the amounts allowable under such provisions for the taxable year and 
prior years. This amount is considered as the tax-benefit amount allowed 
and shall be determined in accordance with paragraph (e) of Sec.  
1.1016-3. For example, if a taxpayer purchases unexplored and 
undeveloped mining property for $1,000,000 and at the close of the 
development stage has incurred exploration and development costs of 
$9,000,000 treated as deferred expenses, the basis of such property at 
such time for computing gain or loss will be $10,000,000. Assuming that 
the taxpayer in this example has operated the mine for several years and 
has deducted allowable percentage depletion in the amount of $2,000,000 
and has deducted allowable deferred exploration and development 
expenditures of $2,000,000, the basis of the property in the taxpayer's 
hands for purposes of determining gain or loss from a sale will be 
$6,000,000.
    (g) Sale of land with unharvested crop. In the case of an 
unharvested crop which is sold, exchanged, or involuntarily converted 
with the land and which is considered as property used in the trade or 
business under section 1231, the basis of such crop shall be increased 
by the amount of the items which are attributable to the production of 
such crop and which are disallowed, under section 268, as deductions in 
computing taxable income. The basis of any other property shall be 
decreased by the amount of any such items which are attributable to such 
other property, notwithstanding any provisions of section 1016 or of 
this section to the contrary. For example, if the items attributable to 
the production of an unharvested crop consist only of fertilizer costing 
$100 and $50 depreciation on a tractor used only to cultivate such crop, 
and such items are disallowed under section 268, the adjustments to the 
basis of such crop shall include an increase of $150 for such items and 
the adjustments to the basis of the tractor shall incude a reduction of 
$50 for depreciation.
    (h) Consent dividends. (1) In the case of amounts specified in a 
shareholder's consent to which section 28 of the Internal Revenue Code 
of 1939 applies, the basis of the consent stock shall be increased to 
the extent provided in subsection (h) of such section.
    (2) In the case of amounts specified in a shareholder's consent to 
be treated as a consent dividend to which section 565 applies, the basis 
of the consent stock shall be increased by the amount which, under 
section 565(c)(2), is treated as contributed to the capital of the 
corporation.
    (i) Stock in foreign personal holding company. In the case of the 
stock of a United States shareholder in a foreign personal holding 
company, basis shall be adjusted to the extent provided in section 
551(f) or corresponding provisions of prior income tax laws.
    (j) Research and experimental expenditures. Research and 
experimental expenditures treated as deferred expenses under section 
174(b) are chargeable to capital account and shall be an adjustment to 
the basis of the property to which they relate. The basis so adjusted 
shall be reduced by the amount of such expenditures allowed as 
deductions which results in a reduction for any taxable year of the 
taxpayer's taxes under subtitle A (other than chapter 2 relating to tax 
on self-employment income) of the Code, or prior income, war-profits, or 
excess-profits tax laws, but not less than the amounts allowable under 
such provisions for the taxable year and prior years. This

[[Page 89]]

amount is considered as the tax-benefit amount allowed and shall be 
determined in accordance with paragraph (e) of Sec.  1.1016-3.
    (k) Deductions disallowed in connection with disposal of coal or 
domestic iron ore. Basis shall be adjusted by the amount of the 
deductions disallowed under section 272 with respect to the disposal of 
coal or domestic iron ore covered by section 631.
    (l) Expenditures attributable to grants or loans covered by section 
621. In the case of expenditures attributable to a grant or loan made to 
a taxpayer by the United States for the encouragement of exploration 
for, or development or mining of, critical and strategic minerals or 
metals, basis shall be adjusted to the extent provided in section 621, 
or in section 22(b)(15) of the Internal Revenue Code of 1939.
    (m) Trademark and trade name expenditures. Trademark and trade name 
expenditures treated as deferred expenses under section 177 are 
chargeable to capital account and shall be an adjustment to the basis of 
the property to which they relate. The basis so adjusted shall be 
reduced by the amount of such expenditures allowed as deductions which 
results in a reduction for any taxable year of the taxpayer's taxes 
under subtitle A (other than chapter 2, relating to tax on self-
employment income) of the Code, but not less than the amounts allowable 
under such section for the taxable year and prior years. This amount is 
considered as the tax-benefit amount allowed and shall be determined in 
accordance with paragraph (e) of Sec.  1.1016-3.
    (n) Life insurance companies. In the case of any evidence of 
indebtedness referred to in section 818(b), the basis shall be adjusted 
to the extent of the adjustments required under section 818(b) (or the 
corresponding provisions of prior income tax laws) for the taxable year 
and all prior taxable years. The basis of any such evidence of 
indebtedness shall be reduced by the amount of the adjustment required 
under section 818(b) (or the corresponding provision of prior income tax 
laws) on account of amortizable premium and shall be increased by the 
amount of the adjustment required under section 818(b) on account of 
accruable discounts.
    (o) Stock and indebtedness of electing small business corporation. 
In the case of a shareholder of an electing small business corporation, 
as defined in section 1371(b), the basis of the shareholder's stock in 
such corporation, and the basis of any indebtedness of such corporation 
owing to the shareholder, shall be adjusted to the extent provided in 
Sec. Sec.  1.1375-4, 1.1376-1, and 1.1376-2.
    (p) Gift tax paid on certain property acquired by gift. Basis shall 
be adjusted by that amount of the gift tax paid in respect of property 
acquired by gift which, under section 1015(d), is an increase in the 
basis of such property.
    (q) Section 38 property. In the case of property which is or has 
been section 38 property (as defined in section 48(a)), the basis shall 
be adjusted to the extent provided in section 48(g) and in section 
203(a)(2) of the Revenue Act of 1964.
    (r) Stock in controlled foreign corporations and other property. In 
the case of stock in controlled foreign corporations (or foreign 
corporations which were controlled foreign corporations) and of property 
by reason of which a person is considered as owning such stock, the 
basis shall be adjusted to the extent provided in section 961.
    (s) Original issue discount. In the case of certain corporate 
obligations issued at a discount after May 27, 1969, the basis shall be 
increased under section 1232(a)(3)(E) by the amount of original issue 
discount included in the holder's gross income pursuant to section 
1232(a)(3).
    (t) Section 23 credit. In the case of property with respect to which 
a credit has been allowed under section 23 or former section 44C 
(relating to residential energy credit), basis shall be adjusted as 
provided in paragraph (k) of Sec.  1.23-3.
    (u) Gas guzzler tax. In the case of an automobile upon which the gas 
guzzler tax was imposed, the basis shall be reduced as provided in 
section 1016 (d).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960]

    Editorial Note: For Federal Register citations affecting Sec.  
1.1016-5, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.govinfo.gov.

[[Page 90]]



Sec.  1.1016-6  Other applicable rules.

    (a) Adjustments must always be made to eliminate double deductions 
or their equivalent. Thus, in the case of the stock of a subsidiary 
company, the basis thereof must be properly adjusted for the amount of 
the subsidiary company's losses for the years in which consolidated 
returns were made.
    (b) In determining basis, and adjustments to basis, the principles 
of estoppel apply, as elsewhere under the Code, and prior internal 
revenue laws.



Sec.  1.1016-10  Substituted basis.

    (a) Whenever it appears that the basis of property in the hands of 
the taxpayer is a substituted basis, as defined in section 1016(b), the 
adjustments indicated in Sec. Sec.  1.1016-1 to 1.1016-6, inclusive, 
shall be made after first making in respect of such substituted basis 
proper adjustments of a similar nature in respect of the period during 
which the property was held by the transferor, donor, or grantor, or 
during which the other property was held by the person for whom the 
basis is to be determined. In addition, whenever it appears that the 
basis of property in the hands of the taxpayer is a substituted basis, 
as defined in section 1016(b)(1), the adjustments indicated in 
Sec. Sec.  1.1016-7 to 1.1016-9, inclusive, and in section 1017 shall 
also be made, whenever necessary, after first making in respect of such 
substituted basis a proper adjustment of a similar nature in respect of 
the period during which the property was held by the transferor, donor, 
or grantor. Similar rules shall also be applied in the case of a series 
of substituted bases.
    (b)cation of this section may be illustrated by the following 
example:

    Example: A, who makes his returns upon the calendar year basis, in 
1935 purchased the X Building and subsequently gave it to his son B. B 
exchanged the X Building for the Y Building in a tax-free exchange, and 
then gave the Y Building to his wife C. C, in determining the gain from 
the sale or disposition of the Y Building in 1954, is required to reduce 
the basis of the building by deductions for depreciation which were 
successively allowed (but not less than the amount allowable) to A and B 
upon the X Building and to B upon the Y Building, in addition to the 
deductions for depreciation allowed (but not less than the amount 
allowable) to herself during her ownership of the Y Building.



Sec.  1.1017-1  Basis reductions following a discharge of indebtedness.

    (a) General rule for section 108(b)(2)(E). This paragraph (a) 
applies to basis reductions under section 108(b)(2)(E) that are required 
by section 108(a)(1) (A) or (B) because the taxpayer excluded discharge 
of indebtedness (COD income) from gross income. A taxpayer must reduce 
in the following order, to the extent of the excluded COD income (but 
not below zero), the adjusted bases of property held on the first day of 
the taxable year following the taxable year that the taxpayer excluded 
COD income from gross income (in proportion to adjusted basis):
    (1) Real property used in a trade or business or held for 
investment, other than real property described in section 1221(1), that 
secured the discharged indebtedness immediately before the discharge;
    (2) Personal property used in a trade or business or held for 
investment, other than inventory, accounts receivable, and notes 
receivable, that secured the discharged indebtedness immediately before 
the discharge;
    (3) Remaining property used in a trade or business or held for 
investment, other than inventory, accounts receivable, notes receivable, 
and real property described in section 1221(1);
    (4) Inventory, accounts receivable, notes receivable, and real 
property described in section 1221(1); and
    (5) Property not used in a trade or business nor held for 
investment.
    (b) Operating rules--(1) Prior tax-attribute reduction. The amount 
of excluded COD income applied to reduce basis does not include any COD 
income applied to reduce tax attributes under sections 108(b)(2) (A) 
through (D) and, if applicable, section 108(b)(5). For example, if a 
taxpayer excludes $100 of COD income from gross income under section 
108(a) and reduces tax attributes by $40 under sections 108(b)(2) (A) 
through (D), the taxpayer is required to reduce the adjusted bases of 
property by $60 ($100-$40) under section 108(b)(2)(E).

[[Page 91]]

    (2) Multiple discharged indebtednesses. If a taxpayer has COD income 
attributable to more than one discharged indebtedness resulting in the 
reduction of tax attributes under sections 108(b)(2) (A) through (D) 
and, if applicable, section 108(b)(5), paragraph (b)(1) of this section 
must be applied by allocating the tax-attribute reductions among the 
indebtednesses in proportion to the amount of COD income attributable to 
each discharged indebtedness. For example, if a taxpayer excludes $20 of 
COD income attributable to secured indebtedness A and excludes $80 of 
COD income attributable to unsecured indebtedness B (a total exclusion 
of $100), and if the taxpayer reduces tax attributes by $40 under 
sections 108(b)(2) (A) through (D), the taxpayer must reduce the amount 
of COD income attributable to secured indebtedness A to $12 ($20 - ($20 
/ $100 x $40)) and must reduce the amount of COD income attributable to 
unsecured indebtedness B to $48 ($80 - ($80 / $100 x $40)).
    (3) Limitation on basis reductions under section 108(b)(2)(E) in 
bankruptcy or insolvency. If COD income arises from a discharge of 
indebtedness in a title 11 case or while the taxpayer is insolvent, the 
amount of any basis reduction under section 108(b)(2)(E) shall not 
exceed the excess of--
    (i) The aggregate of the adjusted bases of property and the amount 
of money held by the taxpayer immediately after the discharge; over
    (ii) The aggregate of the liabilities of the taxpayer immediately 
after the discharge.
    (4) Transactions to which section 381 applies. If a taxpayer 
realizes COD income that is excluded from gross income under section 
108(a) either during or after a taxable year in which the taxpayer is 
the distributor or transferor of assets in a transaction described in 
section 381(a), the basis of property acquired by the acquiring 
corporation in the transaction must reflect the reductions required by 
section 1017 and this section. For this purpose, the basis of property 
of the distributor or transferor corporation immediately prior to the 
transaction described in section 381(a), but after the determination of 
tax for the year of the distribution or transfer of assets, will be 
available for reduction under section 108(b)(2). However, the basis of 
stock or securities of the acquiring corporation, if any, received by 
the taxpayer in exchange for the transferred assets shall not be 
available for reduction under section 108(b)(2). See Sec.  1.108-7. This 
paragraph (b)(4) applies to discharges of indebtedness occurring on or 
after May 10, 2004.
    (c) Modification of ordering rules for basis reductions under 
sections 108(b)(5) and 108(c)--(1) In general. The ordering rules 
prescribed in paragraph (a) of this section apply, with appropriate 
modifications, to basis reductions under sections 108(b)(5) and (c). 
Thus, a taxpayer that elects to reduce basis under section 108(b)(5) 
may, to the extent that the election applies, reduce only the adjusted 
basis of property described in paragraphs (a) (1), (2), and (3) of this 
section and, if an election is made under paragraph (f) of this section, 
paragraph (a) (4) of this section. Within paragraphs (a) (1), (2), (3) 
and (4) of this section, such a taxpayer may reduce only the adjusted 
bases of depreciable property. A taxpayer that elects to apply section 
108(c) may reduce only the adjusted basis of property described in 
paragraphs (a) (1) and (3) of this section and, within paragraphs (a)(1) 
and (3) of this section, may reduce only the adjusted bases of 
depreciable real property. Furthermore, for basis reductions under 
section 108(c), a taxpayer must reduce the adjusted basis of the 
qualifying real property to the extent of the discharged qualified real 
property business indebtedness before reducing the adjusted bases of 
other depreciable real property. The term qualifying real property means 
real property with respect to which the indebtedness is qualified real 
property business indebtedness within the meaning of section 108(c)(3). 
See paragraphs (f) and (g) of this section for elections relating to 
section 1221(1) property and partnership interests.
    (2) Partial basis reductions under section 108(b)(5). If the amount 
of basis reductions under section 108(b)(5) is less than the amount of 
the COD income excluded from gross income under section 108(a), the 
taxpayer must reduce the balance of its tax attributes, including any 
remaining adjusted bases

[[Page 92]]

of depreciable and other property, by following the ordering rules under 
section 108(b)(2). For example, if a taxpayer excludes $100 of COD 
income from gross income under section 108(a) and elects to reduce the 
adjusted bases of depreciable property by $10 under section 108(b)(5), 
the taxpayer must reduce its remaining tax attributes by $90, starting 
with net operating losses under section 108(b)(2).
    (3) Modification of fresh start rule for prior basis reductions 
under section 108(b)(5). After reducing the adjusted bases of 
depreciable property under section 108(b)(5), a taxpayer must compute 
the limitation on basis reductions under section 1017(b)(2) using the 
aggregate of the remaining adjusted bases of property. For example, if, 
immediately after the discharge of indebtedness in a title 11 case, a 
taxpayer's adjusted bases of property is $100 and its undischarged 
indebtedness is $70, and if the taxpayer elects to reduce the adjusted 
bases of depreciable property by $10 under section 108(b)(5), section 
1017(b)(2) limits any further basis reductions under section 
108(b)(2)(E) to $20 (($100 - $10) - $70).
    (d) Changes in security. If any property is added or eliminated as 
security for an indebtedness during the one-year period preceding the 
discharge of that indebtedness, such addition or elimination shall be 
disregarded where a principal purpose of the change is to affect the 
taxpayer's basis reductions under section 1017.
    (e) Depreciable property. For purposes of this section, the term 
depreciable property means any property of a character subject to the 
allowance for depreciation or amortization, but only if the basis 
reduction would reduce the amount of depreciation or amortization which 
otherwise would be allowable for the period immediately following such 
reduction. Thus, for example, a lessor cannot reduce the basis of leased 
property where the lessee's obligation in respect of the property will 
restore to the lessor the loss due to depreciation during the term of 
the lease, since the lessor cannot take depreciation in respect of such 
property.
    (f) Election to treat section 1221(1) real property as depreciable--
(1) In general. For basis reductions under section 108(b)(5) and basis 
reductions relating to qualified farm indebtedness, a taxpayer may elect 
under sections 1017(b) (3)(E) and (4)(C), respectively, to treat real 
property described in section 1221(1) as depreciable property. This 
election is not available, however, for basis reductions under section 
108(c).
    (2) Time and manner. To make an election under section 1017(b) 
(3)(E) or (4)(C), a taxpayer must enter the appropriate information on 
Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness 
(and Section 1082 Basis Adjustment), and attach the form to a timely 
filed (including extensions) Federal income tax return for the taxable 
year in which the taxpayer has COD income that is excluded from gross 
income under section 108(a). An election under this paragraph (f) may be 
revoked only with the consent of the Commissioner.
    (g) Partnerships--(1) Partnership COD income. For purposes of 
paragraph (a) of this section, a taxpayer must treat a distributive 
share of a partnership's COD income as attributable to a discharged 
indebtedness secured by the taxpayer's interest in that partnership.
    (2) Partnership interest treated as depreciable property--(i) In 
general. For purposes of making basis reductions, if a taxpayer makes an 
election under section 108(b)(5) (or 108(c)), the taxpayer must treat a 
partnership interest as depreciable property (or depreciable real 
property) to the extent of the partner's proportionate share of the 
partnership's basis in depreciable property (or depreciable real 
property), provided that the partnership consents to a corresponding 
reduction in the partnership's basis (inside basis) in depreciable 
property (or depreciable real property) with respect to such partner.
    (ii) Request by partner and consent of partnership--(A) In general. 
Except as otherwise provided in this paragraph (g)(2)(ii), a taxpayer 
may choose whether or not to request that a partnership reduce the 
inside basis of its depreciable property (or depreciable real property) 
with respect to the taxpayer, and the partnership may grant or withhold 
such consent, in its sole discretion. A request by the taxpayer

[[Page 93]]

must be made before the due date (including extensions) for filing the 
taxpayer's Federal income tax return for the taxable year in which the 
taxpayer has COD income that is excluded from gross income under section 
108(a).
    (B) Request for consent required. A taxpayer must request a 
partnership's consent to reduce inside basis if, at the time of the 
discharge, the taxpayer owns (directly or indirectly) a greater than 50 
percent interest in the capital and profits of the partnership, or if 
reductions to the basis of the taxpayer's depreciable property (or 
depreciable real property) are being made with respect to the taxpayer's 
distributive share of COD income of the partnership.
    (C) Granting of request required. A partnership must consent to 
reduce its partners' shares of inside basis with respect to a discharged 
indebtedness if consent is requested with respect to that indebtedness 
by partners owning (directly or indirectly) an aggregate of more than 80 
percent of the capital and profits interests of the partnership or five 
or fewer partners owning (directly or indirectly) an aggregate of more 
than 50 percent of the capital and profits interests of the partnership. 
For example, if there is a cancellation of partnership indebtedness that 
is secured by real property used in a partnership's trade or business, 
and if partners owning (in the aggregate) 90 percent of the capital and 
profits interests of the partnership elect to exclude the COD income 
under section 108(c), the partnership must make the appropriate 
reductions in those partners' shares of inside basis.
    (iii) Partnership consent statement--(A) Partnership requirement. A 
consenting partnership must include with the Form 1065, U.S. Partnership 
Return of Income, for the taxable year following the year that ends with 
or within the taxable year the taxpayer excludes COD income from gross 
income under section 108(a), and must provide to the taxpayer on or 
before the due date of the taxpayer's return (including extensions) for 
the taxable year in which the taxpayer excludes COD income from gross 
income, a statement that--
    (1) Contains the name, address, and taxpayer identification number 
of the partnership; and
    (2) States the amount of the reduction of the partner's 
proportionate interest in the adjusted bases of the partnership's 
depreciable property or depreciable real property, whichever is 
applicable.
    (B) Taxpayer's requirement. For taxable years beginning before 
January 1, 2003, statements described in Sec.  1.1017-1(g)(2)(iii)(A) 
must be attached to a taxpayer's timely filed (including extensions) 
Federal income tax return for the taxable year in which the taxpayer has 
COD income that is excluded from gross income under section 108(a). For 
taxable years beginning after December 31, 2002, taxpayers must retain 
the statements and keep them available for inspection in the manner 
required by Sec.  1.6001-1(e), but are not required to attach the 
statements to their returns.
    (iv) Partner's share of partnership basis--(A) In general. For 
purposes of this paragraph (g), a partner's proportionate share of the 
partnership's basis in depreciable property (or depreciable real 
property) is equal to the sum of--
    (1) The partner's section 743(b) basis adjustments to items of 
partnership depreciable property (or depreciable real property); and
    (2) The common basis depreciation deductions (but not including 
remedial allocations of depreciation deductions under Sec.  1.704-3(d)) 
that, under the terms of the partnership agreement effective for the 
taxable year in which the discharge of indebtedness occurs, are 
reasonably expected to be allocated to the partner over the property's 
remaining useful life. The assumptions made by a partnership in 
determining the reasonably expected allocation of depreciation 
deductions must be consistent for each partner. For example, a 
partnership may not treat the same depreciation deductions as being 
reasonably expected by more than one partner.
    (B) Effective date. This paragraph (g)(2)(iv) applies to elections 
made under sections 108(b)(5) and 108(c) on or after December 15, 1999.
    (v) Treatment of basis reduction--(A) Basis adjustment. The amount 
of the reduction to the basis of depreciable

[[Page 94]]

partnership property constitutes an adjustment to the basis of 
partnership property with respect to the partner only. No adjustment is 
made to the common basis of partnership property. Thus, for purposes of 
income, deduction, gain, loss, and distribution, the partner will have a 
special basis for those partnership properties the bases of which are 
adjusted under section 1017 and this section.
    (B) Recovery of adjustments to basis of partnership property. 
Adjustments to the basis of partnership property under this section are 
recovered in the manner described in Sec.  1.743-1.
    (C) Effect of basis reduction. Adjustments to the basis of 
partnership property under this section are treated in the same manner 
and have the same effect as an adjustment to the basis of partnership 
property under section 743(b). The following example illustrates this 
paragraph (g)(2)(v):

    Example. (i) A, B, and C are equal partners in partnership PRS, 
which owns (among other things) Asset 1, an item of depreciable property 
with a basis of $30,000. A's basis in its partnership interest is 
$20,000. Under the terms of the partnership agreement, A's share of the 
depreciation deductions from Asset 1 over its remaining useful life will 
be $10,000. Under section 1017, A requests, and PRS agrees, to decrease 
the basis of Asset 1 with respect to A by $10,000.
    (ii) In the year following the reduction of basis under section 
1017, PRS amends its partnership agreement to provide that items of 
depreciation and loss from Asset 1 will be allocated equally between B 
and C. In that year, A's distributive share of the partnership's common 
basis depreciation deductions from Asset 1 is now $0. Under Sec.  1.743-
1(j)(4)(ii)(B), the amount of the section 1017 basis adjustment that A 
recovers during the year is $1,000. A will report $1,000 of ordinary 
income because A's distributive share of the partnership's common basis 
depreciation deductions from Asset 1 ($0) is insufficient to offset the 
amount of the section 1017 basis adjustment recovered by A during the 
year ($1,000).
    (iii) In the following year, PRS sells Asset 1 for $15,000 and 
recognizes a $12,000 loss. This loss is allocated equally between B and 
C, and A's share of the loss is $0. Upon the sale of Asset 1, A recovers 
its entire remaining section 1017 basis adjustment ($9,000). A will 
report $9,000 of ordinary income.

    (D) Effective date. This paragraph (g)(2)(v) applies to elections 
made under sections 108(b)(5) and 108(c) on or after December 15, 1999.
    (3) Partnership basis reduction. The rules of this section 
(including this paragraph (g)) apply in determining the properties to 
which the partnership's basis reductions must be made.
    (h) Special allocation rule for cases to which section 1398 applies. 
If a bankruptcy estate and a taxpayer to whom section 1398 applies 
(concerning only individuals under Chapter 7 or 11 of title 11 of the 
United States Code) hold property subject to basis reduction under 
section 108(b) (2)(E) or (5) on the first day of the taxable year 
following the taxable year of discharge, the bankruptcy estate must 
reduce all of the adjusted bases of its property before the taxpayer is 
required to reduce any adjusted bases of property.
    (i) Effective date. This section applies to discharges of 
indebtedness occurring on or after October 22, 1998.

[T.D. 8787, 63 FR 56563, Oct. 22, 1998, as amended by T.D. 8847, 64 FR 
69921, Dec. 15, 1999; T.D. 9080, 68 FR 42593, July 18, 2003; T.D. 9100, 
68 FR 70705, Dec. 19, 2003; T.D. 9100, 69 FR 5017, Feb. 3, 2004; T.D. 
9127, 69 FR 26039, May 11, 2004; T.D. 9300, 71 FR 71042, Dec. 8, 2006]



Sec.  1.1019-1  Property on which lessee has made improvements.

    In any case in which a lessee of real property has erected buildings 
or made other improvements upon the leased property and the lease is 
terminated by forfeiture or otherwise resulting in the realization by 
such lessor of income which, were it not for the provisions of section 
109, would be includible in gross income of the lessor, the amount so 
excluded from gross income shall not be taken into account in 
determining the basis or the adjusted basis of such property or any 
portion thereof in the hands of the lessor. If, however, in any taxable 
year beginning before January 1, 1942, there has been included in the 
gross income of the lessor an amount representing any part of the value 
of such property attributable to such buildings or improvements, the 
basis of each portion of such property shall be properly adjusted for 
the amount so included in gross income. For example, A leased in 1930 to 
B for a period of 25 years unimproved real property and in

[[Page 95]]

accordance with the terms of the lease B erected a building on the 
property. It was estimated that upon expiration of the lease the 
building would have a depreciated value of $50,000, which value the 
lessor elected to report (beginning in 1931) as income over the term of 
the lease. This method of reporting was used until 1942. In 1952 B 
forfeits the lease. The amount of $22,000 reported as income by A during 
the years 1931 to 1941, inclusive, shall be added to the basis of the 
property represented by the improvements in the hands of A. If in such 
case A did not report during the period of the lease any income 
attributable to the value of the building erected by the lessee and the 
lease was forfeited in 1940 when the building was worth $75,000, such 
amount, having been included in gross income under the law applicable to 
that year, is added to the basis of the property represented by the 
improvements in the hands of A. As to treatment of such property for the 
purposes of capital gains and losses, see subchapter P (section 1201 and 
following), chapter 1 of the Code.



Sec.  1.1020-1  Election as to amounts allowed in respect of depreciation, 
etc., before 1952.

    (a) In general. (1) Any person may elect to have the adjustments to 
the cost or other basis of property under section 1016(a)(2) determined 
in accordance with subparagraph (B) of such section by filing a 
statement of election in accordance with the requirements set forth in 
paragraph (b) of this section. Any election made after 1952 shall be 
irrevocable when made. Any election made after 1952 shall apply with 
respect to all property held by the person making the election at any 
time on or before December 31, 1952, and shall apply to all periods 
since February 28, 1913, and before January 1, 1952, during which such 
person held such property or for which adjustments must be made under 
section 1016(b). For rules with respect to an election made on or before 
December 31, 1952, see paragraph (c) of this section.
    (2) An election by a partner on his own behalf is not an election 
for the partnership of which he is a member. A separate election must be 
made on behalf of the partnership. (See section 703(b) (relating to 
elections of the partnership).) An election on behalf of the partnership 
applies only with respect to the partnership, and does not apply to the 
separate property of the partners. A similar rule applies with respect 
to elections by trusts and beneficiaries of trusts. These rules also 
apply with respect to a revocation of an election where such election 
was made on or before December 31, 1952.
    (b) Rules applicable to making of election. The following rules are 
applicable to the making of an election under section 1020:
    (1) Form of election. The election shall be in the form of a 
statement in writing, shall state the name and address of the taxpayer 
making the election, and shall contain a statement that such taxpayer 
elects to have the provisions of section 1016(a)(2)(B) apply in respect 
of all periods since February 28, 1913, and before January 1, 1952.
    (2) Signature. The statement shall be signed by the taxpayer making 
the election, if an individual, or, if the taxpayer making the election 
is not an individual, the statement shall be signed by the person or 
persons required to sign the income return of such taxpayer.
    (3) Filing. The statement must be filed on or before December 31, 
1954, in the office of the district director for the internal revenue 
district in which the income tax return for the year of the election is 
required to be filed. For rules as to when timely mailing will be 
treated as timely filing of the statement see section 7502.
    (4) Filing of duplicate. A copy of the statement of election must be 
filed with the first return, amended return, or claim for refund filed 
on or after the date on which the election is made.
    (c) Election made on or before December 31, 1952. An election made 
on or before December 31, 1952, in accordance with the provisions of 
section 113(d) of the Internal Revenue Code of 1939, may be revoked by 
filing on or before December 31, 1954, in the same office in which the 
election was filed, a statement of revocation signed in the same manner 
as the election. Such statement made by any person is irrevocable when 
made with respect to such person, and

[[Page 96]]

no new election may thereafter be made by such person. A copy of the 
revocation must be filed with the first return, amended return, or claim 
for refund, filed after the date of the revocation. For additional rules 
with respect to election made on or before December 31, 1952, see 26 CFR 
(1939) 39.113(b)(1)-1 (Regulations 118).
    (d) Validity of elections or revocation of elections. An election or 
revocation of an election which conforms in substance to the provisions 
of this section will not be deemed invalid solely because it was filed 
before the date on which the regulations in this section were 
promulgated.
    (e) Effect of election. For rules relating to the effect of an 
election under this section, see section 1016(a)(2) and the regulations 
thereunder.



Sec.  1.1021-1  Sale of annuities.

    In the case of a transfer for value of an annuity contract to which 
section 72(g) and paragraph (a) of Sec.  1.72-10 apply, the transferor 
shall adjust his basis in such contract as of the time immediately prior 
to such transfer by subtracting from the premiums or other consideration 
he has paid or is deemed to have paid for such contract all amounts he 
has received or is deemed to have received under such annuity contract 
to the extent that such amounts were not includible in the gross income 
of the transferor or other recipient under the applicable income tax 
law. In any case where the amounts which were not includible in the 
gross income of the recipient were received or deemed to have been 
received by such transferor exceed the amounts paid or deemed paid by 
him, the adjusted basis of the contract shall be zero. The income 
realized by the transferor on such a transfer shall not exceed the total 
of the amounts received as consideration for the transfer.

                       Common Nontaxable Exchanges



Sec.  1.1031-0  Table of contents.

    This section lists the captions that appear in the regulations under 
section 1031.

    Sec.  1.1031(a)-1 Property held for productive use in a trade or 
                       business or for investment.

    (a) In general.
    (b) Definition of ``like kind.''
    (c) Examples of exchanges of property of a ``like kind.''
    (d) Examples of exchanges not solely in kind.
    (e) Applicability dates.

 Sec.  1.1031(a)-2 Additional rules for exchanges of personal property.

    (a) Introduction.
    (b) Depreciable tangible personal property.
    (c) Intangible personal property and nondepreciable personal 
property.

             Sec.  1.1031(a)-3 Definition of real property.

    (a) Real property.
    (b) Examples.
    (c) Applicability date.

    Sec.  1.1031(b)-1 Receipt of other property or money in tax-free 
                                exchange.

       Sec.  1.1031(b)-2 Safe harbor for qualified intermediaries.

                Sec.  1.1031(c)-1 Nonrecognition of loss.

      Sec.  1.1031(d)-1 Property acquired upon a tax-free exchange.

   Sec.  1.1031(d)-1T Coordination of section 1060 with section 1031 
                              (temporary).

        Sec.  1.1031(d)-2 Treatment of assumption of liabilities.

      Sec.  1.1031(e)-1 Exchanges of livestock of different sexes.

           Sec.  1.1031(j)-1 Exchanges of multiple properties.

    (a) Introduction.
    (b) Computation of gain recognized.
    (c) Computation of basis of properties received.
    (d) Examples.
    (e) Effective date.

           Sec.  1.1031(K)-1 Treatment of deferred exchanges.

    (a) Overview.
    (b) Identification and receipt requirements.
    (c) Identification of replacement property before the end of the 
identification period.
    (d) Receipt of identified replacement property.
    (e) Special rules for identification and receipt of replacement 
property to be produced.
    (f) Receipt of money or other property.
    (g) Safe harbors.
    (h) Interest and growth factors.
    (i) [Reserved]

[[Page 97]]

    (j) Determination of gain or loss recognized and the basis of 
property received in a deferred exchange.
    (k) Definition of disqualified person.
    (l) [Reserved]
    (m) Definition of fair market value.
    (n) No inference with respect to actual or constructive receipt 
rules outside of section 1031.
    (o) Effective date.

[T.D. 8346, 56 FR 19937, May 1, 1991, as amended by T.D. 9935, 85 FR 
77378, Dec. 2, 2020]



Sec.  1.1031(a)-1  Property held for productive use in trade or business 
or for investment.

    (a) In general--(1) Exchanges of property solely for property of a 
like kind. Section 1031(a)(1) provides an exception from the general 
rule requiring the recognition of gain or loss upon the sale or exchange 
of property. Under section 1031(a)(1), no gain or loss is recognized if 
property held for productive use in a trade or business or for 
investment is exchanged solely for property of a like kind to be held 
either for productive use in a trade or business or for investment. 
Under section 1031(a)(1), property held for productive use in a trade or 
business may be exchanged for property held for investment. Similarly, 
under section 1031(a)(1), property held for investment may be exchanged 
for property held for productive use in a trade or business. However, 
section 1031(a)(2) provides that section 1031(a)(1) does not apply to 
any exchange of--
    (i) Stock in trade or other property held primarily for sale;
    (ii) Stocks, bonds, or notes;
    (iii) Other securities or evidences of indebtedness or interest;
    (iv) Interests in a partnership;
    (v) Certificates of trust or beneficial interests; or
    (vi) Choses in action.

Section 1031(a)(1) does not apply to any exchange of interests in a 
partnership regardless of whether the interests exchanged are general or 
limited partnership interests or are interests in the same partnership 
or in different partnerships. An interest in a partnership that has in 
effect a valid election under section 761(a) to be excluded from the 
application of all of subchapter K is treated as an interest in each of 
the assets of the partnership and not as an interest in a partnership 
for purposes of section 1031(a)(2)(D) and paragraph (a)(1)(iv) of this 
section. An exchange of an interest in such a partnership does not 
qualify for nonrecognition of gain or loss under section 1031 with 
respect to any asset of the partnership that is described in section 
1031(a)(2) or to the extent the exchange of assets of the partnership 
does not otherwise satisfy the requirements of section 1031(a).
    (2) Exchanges of property not solely for property of a like kind. A 
transfer is not within the provisions of section 1031(a) if, as part of 
the consideration, the taxpayer receives money or property which does 
not meet the requirements of section 1031(a), but the transfer, if 
otherwise qualified, will be within the provisions of either section 
1031 (b) or (c). Similarly, a transfer is not within the provisions of 
section 1031(a) if, as part of the consideration, the other party to the 
exchange assumes a liability of the taxpayer (or acquires property from 
the taxpayer that is subject to a liability), but the transfer, if 
otherwise qualified, will be within the provisions of either section 
1031 (b) or (c). A transfer of property meeting the requirements of 
section 1031(a) may be within the provisions of section 1031(a) even 
though the taxpayer transfers in addition property not meeting the 
requirements of section 1031(a) or money. However, the nonrecognition 
treatment provided by section 1031(a) does not apply to the property 
transferred which does not meet the requirements of section 1031(a).
    (3) Exchanges after 2017. Pursuant to section 13303 of Public Law 
115-97 (131 Stat. 2054), for exchanges beginning after December 31, 
2017, section 1031 and Sec. Sec.  1.1031(a)-1, 1.1031(b)-2, 1.1031(d)-
1T, 1.1031(d)-2, 1.1031(j)-1, 1.1031(k)-1, and references to section 
1031 in Sec. Sec.  1.1031(b)-1, 1.1031(c)-1, and 1.1031(d)-1, apply only 
to qualifying exchanges of real property (within the meaning of Sec.  
1.1031(a)-3) that is held for productive use in a trade or business, or 
for investment, and that is not held primarily for sale.
    (b) Definition of ``like kind.'' As used in section 1031(a), the 
words like kind have reference to the nature or character of the 
property and not to its grade or quality. One kind or class of

[[Page 98]]

property may not, under that section, be exchanged for property of a 
different kind or class. The fact that any real estate involved is 
improved or unimproved is not material, for that fact relates only to 
the grade or quality of the property and not to its kind or class. 
Unproductive real estate held by one other than a dealer for future use 
or future realization of the increment in value is held for investment 
and not primarily for sale. For additional rules for exchanges of 
personal property, see Sec.  1.1031 (a)-2.
    (c) Examples of exchanges of property of a ``like kind.'' No gain or 
loss is recognized if (1) a taxpayer exchanges property held for 
productive use in his trade or business, together with cash, for other 
property of like kind for the same use, such as a truck for a new truck 
or a passenger automobile for a new passenger automobile to be used for 
a like purpose; or (2) a taxpayer who is not a dealer in real estate 
exchanges city real estate for a ranch or farm, or exchanges a leasehold 
of a fee with 30 years or more to run for real estate, or exchanges 
improved real estate for unimproved real estate; or (3) a taxpayer 
exchanges investment property and cash for investment property of a like 
kind.
    (d) Examples of exchanges not solely in kind. Gain or loss is 
recognized if, for instance, a taxpayer exchanges (1) Treasury bonds 
maturing March 15, 1958, for Treasury bonds maturing December 15, 1968, 
unless section 1037(a) (or so much of section 1031 as relates to section 
1037(a)) applies to such exchange, or (2) a real estate mortgage for 
consolidated farm loan bonds.
    (e) Applicability dates--(1) Exchanges of partnership interests. The 
provisions of paragraph (a)(1) of this section relating to exchanges of 
partnership interests apply to transfers of property made by taxpayers 
on or after April 25, 1991.
    (2) Exchanges after 2017. The provisions of paragraph (a)(3) of this 
section apply to exchanges beginning after December 2, 2020.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6935, 32 FR 
15822, Nov. 17, 1967; T.D. 8343, 56 FR 14854, Apr. 12, 1991; T.D. 8346, 
56 FR 19937, May 1, 1991; T.D. 9935, 85 FR 77378, Dec. 2, 2020]



Sec.  1.1031(a)-2  Additional rules for exchanges of personal property.

    (a) Introduction. Section 1.1031(a)-1(b) provides that the 
nonrecognition rules of section 1031 do not apply to an exchange of one 
kind or class of property for property of a different kind or class. 
This section contains additional rules for determining whether personal 
property has been exchanged for property of a like kind or like class. 
Personal properties of a like class are considered to be of a ``like 
kind'' for purposes of section 1031. In addition, an exchange of 
properties of a like kind may qualify under section 1031 regardless of 
whether the properties are also of a like class. In determining whether 
exchanged properties are of a like kind, no inference is to be drawn 
from the fact that the properties are not of a like class. Under 
paragraph (b) of this section, depreciable tangible personal properties 
are of a like class if they are either within the same General Asset 
Class (as defined in paragraph (b)(2) of this section) or within the 
same Product Class (as defined in paragraph (b)(3) of this section). 
Paragraph (c) of this section provides rules for exchanges of intangible 
personal property and nondepreciable personal property.
    (b) Depreciable tangible personal property--(1) General rule. 
Depreciable tangible personal property is exchanged for property of a 
``like kind'' under section 1031 if the property is exchanged for 
property of a like kind or like class. Depreciable tangible personal 
property is of a like class to other depreciable tangible personal 
property if the exchanged properties are either within the same General 
Asset Class or within the same Product Class. A single property may not 
be classified within more than one General Asset Class or within more 
than one Product Class. In addition, property classified within any 
General Asset Class may not be classified within a Product Class. A 
property's General Asset Class or Product Class is determined as of the 
date of the exchange.
    (2) General Asset Classes. Except as provided in paragraphs (b)(4) 
and (b)(5) of this section, property within a General Asset Class 
consists of depreciable tangible personal property described in one of 
asset classes 00.11 through 00.28

[[Page 99]]

and 00.4 of Rev. Proc. 87-56, 1987-2 C.B. 674. These General Asset 
Classes describe types of depreciable tangible personal property that 
frequently are used in many businesses. The General Asset Classes are as 
follows:
    (i) Office furniture, fixtures, and equipment (asset class 00.11),
    (ii) Information systems (computers and peripheral equipment) (asset 
class 00.12),
    (iii) Data handling equipment, except computers (asset class 00.13),
    (iv) Airplanes (airframes and engines), except those used in 
commercial or contract carrying of passengers or freight, and all 
helicopters (airframes and engines) (asset class 00.21),
    (v) Automobiles, taxis (asset class 00.22),
    (vi) Buses (asset class 00.23),
    (vii) Light general purpose trucks (asset class 00.241),
    (viii) Heavy general purpose trucks (asset class 00.242),
    (ix) Railroad cars and locomotives, except those owned by railroad 
transportation companies (asset class 00.25),
    (x) Tractor units for use over-the-road (asset class 00.26),
    (xi) Trailers and trailer-mounted containers (asset class 00.27),
    (xii) Vessels, barges, tugs, and similar water-transportation 
equipment, except those used in marine construction (asset class 00.28), 
and
    (xiii) Industrial steam and electric generation and/or distribution 
systems (asset class 00.4).
    (3) Product classes. Except as provided in paragraphs (b)(4) and (5) 
of this section, or as provided by the Commissioner in published 
guidance of general applicability, property within a product class 
consists of depreciable tangible personal property that is described in 
a 6-digit product class within Sectors 31, 32, and 33 (pertaining to 
manufacturing industries) of the North American Industry Classification 
System (NAICS), set forth in Executive Office of the President, Office 
of Management and Budget, North American Industry Classification System, 
United States, 2002 (NAICS Manual), as periodically updated. Copies of 
the NAICS Manual may be obtained from the National Technical Information 
Service, an agency of the U.S. Department of Commerce, and may be 
accessed on the internet. Sectors 31 through 33 of the NAICS Manual 
contain listings of specialized industries for the manufacture of 
described products and equipment. For this purpose, any 6-digit NAICS 
product class with a last digit of 9 (a miscellaneous category) is not a 
product class for purposes of this section. If a property is listed in 
more than one product class, the property is treated as listed in any 
one of those product classes. A property's 6-digit product class is 
referred to as the property's NAICS code.
    (4) Modifications of NAICS product classes. The product classes of 
the NAICS Manual may be updated or otherwise modified from time to time 
as the manual is updated, effective on or after the date of the 
modification. The NAICS Manual generally is modified every five years, 
in years ending in a 2 or 7 (such as 2002, 2007, and 2012). The 
applicability date of the modified NAICS Manual is announced in the 
Federal Register and generally is January 1 of the year the NAICS Manual 
is modified. Taxpayers may rely on these modifications as they become 
effective in structuring exchanges under this section. Taxpayers may 
rely on the previous NAICS Manual for transfers of property made by a 
taxpayer during the one-year period following the effective date of the 
modification. For transfers of property made by a taxpayer on or after 
January 1, 1997, and on or before January 1, 2003, the NAICS Manual of 
1997 may be used for determining product classes of the exchanged 
property.
    (5) Administrative procedures for revising general asset classes and 
product classes. The Commissioner may, through published guidance of 
general applicability, supplement, modify, clarify, or update the 
guidance relating to the classification of properties provided in this 
paragraph (b). (See Sec.  601.601(d)(2) of this chapter.) For example, 
the Commissioner may determine not to follow (in whole or in part) a 
general asset class for purposes of identifying property of like class, 
may determine not to follow (in whole or in part) any modification of 
product classes published in the NAICS Manual, or may determine that 
other properties

[[Page 100]]

not listed within the same or in any product class or general asset 
class nevertheless are of a like class. The Commissioner also may 
determine that two items of property that are listed in separate product 
classes or in product classes with a last digit of 9 are of a like 
class, or that an item of property that has a NAICS code is of a like 
class to an item of property that does not have a NAICS code.
    (6) No inference outside of section 1031. The rules provided in this 
section concerning the use of general asset classes or product classes 
are limited to exchanges under section 1031. No inference is intended 
with respect to the classification of property for other purposes, such 
as depreciation.
    (7) Examples. The application of this paragraph (b) may be 
illustrated by the following examples:

    Example 1. Taxpayer A transfers a personal computer (asset class 
00.12) to B in exchange for a printer (asset class 00.12). With respect 
to A, the properties exchanged are within the same General Asset Class 
and therefore are of a like class.
    Example 2. Taxpayer C transfers an airplane (asset class 00.21) to D 
in exchange for a heavy general purpose truck (asset class 00.242). The 
properties exchanged are not of a like class because they are within 
different General Asset Classes. Because each of the properties is 
within a General Asset Class, the properties may not be classified 
within a Product Class. The airplane and heavy general purpose truck are 
also not of a like kind. Therefore, the exchange does not qualify for 
nonrecognition of gain or loss under section 1031.
    Example 3. Taxpayer E transfers a grader to F in exchange for a 
scraper. Neither property is within any of the general asset classes. 
However, both properties are within the same product class (NAICS code 
333120). The grader and scraper are of a like class and deemed to be of 
a like kind for purposes of section 1031.
    Example 4. Taxpayer G transfers a personal computer (asset class 
00.12), an airplane (asset class 00.21) and a sanding machine (NAICS 
code 333210), to H in exchange for a printer (asset class 00.12), a 
heavy general purpose truck (asset class 00.242) and a lathe (NAICS code 
333210). The personal computer and the printer are of a like class 
because they are within the same general asset class. The sanding 
machine and the lathe are of a like class because they are within the 
same product class (although neither property is within any of the 
general asset classes). The airplane and the heavy general purpose truck 
are neither within the same general asset class nor within the same 
product class, and are not of a like kind.
    (8) Transition rule. Properties within the same product classes 
based on the 4-digit codes contained in Division D of the Executive 
Office of the President, Office of Management and Budget, Standard 
Industrial Classification Manual (1987), will be treated as property of 
a like class for transfers of property made by taxpayers on or before 
May 19, 2005.

    (c) Intangible personal property and nondepreciable personal 
property--(1) General rule. An exchange of intangible personal property 
of nondepreciable personal property qualifies for nonrecognition of gain 
or loss under section 1031 only if the exchanged properties are of a 
like kind. No like classes are provided for these properties. Whether 
intangible personal property is of a like kind to other intangible 
personal property generally depends on the nature or character of the 
rights involved (e.g., a patent or a copyright) and also on the nature 
or character of the underlying property to which the intangible personal 
property relates.
    (2) Goodwill and going concern value. The goodwill or going concern 
value of a business is not of a like kind to the goodwill or going 
concern value of another business.
    (3) Examples. The application of this paragraph (c) may be 
illustrated by the following examples:

    Example 1. Taxpayer K exchanges a copyright on a novel for a 
copyright on a different novel. The properties exchanged are of a like 
kind.
    Example 2. Taxpayer J exchanges a copyright on a novel for a 
copyright on a song. The properties exchanged are not of a like kind.

    (d) Effective date. Except as otherwise provided in this paragraph 
(d), this section applies to exchanges occurring on or after April 11, 
1991. Paragraphs (b)(3) through (b)(6), Example 3 and Example 4 of 
paragraph (b)(7), and paragraph (b)(8) of this section apply to 
transfers of property made by taxpayers on or after August 12, 2004. 
However, taxpayers may apply paragraphs (b)(3) through (b)(6), and 
Example 3 and Example 4 of paragraph (b)(7) of this section to

[[Page 101]]

transfers of property made by taxpayers on or after January 1, 1997, in 
taxable years for which the period of limitation for filing a claim for 
refund or credit under section 6511 has not expired.

[T.D. 8343, 56 FR 14854, Apr. 12, 1991, as amended by T.D. 9151, 69 FR 
50068, Aug. 13, 2004; T.D. 9202, 70 FR 28819, May 19, 2005]



Sec.  1.1031(a)-3  Definition of real property.

    (a) Real property--(1) In general. The term real property under 
section 1031 and Sec. Sec.  1.1031(a)-1 through 1.1031(k)-1 means land 
and improvements to land, unsevered natural products of land, and water 
and air space superjacent to land. Under paragraph (a)(5) of this 
section, an intangible interest in real property of a type described in 
this paragraph (a)(1) is real property for purposes of section 1031 and 
this section. Property that is real property under State or local law as 
provided in paragraph (a)(6) of this section is real property for 
purposes of section 1031 and this section.
    (2) Improvements to land--(i) In general. The term improvements to 
land means inherently permanent structures and the structural components 
of inherently permanent structures.
    (ii) Inherently permanent structures--(A) In general. The term 
inherently permanent structure means any building or other structure 
that is a distinct asset within the meaning of paragraph (a)(4) of this 
section and is permanently affixed to real property and that will 
ordinarily remain affixed for an indefinite period of time. Affixation 
is considered permanent if it is reasonably expected to last 
indefinitely based on all the facts and circumstances.
    (B) Building. A building is any structure or edifice enclosing a 
space within its walls, and covered by a roof, the purpose of which is, 
for example, to provide shelter or housing, or to provide working, 
office, parking, display, or sales space. Buildings include the 
following distinct assets if permanently affixed: Houses, apartments, 
hotels, motels, enclosed stadiums and arenas, enclosed shopping malls, 
factories and office buildings, warehouses, barns, enclosed garages, 
enclosed transportation stations and terminals, and stores.
    (C) Other inherently permanent structures. Inherently permanent 
structures under paragraph (a)(2)(ii) of this section include the 
following distinct assets, if permanently affixed: In-ground swimming 
pools; roads; bridges; tunnels; paved parking areas, parking facilities, 
and other pavements; special foundations; stationary wharves and docks; 
fences; inherently permanent advertising displays for which an election 
under section 1033(g)(3) is in effect; inherently permanent outdoor 
lighting facilities; railroad tracks and signals; telephone poles; power 
generation and transmission facilities; permanently installed 
telecommunications cables; microwave transmission, cell, broadcasting, 
and electric transmission towers; oil and gas pipelines; offshore 
platforms, derricks, oil and gas storage tanks; and grain storage bins 
and silos. Affixation to real property may be accomplished by weight 
alone. If property is not listed as an inherently permanent structure in 
paragraph (a)(2)(ii)(B) or (C) of this section, the determination of 
whether the property is an inherently permanent structure under 
paragraph (a)(2)(ii) of this section is based on the following factors--
    (1) The manner in which the distinct asset is affixed to real 
property;
    (2) Whether the distinct asset is designed to be removed or to 
remain in place;
    (3) The damage that removal of the distinct asset would cause to the 
item itself or to the real property to which it is affixed;
    (4) Any circumstances that suggest the expected period of affixation 
is not indefinite; and
    (5) The time and expense required to move the distinct asset.
    (iii) Structural components--(A) In general. The term structural 
component means any distinct asset, within the meaning of paragraph 
(a)(4) of this section, that is a constituent part of, and integrated 
into, an inherently permanent structure. If interconnected assets work 
together to serve an inherently permanent structure (for example, 
systems that provide a building with electricity, heat, or water), the 
assets are analyzed together as one distinct asset

[[Page 102]]

that may be a structural component. A structural component may qualify 
as real property only if the taxpayer holds its interest in the 
structural component together with a real property interest in the space 
in the inherently permanent structure served by the structural 
component. If a distinct asset is customized, the customization does not 
affect whether the distinct asset is a structural component. Tenant 
improvements to a building that are inherently permanent or otherwise 
classified as real property within the meaning of this paragraph 
(a)(2)(iii) are real property under this section. However, property 
produced for sale, such as bricks, nails, paint, and windowpanes, that 
is not real property in the hands of the producing taxpayer or a related 
person, as defined in section 1031(f)(3), but that may be incorporated 
into real property by an unrelated buyer, is not treated as real 
property by the producing taxpayer.
    (B) Examples of structural components. Structural components include 
the following items, provided the item is a constituent part of, and 
integrated into, an inherently permanent structure: Walls; partitions; 
doors; wiring; plumbing systems; central air conditioning and heating 
systems; pipes and ducts; elevators and escalators; floors; ceilings; 
permanent coverings of walls, floors, and ceilings; insulation; 
chimneys; fire suppression systems, including sprinkler systems and fire 
alarms; fire escapes; security systems; humidity control systems; and 
other similar property. If a component of a building or inherently 
permanent structure is a distinct asset and is not listed as a 
structural component in this paragraph (a)(2)(iii)(B), the determination 
of whether the component is a structural component under this paragraph 
(a)(2)(iii) is based on the following factors--
    (1) The manner, time, and expense of installing and removing the 
component;
    (2) Whether the component is designed to be moved;
    (3) The damage that removal of the component would cause to the item 
itself or to the inherently permanent structure to which it is affixed; 
and
    (4) Whether the component is installed during construction of the 
inherently permanent structure.
    (3) Unsevered natural products of land. Unsevered natural products 
of land, including growing crops, plants, and timber; mines; wells; and 
other natural deposits, generally are treated as real property for 
purposes of this section. Natural products and deposits, such as crops, 
timber, water, ores, and minerals, cease to be real property when they 
are severed, extracted, or removed from the land.
    (4) Distinct asset--(i) In general. For this section, a distinct 
asset is analyzed separately from any other assets to which the asset 
relates to determine if the asset is real property, whether as land, an 
inherently permanent structure, or a structural component of an 
inherently permanent structure. Buildings and other inherently permanent 
structures are distinct assets. Assets and systems listed as a 
structural component in paragraph (a)(2)(iii)(B) of this section are 
treated as distinct assets.
    (ii) Facts and circumstances. The determination of whether a 
particular separately identifiable item of property is a distinct asset 
is based on all the facts and circumstances. In particular, the 
following factors must be taken into account--
    (A) Whether the item is customarily sold or acquired as a single 
unit rather than as a component part of a larger asset;
    (B) Whether the item can be separated from a larger asset, and if 
so, the cost of separating the item from the larger asset;
    (C) Whether the item is commonly viewed as serving a useful function 
independent of a larger asset of which it is a part; and
    (D) Whether separating the item from a larger asset of which it is a 
part impairs the functionality of the larger asset.
    (5) Intangible assets--(i) In general. Intangible assets that are 
real property for purposes of section 1031 and this section include the 
following items: Fee ownership; co-ownership; a leasehold; an option to 
acquire real property; an easement; stock in a cooperative housing 
corporation; shares in a

[[Page 103]]

mutual ditch, reservoir, or irrigation company described in section 
501(c)(12)(A) of the Code if, at the time of the exchange, such shares 
have been recognized by the highest court of the State in which the 
company was organized, or by a State statute, as constituting or 
representing real property or an interest in real property; and land 
development rights. Similar interests are real property for purposes of 
section 1031 and this section if the intangible asset derives its value 
from real property or an interest in real property and is inseparable 
from that real property or interest in real property. The following 
intangible assets are not real property for purposes of section 1031 and 
this section, regardless of the classification of such property under 
State or local law--
    (A) Stock not described in paragraph (a)(5)(i) of this section, 
bonds, or notes;
    (B) Other securities or evidences of indebtedness or interest;
    (C) Interests in a partnership (other than an interest in a 
partnership that has in effect a valid election under section 761(a) to 
be excluded from the application of all of subchapter K);
    (D) Certificates of trust or beneficial interests; and
    (E) Choses in action.
    (ii) Licenses and permits. A license, permit, or other similar right 
that is solely for the use, enjoyment, or occupation of land or an 
inherently permanent structure and that is in the nature of a leasehold, 
easement, or other similar right, generally is an interest in real 
property under this section. However, a license or permit to engage in 
or operate a business on real property is not real property or an 
interest in real property, regardless of its classification under State 
or local law.
    (6) State or local law. Except as otherwise provided in paragraph 
(a)(5) of this section, property is real property within the meaning of 
paragraph (a)(1) of this section under State or local law if, on the 
date it is transferred in an exchange, the property is real property 
under the law of the State or local jurisdiction in which that property 
is located.
    (7) No inference outside of section 1031. The rules provided in this 
section concerning the definition of real property apply only for 
purposes of section 1031. No inference is intended with respect to the 
classification or characterization of property for other purposes of the 
Code, such as depreciation and sections 1245 and 1250. For example, a 
structure or a portion of a structure may be section 1245 property for 
depreciation purposes and for determining gain under section 1245, 
notwithstanding that the structure or the portion of the structure is 
real property under this section. Also, a taxpayer transferring 
relinquished property that is section 1245 property in a section 1031 
exchange is subject to the gain recognition rules under section 1245 and 
the regulations under section 1245, notwithstanding that the 
relinquished property or replacement property is real property under 
this section. In addition, the taxpayer must follow the rules of section 
1245 and the regulations under section 1245, and section 1250 and the 
regulations under section 1250, based on the determination of the 
relinquished property and replacement property being, in whole or in 
part, section 1245 property or section 1250 property under those Code 
sections and not under this section.
    (b) Examples. The following examples illustrate the provisions of 
this section. In each example, unless otherwise provided, the State or 
local law of the applicable jurisdiction in which the property at issue 
is located does not address whether the property is real property.
    (1) Example 1: Natural products of land. A owns land with perennial 
fruit-bearing plants that A harvests annually. The unsevered plants are 
natural products of the land within the meaning of paragraph (a)(3) of 
this section and thus are real property for purposes of section 1031. A 
annually harvests fruit from the plants. Upon severance from the land, 
the harvested fruit ceases to be part of the land and therefore is not 
real property. Storage of the harvested fruit upon or within real 
property does not cause the harvested fruit to be real property.
    (2) Example 2: Water space superjacent to land. B owns a marina 
comprised of U-shaped boat slips and end ties. The U-shaped boat slips 
are spaces on the water that are surrounded by a dock on

[[Page 104]]

three sides. The end ties are spaces on the water at the end of a slip 
or on a long, straight dock. B rents the boat slips and end ties to boat 
owners. The boat slips and end ties are water space superjacent to land 
and thus are real property within the meaning of paragraph (a)(1) of 
this section.
    (3) Example 3: Indoor sculpture. (i) C owns an office building and a 
large sculpture in the atrium of the building. The sculpture measures 30 
feet tall by 18 feet wide and weighs five tons. The building was 
specifically designed to support the sculpture, which is permanently 
affixed to the building by supports embedded in the building's 
foundation. The sculpture was constructed within the building. Removal 
would be costly and time consuming and would destroy the sculpture. The 
sculpture is reasonably expected to remain in the building indefinitely.
    (ii) The sculpture is not an inherently permanent structure listed 
in paragraph (a)(2)(ii)(C) of this section, and, therefore, C must use 
the factors provided in paragraphs (a)(2)(ii)(C)(1) through (5) of this 
section to determine whether the sculpture is an inherently permanent 
structure. The sculpture--
    (A) Is permanently affixed to the building by supports embedded in 
the building's foundation;
    (B) Is not designed to be removed and is designed to remain in place 
indefinitely;
    (C) Would be damaged if removed and would damage the building to 
which it is affixed;
    (D) Is expected to remain in the building indefinitely; and
    (E) Would require significant time and expense to move.
    (iii) The factors described in paragraphs (a)(2)(ii)(C)(1) through 
(5) of this section all support the conclusion that the sculpture is an 
inherently permanent structure within the meaning of paragraph 
(a)(2)(ii)(A) of this section. Therefore, the sculpture is real 
property.
    (4) Example 4: Bus shelters. (i) D owns 400 bus shelters, each of 
which consists of four posts, a roof, and panels enclosing two or three 
sides. D enters into a long-term lease with a local transit authority 
for use of the bus shelters. Each bus shelter is prefabricated from 
steel and is bolted to the sidewalk. Bus shelters are disassembled and 
moved when bus routes change. Moving a bus shelter takes less than a day 
and does not significantly damage either the bus shelter or the real 
property to which it was affixed.
    (ii) The bus shelters are not permanently affixed enclosed 
transportation stations or terminals, are not buildings under paragraph 
(a)(2)(ii)(B) of this section, nor are they listed as types of other 
inherently permanent structures in paragraph (a)(2)(ii)(C) of this 
section. Therefore, the bus shelters must be analyzed to determine 
whether they are inherently permanent structures using the factors 
provided in paragraphs (a)(2)(ii)(C)(1) through (5) of this section. The 
bus shelters--
    (A) Are not permanently affixed to the land or an inherently 
permanent structure;
    (B) Are designed to be removed and not remain in place indefinitely;
    (C) Would not be damaged if removed and would not damage the 
sidewalks to which they are affixed;
    (D) Will not remain affixed indefinitely; and
    (E) Would not require significant time and expense to move.
    (iii) The factors described in paragraphs (a)(2)(ii)(C)(1) through 
(5) of this section all support the conclusion that the bus shelters are 
not inherently permanent structures within the meaning of paragraph 
(a)(2)(ii) of this section. Thus, the bus shelters are not inherently 
permanent structures within the meaning of paragraph (a)(2)(ii) of this 
section and, therefore, are not real property.
    (5) Example 5: Industrial 3D printer and generator. (i) E owns a 
building that it uses in its trade or business of manufacturing airplane 
parts. The building includes an industrial 3D printer that can print 
airplane wings and an electrical generator that serves the building and 
the 3D printer in a backup capacity. The 3D printer weighs 12 tons, is 
designed to remain in place indefinitely once installed in the building, 
and its removal would be time-consuming and very costly, and would cause 
significant damage to the building. The 3D printer was installed during 
the building's construction. The

[[Page 105]]

generator also was installed during construction and is designed to 
remain in place indefinitely once installed. Although costly and time-
consuming to remove, removal of the generator will not result in 
substantial damage to the generator or the building.
    (ii) The 3D printer is not listed as an example of a structural 
component under paragraph (a)(2)(iii)(B) of this section. Therefore, the 
3D printer must be analyzed to determine whether it is a structural 
component using the factors provided in paragraphs (a)(2)(iii)(B)(1) 
through (4) of this section. The 3D printer--
    (A) Is time-consuming and costly to move;
    (B) Is not designed to be moved;
    (C) If removed, would cause significant damage to the building in 
which it is located; and
    (D) Was installed during construction of the building.
    (iii) The factors described in paragraphs (a)(2)(iii)(B)(1) through 
(4) of this section support the conclusion that the 3D printer is a 
structural component of E's building and real property under this 
section. Thus, the 3D printer is real property.
    (iv) The electrical generator also is not listed as an example of a 
structural component under paragraph (a)(2)(iii)(B) of this section and 
must be analyzed to determine whether it is a structural component using 
the factors provided in paragraphs (a)(2)(iii)(B)(1) through (4) of this 
section. The generator--
    (A) Is time-consuming and costly to move;
    (B) Is not designed to be moved;
    (C) If removed, would not result in significant damage to the 
generator or the building in which it is located; and
    (D) Was installed during construction of the building.
    (v) The factors described in paragraphs (a)(2)(iii)(B)(1) through 
(4) of this section, considered in the aggregate, support the conclusion 
that the generator is a structural component of E's building. Although 
the generator's removal would not result in significant damage to the 
generator or to E's building, that factor does not outweigh the factors 
supporting the conclusion that it is a structural component. 
Consequently, the generator is a structural component of E's building 
and real property under this section.
    (6) Example 6: Raised flooring for industrial 3D printer. (i) The 
facts are the same as in paragraph (b)(5), Example 5, except that E, 
when installing its 3D printer, also installed a raised flooring system 
for the purpose of facilitating the operation of the 3D printer. The 
raised flooring system is not designed or constructed to remain 
permanently in place. Rather, the raised flooring system can be removed, 
without any substantial damage to the system itself or to the building, 
and then reused. The raised flooring was installed during the building's 
construction.
    (ii) Although floors are listed as an example of a structural 
component under paragraph (a)(2)(iii)(B) of this section, the raised 
flooring system installed to facilitate the operation of E's 3D printer 
is not a constituent part of, and integrated into, an inherently 
permanent structure as required by paragraph (a)(2)(iii)(A) of this 
section and, therefore, is not flooring as listed in paragraph 
(a)(2)(iii)(B) of this section. Thus, the raised flooring must be 
analyzed to determine whether it is a structural component of E's 
building (within the meaning of paragraph (a)(2)(iii) of this section) 
using the factors provided in paragraphs (a)(2)(iii)(B)(1) through (4) 
of this section. The raised flooring--
    (A) Is installed and removed quickly and with little expense;
    (B) Is designed to be moved and is not designed specifically for the 
particular building of which it is a part;
    (C) Is not damaged, and the building is not damaged, upon its 
removal; and
    (D) Was installed during construction of the building.
    (iii) The factors described in paragraphs (a)(2)(iii)(B)(1) through 
(4) of this section, considered in the aggregate, support the conclusion 
that the raised flooring is not a structural component of E's building 
within the meaning of paragraph (a)(2)(iii) of this section. Although 
the raised flooring was installed during construction of

[[Page 106]]

the building, that factor does not outweigh the factors supporting the 
conclusion that the flooring is not a structural component. Therefore, 
the raised flooring is not real property.
    (7) Example 7: Steam turbine. (i) F owns a building with a large 
steam turbine attached as a fixture to the building. The steam turbine 
is a component of a system used for the commercial production of 
electricity for sale to customers in the ordinary course of F's business 
as an electric utility. The steam turbine also generates electricity for 
F's building. The steam turbine takes up a substantial portion of the 
building and is designed to remain in place indefinitely once installed 
in F's building. The steam turbine was installed during the construction 
of the building and its removal would be costly and cause damage to the 
building.
    (ii) The steam turbine is not listed as an example of a structural 
component under paragraph (a)(2)(iii)(B) of this section and must be 
analyzed to determine whether it is a structural component using the 
factors provided in paragraphs (a)(2)(iii)(B)(1) through (4) of this 
section. The steam turbine--
    (A) Is costly to remove from the building in which it is located;
    (B) Is not designed to be moved;
    (C) If removed, would cause damage to the building; and
    (D) Was installed during construction of the building.
    (iii) The factors described in paragraphs (a)(2)(iii)(B)(1) through 
(4) of this section support the conclusion that the steam turbine is a 
structural component of F's building and real property under this 
section. Thus, the steam turbine is real property.
    (8) Example 8: Partitions. (i) G owns an office building that it 
leases to tenants. The building includes partitions owned by G that are 
used to delineate space within the building. The office building has two 
types of interior, non-load-bearing drywall partition systems: A 
conventional drywall partition system (Conventional Partition System) 
and a modular drywall partition system (Modular Partition System). 
Neither the Conventional Partition System nor the Modular Partition 
System was installed during construction of the office building. 
Conventional Partition Systems are comprised of fully integrated gypsum 
board partitions, studs, joint tape, and covering joint compound. 
Modular Partition Systems are comprised of assembled panels, studs, 
tracks, and exposed joints. Both the Conventional Partition System and 
the Modular Partition System reach from the floor to the ceiling. In 
addition, both are distinct assets as described in paragraph (a)(4) of 
this section.
    (ii) Depending on the needs of a new tenant, the Conventional 
Partition System may remain in place when a tenant vacates the premises. 
The Conventional Partition System is integrated into the office building 
and is designed and constructed to remain in areas not subject to 
reconfiguration or expansion. The Conventional Partition System can be 
removed only by demolition, and, once removed, neither the Conventional 
Partition System nor its components can be reused. Removal of the 
Conventional Partition System causes substantial damage to the 
Conventional Partition System itself, but does not cause substantial 
damage to the building.
    (iii) Modular Partition Systems are typically removed when a tenant 
vacates the premises. Modular Partition Systems are not designed or 
constructed to remain permanently in place. Modular Partition Systems 
are designed and constructed to be movable. Each Modular Partition 
System can be readily removed, remains in substantially the same 
condition as before, and can be reused. Removal of a Modular Partition 
System does not cause any substantial damage to the Modular Partition 
System itself or to the building. The Modular Partition System may be 
moved to accommodate the reconfigurations of the interior space within 
the office building for various tenants that occupy the building.
    (iv) The Conventional Partition System is comprised of walls that 
are integrated into an inherently permanent structure and are listed as 
structural components in paragraph (a)(2)(iii)(B) of this section. Thus, 
the Conventional Partition System is real property.
    (v) The Modular Partition System is not integrated into the building 
as required by paragraph (a)(2)(iii)(A) of

[[Page 107]]

this section and, therefore, is not listed in paragraph (a)(2)(iii)(B) 
of this section. Thus, the Modular Partition System must be analyzed to 
determine whether it is a structural component using the factors 
provided in paragraphs (a)(2)(iii)(B)(1) through (4) of this section. 
The Modular Partition System--
    (A) Is installed and removed quickly and with little expense;
    (B) Is designed to be moved and is not designed specifically for the 
particular building of which it is a part;
    (C) Is not damaged, and the building is not damaged, upon its 
removal; and
    (D) Was not installed during construction of the building.
    (vi) The factors described in paragraphs (a)(2)(iii)(B)(1) through 
(4) of this section support the conclusion that the Modular Partition 
System is not a structural component of G's office building within the 
meaning of paragraph (a)(2)(iii) of this section. Therefore, the Modular 
Partition System is not real property.
    (9) Example 9: Pipeline transmission system. (i) H owns a natural 
gas pipeline transmission system that provides a conduit to transport 
natural gas from unrelated third-party producers and gathering 
facilities to unrelated third-party distributors and end users. The 
pipeline transmission system is comprised of underground pipelines, 
isolation valves and vents, pressure control and relief valves, meters, 
and compressors. Each of these distinct assets was installed during 
construction of the pipeline transmission system and each was designed 
to remain permanently in place.
    (ii) The pipelines are permanently affixed and are listed as other 
inherently permanent structures in paragraph (a)(2)(ii)(C) of this 
section. Thus, the pipelines are real property.
    (iii) Isolation valves and vents are placed at regular intervals 
along the pipelines to isolate and evacuate sections of the pipelines in 
case there is need for a shut-down or maintenance of the pipelines. 
Pressure control and relief valves are installed at regular intervals 
along the pipelines to provide overpressure protection. The isolation 
valves and vents and pressure control and relief valves are not listed 
in paragraph (a)(2)(iii)(B) of this section and, therefore, must be 
analyzed to determine whether they are structural components using the 
factors provided in paragraphs (a)(2)(iii)(B)(1) through (4) of this 
section. The isolation valves and vents and pressure control and relief 
valves--
    (A) Are time consuming and expensive to install and remove from the 
pipelines;
    (B) Are designed specifically for the particular pipelines for which 
they are a part;
    (C) Will sustain damage and will damage the pipelines if removed; 
and
    (D) Were installed during construction of the pipelines.
    (iv) The factors in paragraphs (a)(2)(iii)(B)(1) through (4) of this 
section support the conclusion that the isolation valves and vents and 
pressure control and relief valves are structural components of H's 
pipelines within the meaning of paragraph (a)(2)(iii) of this section. 
Therefore, the isolation valves and vents and pressure control and 
relief valves are real property.
    (v) Meters are used to measure the natural gas passing into or out 
of the pipeline transmission system for purposes of determining the end 
users' consumption. Over long distances, pressure is lost due to 
friction in the pipeline transmission system. Compressors are required 
to add pressure to transport natural gas through the entirety of the 
pipeline transmission system. H installed meters and compressors during 
the construction of the pipelines. However, unlike other types of such 
meters and compressors, these particular meters and compressors are not 
time consuming and expensive to install and remove from the pipelines; 
are not designed specifically for the particular pipelines for which 
they are a part; and their removal does not cause damage to the asset or 
the pipelines if removed. Therefore, the meters and compressors 
installed by H are not structural components within the meaning of 
paragraph (a)(2)(iii) of this section and, therefore, are not real 
property.
    (10) Example 10: State or local law determination of property. (i) J 
owns water pipeline in State X that it wants to exchange for cell phone 
towers located in

[[Page 108]]

State Y. On the date that J transfers the water pipeline in an exchange 
for the cell phone towers, the water pipeline is classified as real 
property under the law of State X, the jurisdiction in which the water 
pipeline is located.
    (ii) The water pipeline is real property under paragraphs (a)(1) and 
(a)(6) of this section, regardless of whether the water pipeline is 
listed as an inherently permanent structure or a structural component of 
an inherently permanent structure, or is real property under the factors 
listed in paragraph (a)(2)(ii)(C) or (a)(2)(iii)(B) of this section.
    (iii) Cell phone towers are listed as an inherently permanent 
structure under paragraph (a)(2)(ii)(C) of this section. Thus, the cell 
phone towers that J acquires in the exchange for the water pipeline are 
real property under this section, regardless of the State or local 
characterization of the cell phone towers or whether the cell phone 
towers are real property under the factors in paragraph (a)(2)(ii)(C) or 
(a)(2)(iii)(B) of this section.
    (11) Example 11: Land use permit. K receives a special use permit 
from the government to place a cell tower on Federal Government land 
that abuts a Federal highway. Government regulations provide that the 
permit is not a lease of the land, but is a permit to use the land for a 
cell tower. Under the permit, the government reserves the right to 
cancel the permit and compensate K if the site is needed for a higher 
public purpose. The permit is in the nature of a leasehold that allows K 
to place a cell tower in a specific location on government land. 
Therefore, the permit is an interest in real property under paragraph 
(a)(5) of this section.
    (12) Example 12: License to operate a business. L owns a building 
and receives a license from State A to operate a casino in the building. 
The license applies only to K's building and cannot be transferred to 
another location. L's building is an inherently permanent structure 
under paragraph (a)(2)(ii)(A) of this section and, therefore, is real 
property. However, L's license to operate a casino is not a right for 
the use, enjoyment, or occupation of L's building, but is rather a 
license to engage in or operate the casino business in the building. 
Therefore, the casino license is not real property or an interest in 
real property under paragraph (a)(5)(ii) of this section.
    (c) Applicability date. This section applies to exchanges beginning 
after December 2, 2020.

[T.D. 9935, 85 FR 77378, Dec. 2, 2020]



Sec.  1.1031(b)-1  Receipt of other property or money in tax-free exchange.

    (a) If the taxpayer receives other property (in addition to property 
permitted to be received without recognition of gain) or money--
    (1) In an exchange described in section 1031(a) of property held for 
investment or productive use in trade or business for property of like 
kind to be held either for productive use or for investment,
    (2) In an exchange described in section 1035(a) of insurance 
policies or annuity contracts,
    (3) In an exchange described in section 1036(a) of common stock for 
common stock, or preferred stock for preferred stock, in the same 
corporation and not in connection with a corporate reorganization, or
    (4) In an exchange described in section 1037(a) of obligations of 
the United States, issued under the Second Liberty Bond Act (31 U.S.C. 
774 (2)), solely for other obligations issued under such Act, the gain, 
if any, to the taxpayer will be recognized under section 1031(b) in an 
amount not in excess of the sum of the money and the fair market value 
of the other property, but the loss, if any, to the taxpayer from such 
an exchange will not be recognized under section 1031(c) to any extent.
    (b) The application of this section may be illustrated by the 
following examples:

    Example 1. A, who is not a dealer in real estate, in 1954 exchanges 
real estate held for investment, which he purchased in 1940 for $5,000, 
for other real estate (to be held for productive use in trade or 
business) which has a fair market value of $6,000, and $2,000 in cash. 
The gain from the transaction is $3,000, but is recognized only to the 
extent of the cash received of $2,000.
    Example 2. (a) B, who uses the cash receipts and disbursements 
method of accounting and the calendar year as his taxable year, has 
never elected under section 454(a) to include

[[Page 109]]

in gross income currently the annual increase in the redemption price of 
non-interest-bearing obligations issued at a discount. In 1943, for $750 
each, B purchased four $1,000 series E U.S. savings bonds bearing an 
issue date of March 1, 1943.
    (b) On October 1, 1963, the redemption value of each such bond was 
$1,396, and the total redemption value of the four bonds was $5,584. On 
that date B submitted the four $1,000 series E bonds to the United 
States in a transaction in which one of such $1,000 bonds was reissued 
by issuing four $100 series E U.S. savings bonds bearing an issue date 
of March 1, 1943, and by considering six $100 series E bonds bearing an 
issue date of March 1, 1943, to have been issued. The redemption value 
of each such $100 series E bond was $139.60 on October 1, 1963. Then, as 
part of the transaction, the six $100 series E bonds so considered to 
have been issued and the three $1,000 series E bonds were exchanged, in 
an exchange qualifying under section 1037(a), for five $1,000 series H 
U.S. savings bonds plus $25.60 in cash.
    (c) The gain realized on the exchange qualifying under section 
1037(a) is $2,325.60, determined as follows:

Amount realized:
  Par value of five series H bonds...........................  $5,000.00
  Cash received..............................................      25.60
                                                   ------------
   Total realized............................................   5,025.60
Less: Adjusted basis of series E bonds surrendered in the
 exchange:
   Three $1,000 series E bonds....................  $2,250.00
   Six $100 series E bonds at $75 each............     450.00
                                                   -----------
                                                    .........   2,700.00
                                                              ----------
    Gain realized.................................  .........   2,325.60
 

    (d) Pursuant to section 1031(b), only $25.60 (the money received) of 
the total gain of $2,325.60 realized on the exchange is recognized at 
the time of exchange and must be included in B's gross income for 1963. 
The $2,300 balance of the gain ($2,325.60 less $25.60) must be included 
in B's gross income for the taxable year in which the series H bonds are 
redeemed or disposed of, or reach final maturity, whichever is earlier, 
as provided in paragraph (c) of Sec.  1.454-1.
    (e) The gain on the four $100 series E bonds, determined by using 
$75 as a basis for each such bond, must be included in B's gross income 
for the taxable year in which such bonds are redeemed or disposed of, or 
reach final maturity, whichever is earlier.
    Example 3. (a) The facts are the same as in example (2), except 
that, as part of the transaction, the $1,000 series E bond is reissued 
by considering ten $100 series E bonds bearing an issue date of March 1, 
1943, to have been issued. Six of the $100 series E bonds so considered 
to have been issued are surrendered to the United States as part of the 
exchange qualifying under section 1037(a) and the other four are 
immediately redeemed.
    (b) Pursuant to section 1031(b), only $25.60 (the money received) of 
the total gain of $2,325.60 realized on the exchange qualifying under 
section 1037(a) is recognized at the time of the exchange and must be 
included in B's gross income for 1963. The $2,300 balance of the gain 
($2,325.60 less $25.60) realized on such exchange must be included in 
B's gross income for the taxable year in which the series H bonds are 
redeemed or disposed of, or reach final maturity, whichever is earlier, 
as provided in paragraph (c) of Sec.  1.454-1.
    (c) The redemption on October 1, 1963, of the four $100 series E 
bonds considered to have been issued at such time results in gain of 
$258.40, which is then recognized and must be included in B's gross 
income for 1963. This gain of $258.40 is the difference between the 
$558.40 redemption value of such bonds on the date of the exchange and 
the $300 (4 x $75) paid for such series E bonds in 1943.
    Example 4. On November 1, 1963, C purchased for $91 a marketable 
U.S. bond which was originally issued at its par value of $100 under the 
Second Liberty Bond Act. On February 1, 1964, in an exchange qualifying 
under section 1037(a), C surrendered the bond to the United States for 
another marketable U.S. bond, which then had a fair market value of $92, 
and $1.85 in cash, $0.85 of which was interest. The $0.85 interest 
received is includible in gross income for the taxable year of the 
exchange, but the $2 gain ($93 less $91) realized on the exchange is 
recognized for such year under section 1031(b) to the extent of $1 (the 
money received). Under section 1031(d), C's basis in the bond received 
in exchange is $91 (his basis of $91 in the bond surrendered, reduced by 
the $1 money received and increased by the $1 gain recognized).

    (c) Consideration received in the form of an assumption of 
liabilities (or a transfer subject to a liability) is to be treated as 
other property or money for the purposes of section 1031(b). Where, on 
an exchange described in section 1031(b), each party to the exchange 
either assumes a liability of the other party or acquires property 
subject to a liability, then, in determining the amount of other 
property or money for purposes of section 1031(b), consideration given 
in the form of an assumption of liabilities (or a receipt of property 
subject to a liability) shall be offset against consideration received 
in the form of an assumption of liabilities

[[Page 110]]

(or a transfer subject to a liability). See Sec.  1.1031(d)-2, examples 
(1) and (2).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6935, 32 FR 
15822, Nov. 17, 1967]



Sec.  1.1031(b)-2  Safe harbor for qualified intermediaries.

    (a) In the case of simultaneous transfers of like-kind properties 
involving a qualified intermediary (as defined in Sec.  1.1031(k)-
1(g)(4)(iii)), the qualified intermediary is not considered the agent of 
the taxpayer for purposes of section 1031(a). In such a case, the 
transfer and receipt of property by the taxpayer is treated as an 
exchange.
    (b) In the case of simultaneous exchanges of like-kind properties 
involving a qualified intermediary (as defined in Sec.  1.1031(k)-
1(g)(4)(iii)), the receipt by the taxpayer of an evidence of 
indebtedness of the transferee of the qualified intermediary is treated 
as the receipt of an evidence of indebtedness of the person acquiring 
property from the taxpayer for purposes of section 453 and Sec.  
15a.453-1(b)(3)(i) of this chapter.
    (c) Paragraph (a) of this section applies to transfers of property 
made by taxpayers on or after June 10, 1991.
    (d) Paragraph (b) of this section applies to transfers of property 
made by taxpayers on or after April 20, 1994. A taxpayer may choose to 
apply paragraph (b) of this section to transfers of property made on or 
after June 10, 1991.

[T.D. 8346, 56 FR 19937, May 1, 1991, as amended by T.D. 8535, 59 FR 
18749, Apr. 20, 1994]



Sec.  1.1031(c)-1  Nonrecognition of loss.

    Section 1031(c) provides that a loss shall not be recognized from an 
exchange of property described in section 1031(a), 1035(a), 1036(a), or 
1037(a) where there is received in the exchange other property or money 
in addition to property permitted to be received without recognition of 
gain or loss. See example (4) of paragraph (a)(3) of Sec.  1.1037-1 for 
an illustration of the application of this section in the case of an 
exchange of U.S. obligations described in section 1037(a).

[T.D. 6935, 32 FR 15822, Nov. 17, 1967]



Sec.  1.1031(d)-1  Property acquired upon a tax-free exchange.

    (a) If, in an exchange of property solely of the type described in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), no 
part of the gain or loss was recognized under the law applicable to the 
year in which the exchange was made, the basis of the property acquired 
is the same as the basis of the property transferred by the taxpayer 
with proper adjustments to the date of the exchange. If additional 
consideration is given by the taxpayer in the exchange, the basis of the 
property acquired shall be the same as the property transferred 
increased by the amount of additional consideration given (see section 
1016 and the regulations thereunder).
    (b) If, in an exchange of properties of the type indicated in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), gain 
to the taxpayer was recognized under the provisions of section 1031(b) 
or a similar provision of a prior revenue law, on account of the receipt 
of money in the transaction, the basis of the property acquired is the 
basis of the property transferred (adjusted to the date of the 
exchange), decreased by the amount of money received and increased by 
the amount of gain recognized on the exchange. The application of this 
paragraph may be illustrated by the following example:

    Example: A, an individual in the moving and storage business, in 
1954 transfers one of his moving trucks with an adjusted basis in his 
hands of $2,500 to B in exchange for a truck (to be used in A's 
business) with a fair market value of $2,400 and $200 in cash. A 
realizes a gain of $100 upon the exchange, all of which is recognized 
under section 1031(b). The basis of the truck acquired by A is 
determined as follows:

Adjusted basis of A's former truck......................          $2,500
Less: Amount of money received..........................             200
                                                         ---------------
   Difference...........................................           2,300
Plus: Amount of gain recognized.........................             100
                                                         ---------------
   Basis of truck acquired by A.........................           2,400
 

    (c) If, upon an exchange of properties of the type described in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), the 
taxpayer received other property (not permitted to be received without 
the recognition of gain)

[[Page 111]]

and gain from the transaction was recognized as required under section 
1031(b), or a similar provision of a prior revenue law, the basis 
(adjusted to the date of the exchange) of the property transferred by 
the taxpayer, decreased by the amount of any money received and 
increased by the amount of gain recognized, must be allocated to and is 
the basis of the properties (other than money) received on the exchange. 
For the purpose of the allocation of the basis of the properties 
received, there must be assigned to such other property an amount 
equivalent to its fair market value at the date of the exchange. The 
application of this paragraph may be illustrated by the following 
example:

    Example: A, who is not a dealer in real estate, in 1954 transfers 
real estate held for investment which he purchased in 1940 for $10,000 
in exchange for other real estate (to be held for investment) which has 
a fair market value of $9,000, an automobile which has a fair market 
value of $2,000, and $1,500 in cash. A realizes a gain of $2,500, all of 
which is recognized under section 1031(b). The basis of the property 
received in exchange is the basis of the real estate A transfers 
($10,000) decreased by the amount of money received ($1,500) and 
increased in the amount of gain that was recognized ($2,500), which 
results in a basis for the property received of $11,000. This basis of 
$11,000 is allocated between the automobile and the real estate received 
by A, the basis of the automobile being its fair market value at the 
date of the exchange, $2,000, and the basis of the real estate received 
being the remainder, $9,000.

    (d) Section 1031(c) and, with respect to section 1031 and section 
1036(a), similar provisions of prior revenue laws provide that no loss 
may be recognized on an exchange of properties of a type described in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), 
although the taxpayer receives other property or money from the 
transaction. However, the basis of the property or properties (other 
than money) received by the taxpayer is the basis (adjusted to the date 
of the exchange) of the property transferred, decreased by the amount of 
money received. This basis must be allocated to the properties received, 
and for this purpose there must be allocated to such other property an 
amount of such basis equivalent to its fair market value at the date of 
the exchange.
    (e) If, upon an exchange of properties of the type described in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), the 
taxpayer also exchanged other property (not permitted to be transferred 
without the recognition of gain or loss) and gain or loss from the 
transaction is recognized under section 1002 or a similar provision of a 
prior revenue law, the basis of the property acquired is the total basis 
of the properties transferred (adjusted to the date of the exchange) 
increased by the amount of gain and decreased by the amount of loss 
recognized on the other property. For purposes of this rule, the 
taxpayer is deemed to have received in exchange for such other property 
an amount equal to its fair market value on the date of the exchange. 
The application of this paragraph may be illustrated by the following 
example:

    Example: A exchanges real estate held for investment plus stock for 
real estate to be held for investment. The real estate transferred has 
an adjusted basis of $10,000 and a fair market value of $11,000. The 
stock transferred has an adjusted basis of $4,000 and a fair market 
value of $2,000. The real estate acquired has a fair market value of 
$13,000. A is deemed to have received a $2,000 portion of the acquired 
real estate in exchange for the stock, since $2,000 is the fair market 
value of the stock at the time of the exchange. A $2,000 loss is 
recognized under section 1002 on the exchange of the stock for real 
estate. No gain or loss is recognized on the exchange of the real estate 
since the property received is of the type permitted to be received 
without recognition of gain or loss. The basis of the real estate 
acquired by A is determined as follows:

Adjusted basis of real estate transferred..........              $10,000
Adjusted basis of stock transferred................                4,000
                                                    --------------------
                                                                  14,000
Less: Loss recognized on transfer of stock.........                2,000
                                                    --------------------
    Basis of real estate acquired upon the exchange               12,000
 


[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6935, 32 FR 
15823, Nov. 17, 1967]

[[Page 112]]



Sec.  1.1031(d)-1T  Coordination of section 1060 with section 1031 (temporary).

    If the properties exchanged under section 1031 are part of a group 
of assets which constitute a trade or business under section 1060, the 
like-kind property and other property or money which are treated as 
transferred in exchange for the like-kind property shall be excluded 
from the allocation rules of section 1060. However, section 1060 shall 
apply to property which is not like-kind property or other property or 
money which is treated as transferred in exchange for the like-kind 
property. For application of the section 1060 allocation rules to 
property which is not part of the like-kind exchange, see Sec.  1.1060-
1(b), (c), and (d) Example 1 in Sec.  1.338-6(b), to which reference is 
made by Sec.  1.1060-1(c)(2).

[T.D. 8215, 53 FR 27044, July 18, 1988, as amended by T.D. 8858, 65 FR 
1237, Jan. 7, 2000; T.D. 8940, 66 FR 9929, Feb. 13, 2001]



Sec.  1.1031(d)-2  Treatment of assumption of liabilities.

    For the purposes of section 1031(d), the amount of any liabilities 
of the taxpayer assumed by the other party to the exchange (or of any 
liabilities to which the property exchanged by the taxpayer is subject) 
is to be treated as money received by the taxpayer upon the exchange, 
whether or not the assumption resulted in a recognition of gain or loss 
to the taxpayer under the law applicable to the year in which the 
exchange was made. The application of this section may be illustrated by 
the following examples:

    Example 1. B, an individual, owns an apartment house which has an 
adjusted basis in his hands of $500,000, but which is subject to a 
mortgage of $150,000. On September 1, 1954, he transfers the apartment 
house to C, receiving in exchange therefor $50,000 in cash and another 
apartment house with a fair market value on that date of $600,000. The 
transfer to C is made subject to the $150,000 mortgage. B realizes a 
gain of $300,000 on the exchange, computed as follows:

Value of property received.................................     $600,000
Cash.......................................................       50,000
Liabilities subject to which old property was transferred..      150,000
                                               --------------
    Total consideration received...........................      800,000
Less: Adjusted basis of property transferred...............      500,000
                                               --------------
    Gain realized..........................................      300,000
                                               ==============
Under section 1031(b), $200,000 of the $300,000 gain is          500,000
 recognized. The basis of the apartment house acquired by B
 upon the exchange is $500,000, computed as follows:
 Adjusted basis of property transferred....................
Less: Amount of money received:
  Cash........................................      $50,000
  Amount of liabilities subject to which            150,000
   property was transferred...................
                                                        ___      200,000
                                                            ------------
    Difference................................  ...........      300,000
Plus: Amount of gain recognized upon the exchange..........      200,000
                                               --------------
    Basis of property acquired upon the exchange...........      500,000
 

    Example 2. (a) D, an individual, owns an apartment house. On 
December 1, 1955, the apartment house owned by D has an adjusted basis 
in his hands of $100,000, a fair market value of $220,000, but is 
subject to a mortgage of $80,000. E, an individual, also owns an 
apartment house. On December 1, 1955, the apartment house owned by E has 
an adjusted basis of $175,000, a fair market value of $250,000, but is 
subject to a mortgage of $150,000. On December 1, 1955, D transfers his 
apartment house to E, receiving in exchange therefore $40,000 in cash 
and the apartment house owned by E. Each apartment house is transferred 
subject to the mortgage on it.
    (b) D realizes a gain of $120,000 on the exchange, computed as 
follows:

Value of property received......................  ..........    $250,000
Cash........................................................      40,000
Liabilities subject to which old property was transferred...      80,000
                                                 -------------
    Total consideration received............................     370,000
Less:
  Adjusted basis of property transferred........    $100,000
  Liabilities to which new property is subject..     150,000
                                                        ____     250,000
                                                             -----------
    Gain realized...............................  ..........     120,000
 


For purposes of section 1031(b), the amount of other property or money 
received by D is $40,000. (Consideration received by D in the form of a 
transfer subject to a liability of $80,000 is offset by consideration 
given in the form of a receipt of property subject to a $150,000 
liability. Thus, only the consideration received in the form of cash, 
$40,000, is treated as other property or money for purposes of section 
1031(b).) Accordingly, under section 1031(b), $40,000 of the $120,000 
gain is recognized. The basis of the apartment house acquired by D is 
$170,000, computed as follows:

Adjusted basis of property transferred............              $100,000

[[Page 113]]

 
Liabilities to which new property is subject......               150,000
                             -----------------------
    Total.........................................               250,000
Less: Amount of money                      $40,000
 received: Cash.............
Amount of liabilities                       80,000
 subject to which property
 was transferred............
                                              ____               120,000
                                                   ---------------------
    Difference....................................               130,000
Plus: Amount of gain recognized upon the exchange.                40,000
                             -----------------------
    Basis of property acquired upon the exchange..               170,000
 

    (c) E realizes a gain of $75,000 on the exchange, computed as 
follows:

Value of property received........................              $220,000
Liabilities subject to which old property was                    150,000
 transferred......................................
                             -----------------------
    Total consideration received..................               370,000
Less:
  Adjusted basis of property              $175,000
   transferred..............
  Cash......................                40,000
  Liabilities to which new                  80,000
   property is subject......
                                              ____               295,000
                                                   ---------------------
    Gain realized.................................                75,000
 

For purposes of section 1031(b), the amount of other property or money 
received by E is $30,000. (Consideration received by E in the form of a 
transfer subject to a liability of $150,000 is offset by consideration 
given in the form of a receipt of property subject to an $80,000 
liability and by the $40,000 cash paid by E. Although consideration 
received in the form of cash or other property is not offset by 
consideration given in the form of an assumption of liabilities or a 
receipt of property subject to a liability, consideration given in the 
form of cash or other property is offset against consideration received 
in the form of an assumption of liabilities or a transfer of property 
subject to a liability.) Accordingly, under section 1031(b), $30,000 of 
the $75,000 gain is recognized. The basis of the apartment house 
acquired by E is $175,000, computed as follows:

Adjusted basis of property transferred............              $175,000
Cash..............................................                40,000
Liabilities to which new property is subject......                80,000
                             -----------------------
    Total.........................................               295,000
Less: Amount of money                     $150,000
 received: Amount of
 liabilities subject to
 which property was
 transferred................
                                              ____               150,000
                                                   ---------------------
    Difference....................................               145,000
Plus: Amount of gain recognized upon the exchange.                30,000
                             -----------------------
    Basis of property acquired upon the exchange..               175,000
 



Sec.  1.1031(e)-1  Exchange of livestock of different sexes.

    Section 1031(e) provides that livestock of different sexes are not 
property of like kind. Section 1031(e) and this section are applicable 
to taxable years to which the Internal Revenue Code of 1954 applies.

[T.D. 7141, 36 FR 18792, Sept. 22, 1971]



Sec.  1.1031(j)-1  Exchanges of multiple properties.

    (a) Introduction--(1) Overview. As a general rule, the application 
of section 1031 requires a property-by-property comparison for computing 
the gain recognized and basis of property received in a like-kind 
exchange. This section provides an exception to this general rule in the 
case of an exchange of multiple properties. An exchange is an exchange 
of multiple properties if, under paragraph (b)(2) of this section, more 
than one exchange group is created. In addition, an exchange is an 
exchange of multiple properties if only one exchange group is created 
but there is more than one property being transferred or received within 
that exchange group. Paragraph (b) of this section provides rules for 
computing the amount of gain recognized in an exchange of multiple 
properties qualifying for nonrecognition of gain or loss under section 
1031. Paragraph (c) of this section provides rules for computing the 
basis of properties received in an exchange of multiple properties 
qualifying for nonrecognition of gain or loss under section 1031.

[[Page 114]]

    (2) General approach. (i) In general, the amount of gain recognized 
in an exchange of multiple properties is computed by first separating 
the properties transferred and the properties received by the taxpayer 
in the exchange into exchange groups in the manner described in 
paragraph (b)(2) of this section. The separation of the properties 
transferred and the properties received in the exchange into exchange 
groups involves matching up properties of a like kind of like class to 
the extent possible. Next, all liabilities assumed by the taxpayer as 
part of the transaction are offset by all liabilities of which the 
taxpayer is relieved as part of the transaction, with the excess 
liabilities assumed or relieved allocated in accordance with paragraph 
(b)(2)(ii) of this section. Then, the rules of section 1031 and the 
regulations thereunder are applied separately to each exchange group to 
determine the amount of gain recognized in the exchange. See Sec. Sec.  
1.1031(b)-1 and 1.1031(c)-1. Finally, the rules of section 1031 and the 
regulations thereunder are applied separately to each exchange group to 
determine the basis of the properties received in the exchange. See 
Sec. Sec.  1.1031(d)-1 and 1.1031(d)-2.
    (ii) For purposes of this section, the exchanges are assumed to be 
made at arms' length, so that the aggregate fair market value of the 
property received in the exchange equals the aggregate fair market value 
of the property transferred. Thus, the amount realized with respect to 
the properties transferred in each exchange group is assumed to equal 
their aggregate fair market value.
    (b) Computation of gain recognized--(1) In general. In computing the 
amount of gain recognized in an exchange of multiple properties, the 
fair market value must be determined for each property transferred and 
for each property received by the taxpayer in the exchange. In addition, 
the adjusted basis must be determined for each property transferred by 
the taxpayer in the exchange.
    (2) Exchange groups and residual group. The properties transferred 
and the properties received by the taxpayer in the exchange are 
separated into exchange groups and a residual group to the extent 
provided in this paragraph (b)(2).
    (i) Exchange groups. Each exchange group consists of the properties 
transferred and received in the exchange, all of which are of a like 
kind or like class. If a property could be included in more than one 
exchange group, the taxpayer may include the property in any of those 
exchange groups. Property eligible for inclusion within an exchange 
group does not include money or property described in section 1031(a)(2) 
(i.e., stock in trade or other property held primarily for sale, stocks, 
bonds, notes, other securities or evidences of indebtedness or interest, 
interests in a partnership, certificates of trust or beneficial 
interests, or choses in action). For example, an exchange group may 
consist of all exchanged properties that are within the same General 
Asset Class or within the same Product Class (as defined in Sec.  
1.1031(a)-2(b)). Each exchange group must consist of at least one 
property transferred and at least one property received in the exchange.
    (ii) Treatment of liabilities. (A) All liabilities assumed by the 
taxpayer as part of the exchange are offset against all liabilities of 
which the taxpayer is relieved as part of the exchange, regardless of 
whether the liabilities are recourse or nonrecourse and regardless of 
whether the liabilities are secured by or otherwise relate to specific 
property transferred or received as part of the exchange. See Sec. Sec.  
1.1031 (b)-1(c) and 1.1031(d)-2. For purposes of this section, 
liabilities assumed by the taxpayer as part of the exchange consist of 
liabilities of the other party to the exchange assumed by the taxpayer 
and liabilities subject to which the other party's property is 
transferred in the exchange. Similarly, liabilities of which the 
taxpayer is relieved as part of the exchange consist of liabilities of 
the taxpayer assumed by the other party to the exchange and liabilities 
subject to which the taxpayer's property is transferred.
    (B) If there are excess liabilities assumed by the taxpayer as part 
of the exchange (i.e., the amount of liabilities assumed by the taxpayer 
exceeds the amount of liabilities of which the taxpayer is relieved), 
the excess is allocated among the exchange groups (but

[[Page 115]]

not to the residual group) in proportion to the aggregate fair market 
value of the properties received by the taxpayer in the exchange groups. 
The amount of excess liabilities assumed by the taxpayer that are 
allocated to each exchange group may not exceed the aggregate fair 
market value of the properties received in the exchange group.
    (C) If there are excess liabilities of which the taxpayer is 
relieved as part of the exchange (i.e., the amount of liabilities of 
which the taxpayer is relieved exceeds the amount of liabilities assumed 
by the taxpayer), the excess is treated as a Class I asset for purposes 
of making allocations to the residual group under paragraph (b)(2)(iii) 
of this section.
    (D) Paragraphs (b)(2)(ii) (A), (B), and (C) of this section are 
applied in the same manner even if section 1031 and this section apply 
to only a portion of a larger transaction (such as a transaction 
described in section 1060(c) and Sec.  1.1060-1T(b)). In that event, the 
amount of excess liabilities assumed by the taxpayer or the amount of 
excess liabilities of which the taxpayer is relieved is determined based 
on all liabilities assumed by the taxpayer and all liabilities of which 
the taxpayer is relieve as part of the larger transaction.
    (iii) Residual group. If the aggregate fair market value of the 
properties transferred in all of the exchange groups differs from the 
aggregate fair market value of the properties received in all of the 
exchange groups (taking liabilities into account in the manner described 
in paragraph (b)(2)(ii) of this section), a residual group is created. 
The residual group consists of an amount of money or other property 
having an aggregate fair market value equal to that difference. The 
residual group consists of either money or other property transferred in 
the exchange or money or other property received in the exchange, but 
not both. For this purpose, other property includes property described 
in section 1031(a)(2) (i.e., stock in trade or other property held 
primarily for sale, stocks, bonds, notes, other securities or evidences 
of indebtedness or interest, interests in a partnership, certificates of 
trust or beneficial interests, or choses in action), property 
transferred that is not of a like kind or like class with any property 
received, and property received that is not of a like kind or like class 
with any property transferred. The money and properties that are 
allocated to the residual group are considered to come from the 
following assets in the following order: first from Class I assets, then 
from Class II assets, then from Class III assets, and then from Class IV 
assets. The terms Class I assets, Class II assets, Class III assets, and 
Class IV assets have the same meanings as in Sec.  1.338-6(b), to which 
reference is made by Sec.  1.1060-1(c)(2). Within each Class, taxpayers 
may choose which properties are allocated to the residual group.
    (iv) Exchange group surplus and deficiency. For each of the exchange 
groups described in this section, an ``exchange group surplus'' or 
``exchange group deficiency,'' if any, must be determined. An exchange 
group surplus is the excess of the aggregate fair market value of the 
properties received (less the amount of any excess liabilities assumed 
by the taxpayer that are allocated to that exchange group), in an 
exchange group over the aggregate fair market value of the properties 
transferred in that exchange group. An exchange group deficiency is the 
excess of the aggregate fair market value of the properties transferred 
in an exchange group over the aggregate fair market value of the 
properties received (less the amount of any excess liabilities assumed 
by the taxpayer that are allocated to that exchange group) in that 
exchange group.
    (3) Amount of gain recognized. (i) For purposes of this section, the 
amount of gain or loss realized with respect to each exchange group and 
the residual group is the difference between the aggregate fair market 
value of the properties transferred in that exchange group or residual 
group and the properties' aggregate adjusted basis. The gain realized 
with respect to each exchange group is recognized to the extent of the 
lesser of the gain realized and the amount of the exchange group 
deficiency, if any. Losses realized with respect to an exchange group 
are not recognized. See section 1031 (a) and (c). The total amount of 
gain recognized under section 1031 in the exchange is

[[Page 116]]

the sum of the amount of gain recognized with respect to each exchange 
group. With respect to the residual group, the gain or loss realized (as 
determined under this section) is recognized as provided in section 1001 
or other applicable provision of the Code.
    (ii) The amount of gain or loss realized and recognized with respect 
to properties transferred by the taxpayer that are not within any 
exchange group or the residual group is determined under section 1001 
and other applicable provisions of the Code, with proper adjustments 
made for all liabilities not allocated to the exchange groups or the 
residual group.
    (c) Computation of basis of properties received. In an exchange of 
multiple properties qualifying for nonrecognition of gain or loss under 
section 1031 and this section, the aggregate basis of properties 
received in each of the exchange groups is the aggregate adjusted basis 
of the properties transferred by the taxpayer within that exchange 
group, increased by the amount of gain recognized by the taxpayer with 
respect to that exchange group, increased by the amount of the exchange 
group surplus or decreased by the amount of the exchange group 
deficiency, and increased by the amount, if any, of excess liabilities 
assumed by the taxpayer that are allocated to that exchange group. The 
resulting aggregate basis of each exchange group is allocated 
proportionately to each property received in the exchange group in 
accordance with its fair market value. The basis of each property 
received within the residual group (other than money) is equal to its 
fair market value.
    (d) Examples. The application of this section may be illustrated by 
the following examples:

    Example 1. (i) K exchanges computer A (asset class 00.12) and 
automobile A (asset class 00.22), both of which were held by K for 
productive use in its business, with W for printer B (asset class 00.12) 
and automobile B (asset class 00.22), both of which will be held by K 
for productive use in its business. K's adjusted basis and the fair 
market value of the exchanged properties are as follows:

------------------------------------------------------------------------
                                                            Fair market
                                          Adjusted basis       value
------------------------------------------------------------------------
Computer A..............................            $375          $1,000
Automobile A............................           1,500           4,000
Printer B...............................  ..............           2,050
Automobile B............................  ..............           2,950
------------------------------------------------------------------------

    (ii) Under paragraph (b)(2) of this section, the properties 
exchanged are separated into exchange groups as follows:
    (A) The first exchange group consists of computer A and printer B 
(both are within the same General Asset Class) and, as to K, has an 
exchange group surplus of $1050 because the fair market value of printer 
B ($2050) exceeds the fair market value of computer A ($1000) by that 
amount.
    (B) The second exchange group consists of automobile A and 
automobile B (both are within the same General Asset Class) and, as to 
K, has an exchange group deficiency of $1050 because the fair market 
value of automobile A ($4000) exceeds the fair market value of 
automobile B ($2950) by that amount.
    (iii) K recognizes gain on the exchange as follows:
    (A) With respect to the first exchange group, the amount of gain 
realized is the excess of the fair market value of computer A ($1000) 
over its adjusted basis ($375), or $625. The amount of gain recognized 
is the lesser of the gain realized ($625) and the exchange group 
deficiency ($0), or $0.
    (B) With respect to the second exchange group, the amount of gain 
realized is the excess of the fair market value of automobile A ($4000) 
over its adjusted basis ($1500), or $2500. The amount of gain recognized 
is the lesser of the gain realized ($2500) and the exchange group 
deficiency ($1050), or $1050.
    (iv) The total amount of gain recognized by K in the exchange is the 
sum of the gains recognized with respect to both exchange groups ($0 + 
$1050), or $1050.
    (v) The bases of the property received by K in the exchange, printer 
B and automobile B, are determined in the following manner:
    (A) The basis of the property received in the first exchange group 
is the adjusted basis of the property transferred within the exchange 
group ($375), increased by the amount of gain recognized with respect to 
that exchange group ($0), increased by the amount of the exchange group 
surplus ($1050), and increased by the amount of excess liabilities 
assumed allocated to that exchange group ($0), or $1425. Because printer 
B was the only property received within the first exchange group, the 
entire basis of $1425 is allocated to printer B.
    (B) The basis of the property received in the second exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($1500), increased by the amount of gain recognized with respect 
to that exchange group ($1050), decreased by the

[[Page 117]]

amount of the exchange group deficiency ($1050), and increased by the 
amount of excess liabilities assumed allocated to that exchange group 
($0), or $1500. Because automobile B was the only property received 
within the second exchange group, the entire basis of $1500 is allocated 
to automobile B.
    Example 2. (i) F exchanges computer A (asset class 00.12) and 
automobile A (asset class 00.22), both of which were held by F for 
productive use in its business, with G for printer B (asset class 00.12) 
and automobile B (asset class 00.22), both of which will be held by F 
for productive use in its business, and corporate stock and $500 cash. 
The adjusted basis and fair market value of the properties are as 
follows:

------------------------------------------------------------------------
                                                            Fair market
                                          Adjusted basis       value
------------------------------------------------------------------------
Computer A..............................            $375          $1,000
Automobile A............................           3,500           4,000
Printer B...............................  ..............             800
Automobile B............................  ..............           2,950
Corporate stock.........................  ..............             750
Cash....................................  ..............             500
------------------------------------------------------------------------

    (ii) Under paragraph (b)(2) of this section, the properties 
exchanged are separated into exchange groups as follows:
    (A) The first exchange group consists of computer A and printer B 
(both are within the same General Asset Class) and, as to F, has an 
exchange group deficiency of $200 because the fair market value of 
computer A ($1000) exceeds the fair market value of printer B ($800) by 
that amount.
    (B) The second exchange group consists of automobile A and 
automobile B (both are within the same General Asset Class) and, as to 
F, has an exchange group deficiency of $1050 because the fair market 
value of automobile A ($4000) exceeds the fair market value of 
automobile B ($2950) by that amount.
    (C) Because the aggregate fair market value of the properties 
transferred by F in the exchange groups ($5,000) exceeds the aggregate 
fair market value of the properties received by F in the exchange groups 
($3750) by $1250, there is a residual group in that amount consisting of 
the $500 cash and the $750 worth of corporate stock.
    (iii) F recognizes gain on the exchange as follows:
    (A) With respect to the first exchange group, the amount of gain 
realized is the excess of the fair market value of computer A ($1000) 
over its adjusted basis ($375), or $625. The amount of gain recognized 
is the lesser of the gain realized ($625) and the exchange group 
deficiency ($200), or $200.
    (B) With respect to the second exchange group, the amount of gain 
realized is the excess of the fair market value of automobile A ($4000) 
over its adjusted basis ($3500), or $500. The amount of gain recognized 
is the lesser of the gain realized ($500) and the exchange group 
deficiency ($1050), or $500.
    (C) No property transferred by F was allocated to the residual 
group. Therefore, F does not recognize gain or loss with respect to the 
residual group.
    (iv) The total amount of gain recognized by F in the exchange is the 
sum of the gains recognized with respect to both exchange groups ($200 + 
$500), or $700.
    (v) The bases of the properties received by F in the exchange 
(printer B, automobile B, and the corporate stock) are determined in the 
following manner:
    (A) The basis of the property received in the first exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($375), increased by the amount of gain recognized with respect to 
that exchange group ($200), decreased by the amount of the exchange 
group deficiency ($200), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $375. 
Because printer B was the only property received within the first 
exchange group, the entire basis of $375 is allocated to printer B.
    (B) The basis of the property received in the second exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($3500), increased by the amount of gain recognized with respect 
to that exchange group ($500), decreased by the amount of the exchange 
group deficiency ($1050), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $2950. 
Because automobile B was the only property received within the second 
exchange group, the entire basis of $2950 is allocated to automobile B.
    (C) The basis of the property received within the residual group 
(the corporate stock) is equal to its fair market value or $750. Cash of 
$500 is also received within the residual group.
    Example 3. (i) J and H enter into an exchange of the following 
properties. All of the property (except for the inventory) transferred 
by J was held for productive use in J's business. All of the property 
received by J will be held by J for productive use in its business.

----------------------------------------------------------------------------------------------------------------
                      J Transfers:                                             H Transfers:
----------------------------------------------------------------------------------------------------------------
                                              Adjusted   Fair market                                 Fair market
                 Property                      basis        value                Property               value
----------------------------------------------------------------------------------------------------------------
Computer A................................       $1,500       $5,000  Computer Z...................       $4,500
Computer B................................          500        3,000  Printer Y....................        2,500

[[Page 118]]

 
Printer C.................................        2,000        1,500  Real Estate X................        1,000
Real Estate D.............................        1,200        2,000  Real Estate W................        4,000
Real Estate E.............................            0        1,800  Grader V.....................        2,000
Scraper F.................................        3,300        2,500  Truck T......................        1,700
Inventory.................................        1,000        1,700  Cash.........................        1,800
                                           --------------------------                               ------------
      Total...............................        9,500       17,500  .............................       17,500
----------------------------------------------------------------------------------------------------------------

    (ii) Under paragraph (b)(2) of this section, the properties 
exchanged are separated into exchange groups as follows:
    (A) The first exchange group consists of computer A, computer B, 
printer C, computer Z, and printer Y (all are within the same General 
Asset Class) and, as to J, has an exchange group deficiency of $2500 
(($5000 + $3000 + $1500) - ($4500 + $2500)).
    (B) The second exchange group consists of real estate D, E, X and W 
(all are of a like kind) and, as to J, has an exchange group surplus of 
$1200 (($1000 + $4000) - ($2000 + $1800)).
    (C) The third exchange group consists of scraper F and grader V 
(both are within the same Product Class (NAICS code 333120)) and, as to 
J, has an exchange group deficiency of $500 ($2500 - $2000).
    (D) Because the aggregate fair market value of the properties 
transferred by J in the exchange groups ($15,800) exceeds the aggregate 
fair market value of the properties received by J in the exchange groups 
($14,000) by $1800, there is a residual group in that amount consisting 
of the $1800 cash (a Class I asset).
    (E) The transaction also includes a taxable exchange of inventory 
(which is property described in section 1031 (a)(2)) for truck T (which 
is not of a like kind or like class to any property transferred in the 
exchange).
    (iii) J recognizes gain on the transaction as follows:
    (A) With respect to the first exchange group, the amount of gain 
realized is the excess of the aggregate fair market value of the 
properties transferred in the exchange group ($9500) over the aggregate 
adjusted basis ($4000), or $5500. The amount of gain recognized is the 
lesser of the gain realized ($5500) and the exchange group deficiency 
($2500), or $2500.
    (B) With respect to the second exchange group, the amount of gain 
realized is the excess of the aggregate fair market value of the 
properties transferred in the exchange group ($3800) over the aggregate 
adjusted basis ($1200), or $2600. The amount of gain recognized is the 
lesser of the gain realized ($2600) and the exchange group deficiency 
($0), or $0.
    (C) With respect to the third exchange group, a loss is realized in 
the amount of $800 because the fair market value of the property 
transferred in the exchange group ($2500) is less than its adjusted 
basis ($3300). Although a loss of $800 was realized, under section 1031 
(a) and (c) losses are not recognized.
    (D) No property transferred by J was allocated to the residual 
group. Therefore, J does not recognize gain or loss with respect to the 
residual group.
    (E) With respect to the taxable exchange of inventory for truck T, 
gain of $700 is realized and recognized by J (amount realized of $1700 
(the fair market value of truck T) less the adjusted basis of the 
inventory ($1000)).
    (iv) The total amount of gain recognized by J in the transaction is 
the sum of the gains recognized under section 1031 with respect to each 
exchange group ($2500 + $0 + $0) and any gain recognized outside of 
section 1031 ($700), or $3200.
    (v) The bases of the property received by J in the exchange are 
determined in the following manner:
    (A) The aggregate basis of the properties received in the first 
exchange group is the adjusted basis of the properties transferred 
within that exchange group ($4000), increased by the amount of gain 
recognized with respect to that exchange group ($2500), decreased by the 
amount of the exchange group deficiency ($2500), and increased by the 
amount of excess liabilities assumed allocated to that exchange group 
($0), or $4000. This $4000 of basis is allocated proportionately among 
the assets received within the first exchange group in accordance with 
their fair market values: Computer Z's basis is $2571 ($4000 x $4500/
$7000); printer Y's basis is $1429 ($4000 x $2500/$7000).
    (B) The aggregate basis of the properties received in the second 
exchange group is the adjusted basis of the properties transferred 
within that exchange group ($1200), increased by the amount of gain 
recognized with respect to that exchange group ($0), increased by the 
amount of the exchange group surplus ($1200), and increased by the 
amount of excess liabilities assumed allocated to that exchange group 
($0), or $2400. This $2400 of basis is allocated proportionately among 
the assets received within the second exchange group in accordance with 
their fair market values: Real estate X's basis is $480 ($2400 x

[[Page 119]]

$1000/$5000); real estate W's basis is $1920 ($2400 x $4000/$5000).
    (c) The basis of the property received in the third exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($3300), increased by the amount of gain recognized with respect 
to that exchange group ($0), decreased by the amount of the exchange 
group deficiency ($500), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $2800. 
Because grader V was the only property received within the third 
exchange group, the entire basis of $2800 is allocated to grader V.
    (D) Cash of $1800 is received within the residual group.
    (E) The basis of the property received in the taxable exchange 
(truck T) is equal to its cost of $1700.
    Example 4. (i) B exchanges computer A (asset class 00.12), 
automobile A (asset class 00.22) and truck A (asset class 00.241), with 
C for computer R (asset class 00.12), automobile R (asset class 00.22), 
truck R (asset class 00.241) and $400 cash. All properties transferred 
by either B or C were held for productive use in the respective 
transferor's business. Similarly, all properties to be received by 
either B or C will be held for productive use in the respective 
recipient's business. Automobile A, automobile R and truck R are each 
secured by a nonrecourse liability and are transferred subject to such 
liability. The adjusted basis, fair market value, and liability secured 
by each property, if any, are as follows:

------------------------------------------------------------------------
                                                       Fair
                                          Adjusted    market   Liability
                                           basis      value
------------------------------------------------------------------------
B transfers:
  Computer A...........................       $800     $1,500         $0
  Automobile A.........................        900      2,500        500
  Truck A..............................        700      2,000          0
C transfers:
  Computer R...........................      1,100      1,600          0
  Automobile R.........................      2,100      3,100        750
  Truck R..............................        600      1,400        250
  Cash.................................  .........        400  .........
------------------------------------------------------------------------

    (ii) The tax treatment to B is as follows:
    (A)(1) The first exchange group consists of computers A and R (both 
are within the same General Asset Class).
    (2) The second exchange group consists of automobiles A and R (both 
are within the same General Asset Class).
    (3) The third exchange group consists of trucks A and R (both are in 
the same General Asset Class).
    (B) Under paragraph (b)(2)(ii) of this section, all liabilities 
assumed by B ($1000) are offset by all liabilities of which B is 
relieved ($500), resulting in excess liabilities assumed of $500. The 
excess liabilities assumed of $500 is allocated among the exchange 
groups in proportion to the fair market value of the properties received 
by B in the exchange groups as follows:
    (1) $131 of excess liabilities assumed ($500 x $1600/$6100) is 
allocated to the first exchange group. The first exchange group has an 
exchange group deficiency of $31 because the fair market value of 
computer A ($1500) exceeds the fair market value of computer R less the 
excess liabilities assumed allocated to the exchange group ($1600-$131) 
by that amount.
    (2) $254 of excess liabilities assumed ($500 x $3100/$6100) is 
allocated to the second exchange group. The second exchange group has an 
exchange group surplus of $346 because the fair market value of 
automobile R less the excess liabilities assumed allocated to the 
exchange group ($3100-$254) exceeds the fair market value of automobile 
A ($2500) by that amount.
    (3) $115 of excess liabilities assumed ($500 x $1400/$6100) is 
allocated to the third exchange group. The third exchange group has an 
exchange group deficiency of $715 because the fair market value of truck 
A ($2000) exceeds the fair market value of truck R less the excess 
liabilities assumed allocated to the exchange group ($1400-$115) by that 
amount.
    (4) The difference between the aggregate fair market value of the 
properties transferred in all of the exchange groups, $6000, and the 
aggregate fair market value of the properties received in all of the 
exchange groups (taking excess liabilities assumed into account), $5600, 
is $400. Therefore there is a residual group in that amount consisting 
of $400 cash received.
    (C) B recognizes gain on the exchange as follows:
    (1) With respect to the first exchange group, the amount of gain 
realized is the excess of the fair market value of computer A ($1500) 
over its adjusted basis ($800), or $700. The amount of gain recognized 
is the lesser of the gain realized ($700) and the exchange group 
deficiency ($31), or $31.
    (2) With respect to the second exchange group, the amount of gain 
realized is the excess of the fair market value of automobile A ($2500) 
over its adjusted basis ($900), or $1600.
    The amount of gain recognized is the lesser of the gain realized 
($1600) and the exchange group deficiency ($0), or $0.
    (3) With respect to the third exchange group, the amount of gain 
realized is the excess of the fair market value of truck A ($2000) over 
its adjusted basis ($700), or $1300. The amount of gain recognized is 
the lesser of gain realized ($1300) and the exchange group deficiency 
($715), or $715.
    (4) No property transferred by B was allocated to the residual 
group. Therefore, B does not recognize gain or loss with respect to the 
residual group.
    (D) The total amount of gain recognized by B in the exchange is the 
sum of the gains

[[Page 120]]

recognized under section 1031 with respect to each exchange group ($31 + 
$0 + $715), or $746.
    (E) the bases of the property received by B in the exchange 
(computer R, automobile R, and truck R) are determined in the following 
manner:
    (1) The basis of the property received in the first exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($800), increased by the amount of gain recognized with respect to 
that exchange group ($31), decreased by the amount of the exchange group 
deficiency ($31), and increased by the amount of excess liabilities 
assumed allocated to that exchange group ($131), or $931. Because 
computer R was the only property received within the first exchange 
group, the entire basis of $931 is allocated to computer R.
    (2) The basis of the property received in the second exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($900), increased by the amount of gain recognized with respect to 
that exchange group ($0), increased by the amount of the exchange group 
surplus ($346), and increased by the amount of excess liabilities 
assumed allocated to that exchange group ($254), or $1500. Because 
automobile R was the only property received within the second exchange 
group, the entire basis of $1500 is allocated to automobile R.
    (3) The basis of the property received in the third exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($700), increased by the amount of gain recognized with respect to 
that exchange group ($715), decreased by the amount of the exchange 
group deficiency ($715), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($115), or $815. 
Because truck R was the only property received within the third exchange 
group, the entire basis of $815 is allocated to truck R.
    (F) Cash of $400 is also received by B.
    (iii) The tax treatment to C is as follows:
    (A) (1) The first exchange group consists of computers R and A (both 
are within the same General Asset Class).
    (2) The second exchange group consists of automobiles R and A (both 
are within the same General Asset Class).
    (3) The third exchange group consists of trucks R and A (both are in 
the same General Asset Class).
    (B) Under paragraph (b)(2)(ii) of this section, all liabilities of 
which C is relieved ($1000) are offset by all liabilities assumed by C 
($500), resulting in excess liabilities relieved of $500. This excess 
liabilities relieved is treated as cash received by C.
    (1) The first exchange group has an exchange group deficiency of 
$100 because the fair market value of computer R ($1600) exceeds the 
fair market value of computer A ($1500) by that amount.
    (2) The second exchange group has an exchange group deficiency of 
$600 because the fair market value of automobile R ($3100) exceeds the 
fair market value of automobile A ($2500) by that amount.
    (3) The third exchange group has an exchange group surplus of $600 
because the fair market value of truck A ($2000) exceeds the fair market 
value of truck R ($1400) by that amount.
    (4) The difference between the aggregate fair market value of the 
properties transferred by C in all of the exchange groups, $6100, and 
the aggregate fair market value of the properties received by C in all 
of the exchange groups, $6000, is $100. Therefore, there is a residual 
group in that amount, consisting of excess liabilities relieved of $100, 
which is treated as cash received by C.
    (5) The $400 cash paid by C and $400 of the excess liabilities 
relieved which is treated as cash received by C are not within the 
exchange groups of the residual group.
    (C) C recognizes gain on the exchange as follows:
    (1) With respect to the first exchange group, the amount of gain 
realized is the excess of the fair market value of computer R ($1600) 
over its adjusted basis ($1100), or $500. The amount of gain recognized 
is the lesser of the gain realized ($500) and the exchange group 
deficiency ($100), or $100.
    (2) With respect to the second exchange group, the amount of gain 
realized is the excess of the fair market value of automobile R ($3100) 
over its adjusted basis ($2100), or $1000. The amount of gain recognized 
is the lesser of the gain realized ($1000) and the exchange group 
deficiency ($600), or $600.
    (3) With respect to the third exchange group, the amount of gain 
realized is the excess of the fair market value of truck R ($1400) over 
its adjusted basis ($600), or $800. The amount of gain recognized is the 
lesser of gain realized ($800) and the exchange group deficiency ($0), 
or $0.
    (4) No property transferred by C was allocated to the residual 
group. Therefore, C does not recognize any gain with respect to the 
residual group.
    (D) The total amount of gain recognized by C in the exchange is the 
sum of the gains recognized under section 1031 with respect to each 
exchange group ($100 + $600 + $0), or $700.
    (E) The bases of the properties received by C in the exchange 
(computer A, automobile A, and truck A) are determined in the following 
manner:
    (1) The basis of the property received in the first exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($1100), increased by the amount of gain recognized with respect 
to that exchange group ($100), decreased by the amount of the exchange 
group deficiency ($100), and increased by the amount of excess

[[Page 121]]

liabilities assumed allocated to that exchange group ($0), or $1100. 
Because computer A was the only property received within the first 
exchange group, the entire basis of $1100 is allocated to computer A.
    (2) The basis of the property received in the second exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($2100), increased by the amount of gain recognized with respect 
to that exchange group ($600), decreased by the amount of the exchange 
group deficiency ($600), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $2100. 
Because automobile A was the only property received within the second 
exchange group, the entire basis of $2100 is allocated to automobile A.
    (3) The basis of the property received in the third exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($600), increased by the amount of gain recognized with respect to 
that exchange group ($0), increased by the amount of the exchange group 
surplus ($600), and increased by the amount of excess liabilities 
assumed allocated to that exchange group ($0), or $1200. Because truck A 
was the only property received within the third exchange group, the 
entire basis of $1200 is allocated to truck A.
    Example 5. (i) U exchanges real estate A, real estate B, and grader 
A (NAICS code 333120) with V for real estate R and railroad car R 
(General Asset Class 00.25). All properties transferred by either U or V 
were held for productive use in the respective transferor's business. 
Similarly, all properties to be received by either U or V will be held 
for productive use in the respective recipient's business. Real estate R 
is secured by a recourse liability and is transferred subject to that 
liability. The adjusted basis, fair market value, and liability secured 
by each property, if any, are as follows:

------------------------------------------------------------------------
                                     Adjusted   Fair market
                                      basis        value      Liability
------------------------------------------------------------------------
U Transfers:
  Real Estate A..................        $2000        $5000  ...........
  Real Estate B..................         8000       13,500  ...........
  Grader A.......................          500         2000  ...........
V Transfers:
  Real Estate R..................      $20,000      $26,500        $7000
  Railroad car R.................         1200         1000
------------------------------------------------------------------------

    (ii) The tax treatment to U is as follows:
    (A) The exchange group consists of real estate A, real estate B, and 
real estate R.
    (B) Under paragraph (b)(2)(ii) of this section, all liabilities 
assumed by U ($7000) are excess liabilities assumed. The excess 
liabilities assumed of $7000 is allocated to the exchange group.
    (1) The exchange group has an exchange group surplus of $1000 
because the fair market value of real estate R less the excess 
liabilities assumed allocated to the exchange group ($26,500-$7000) 
exceeds the aggregate fair market value of real estate A and B ($18,500) 
by that amount.
    (2) The difference between the aggregate fair market value of the 
properties received in the exchange group (taking excess liabilities 
assumed into account), $19,500, and the aggregate fair market value of 
the properties transferred in the exchange group, $18,500, is $1000. 
Therefore, there is a residual group in that amount consisting of $1000 
(or 50 percent of the fair market value) of grader A.
    (3) The transaction also includes a taxable exchange of the 50 
percent portion of grader A not allocated to the residual group (which 
is not of a like kind or like class to any property received by U in the 
exchange) for railroad car R (which is not of a like kind or like class 
to any property transferred by U in the exchange).
    (C) U recognizes gain on the exchange as follows:
    (1) With respect to the exchange group, the amount of the gain 
realized is the excess of the aggregate fair market value of real estate 
A and B ($18,500) over the aggregate adjusted basis ($10,000), or $8500. 
The amount of the gain recognized is the lesser of the gain realized 
($8500) and the exchange group deficiency ($0), or $0.
    (2) With respect to the residual group, the amount of gain realized 
and recognized is the excess of the fair market value of the 50 percent 
portion of grader A that is allocated to the residual group ($1000) over 
its adjusted basis ($250), or $750.
    (3) With respect to the taxable exchange of the 50 percent portion 
of grader A not allocated to the residual group for railroad car R, gain 
of $750 is realized and recognized by U (amount realized of $1000 (the 
fair market value of railroad car R) less the adjusted basis of the 50 
percent portion of grader A not allocated to the residual group ($250)).
    (D) The total amount of gain recognized by U in the transaction is 
the sum of the gain recognized under section 1031 with respect to the 
exchange group ($0), any gain recognized with respect to the residual 
group ($750), and any gain recognized with respect to property 
transferred that is not in the exchange group or the residual group 
($750), or $1500.
    (E) The bases of the property received by U in the exchange (real 
estate R and railroad car R) are determined in the following manner:
    (1) The basis of the property received in the exchange group is the 
aggregate adjusted basis of the property transferred within that 
exchange group ($10,000), increased by the amount of gain recognized 
with respect to that exchange group ($0), increased by the amount of the 
exchange group surplus ($1000), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($7000), or 
$18,000. Because real

[[Page 122]]

estate R is the only property received within the exchange group, the 
entire basis of $18,000 is allocated to real estate R.
    (2) The basis of railroad car R is equal to its cost of $1000.
    (iii) The tax treatment to V is as follows:
    (A) The exchange group consists of real estate R, real estate A, and 
real estate B.
    (B) Under paragraph (b)(2)(ii) of this section, the liabilities of 
which V is relieved ($7000) results in excess liabilities relieved of 
$7000 and is treated as cash received by V.
    (1) The exchange group has an exchange group deficiency of $8000 
because the fair market value of real estate R ($26,500) exceeds the 
aggregate fair market value of real estate A and B ($18,500) by that 
amount.
    (2) The difference between the aggregate fair market value of the 
properties transferred by V in the exchange group, $26,500, and the 
aggregate fair market value of the properties received by V in the 
exchange group, $18,500, is $8000. Therefore, there is a residual group 
in that amount, consisting of the excess liabilities relieved of $7000, 
which is treated as cash received by V, and $1000 (or 50 percent of the 
fair market value) of grader A.
    (3) The transaction also includes a taxable exchange of railroad car 
R (which is not of a like kind or like class to any property received by 
V in the exchange) for the 50 percent portion of grader A (which is not 
of a like kind or like class to any property transferred by V in the 
exchange) not allocated to the residual group.
    (C) V recognizes gain on the exchange as follows:
    (1) With respect to the exchange group, the amount of the gain 
realized is the excess of the fair market value of real estate R 
($26,500) over its adjusted basis ($20,000), or $6500. The amount of the 
gain recognized is the lesser of the gain realized ($6500) and the 
exchange group deficiency ($8000), or $6500.
    (2) No property transferred by V was allocated to the residual 
group. Therefore, V does not recognize gain or loss with respect to the 
residual group.
    (3) With respect to the taxable exchange of railroad car R for the 
50 percent portion of grader A not allocated to the exchange group or 
the residual group, a loss is realized and recognized in the amount of 
$200 (the excess of the $1200 adjusted basis of railroad car R over the 
amount realized of $1000 (fair market value of the 50 percent portion of 
grader A)).
    (D) The basis of the property received by V in the exchange (real 
estate A, real estate B, and grader A) are determined in the following 
manner:
    (1) The basis of the property received in the exchange group is the 
adjusted basis of the property transferred within that exchange group 
($20,000), increased by the amount of gain recognized with respect to 
that exchange group ($6500), and decreased by the amount of the exchange 
group deficiency ($8000), or $18,500. This $18,500 of basis is allocated 
proportionately among the assets received within the exchange group in 
accordance with their fair market values: real estate A's basis is $5000 
($18,500 x $5000/$18,500); real estate B's basis is $13,500 ($18,500 x 
$13,500/$18,500).
    (2) The basis of grader A is $2000.

    (e) Effective date. Section 1.1031 (j)-1 is effective for exchanges 
occurring on or after April 11, 1991.

[T.D. 8343, 56 FR 14855, Apr. 12, 1991, as amended by T.D. 8858, 65 FR 
1237, Jan. 7, 2000; T.D. 8940, 66 FR 9929, Feb. 13, 2001; T.D. 9202, 70 
FR 28820, May 19, 2005]



Sec.  1.1031(k)-1  Treatment of deferred exchanges.

    (a) Overview. This section provides rules for the application of 
section 1031 and the regulations thereunder in the case of a ``deferred 
exchange.'' For purposes of section 1031 and this section, a deferred 
exchange is defined as an exchange in which, pursuant to an agreement, 
the taxpayer transfers property held for productive use in a trade or 
business or for investment (the ``relinquished property'') and 
subsequently receives property to be held either for productive use in a 
trade or business or for investment (the ``replacement property''). In 
the case of a deferred exchange, if the requirements set forth in 
paragraphs (b), (c), and (d) of this section (relating to identification 
and receipt of replacement property) are not satisfied, the replacement 
property received by the taxpayer will be treated as property which is 
not of a like kind to the relinquished property. In order to constitute 
a deferred exchange, the transaction must be an exchange (i.e., a 
transfer of property for property, as distinguished from a transfer of 
property for money). For example, a sale of property followed by a 
purchase of property of a like kind does not qualify for nonrecognition 
of gain or loss under section 1031 regardless of whether the 
identification and receipt requirements of section 1031(a)(3) and 
paragraphs (b), (c), and (d) of this section are satisfied. The transfer 
of relinquished property in a deferred exchange is not within the 
provisions of section 1031(a) if, as part of the consideration, the 
taxpayer receives money or property which does

[[Page 123]]

not meet the requirements of section 1031(a), but the transfer, if 
otherwise qualified, will be within the provisions of either section 
1031 (b) or (c). See Sec.  1.1031(a)-1(a)(2). In addition, in the case 
of a transfer of relinquished property in a deferred exchange, gain or 
loss may be recognized if the taxpayer actually or constructively 
receives money or property which does not meet the requirements of 
section 1031(a) before the taxpayer actually receives like-kind 
replacement property. If the taxpayer actually or constructively 
receives money or property which does not meet the requirements of 
section 1031(a) in the full amount of the consideration for the 
relinquished property, the transaction will constitute a sale, and not a 
deferred exchange, even though the taxpayer may ultimately receive like-
kind replacement property. For purposes of this section, property which 
does not meet the requirements of section 1031(a) (whether by being 
described in section 1031(a)(2) or otherwise) is referred to as ``other 
property.'' For rules regarding actual and constructive receipt, and 
safe harbors therefrom, see paragraphs (f) and (g), respectively, of 
this section. For rules regarding the determination of gain or loss 
recognized and the basis of property received in a deferred exchange, 
see paragraph (j) of this section.
    (b) Identification and receipt requirements--(1) In general. In the 
case of a deferred exchange, any replacement property received by the 
taxpayer will be treated as property which is not of a like kind to the 
relinquished property if--
    (i) The replacement property is not ``identified'' before the end of 
the ``identification period,'' or
    (ii) The identified replacement property is not received before the 
end of the ``exchange period.''
    (2) Identification period and exchange period. (i) The 
identification period begins on the date the taxpayer transfers the 
relinquished property and ends at midnight on the 45th day thereafter.
    (ii) The exchange period begins on the date the taxpayer transfers 
the relinquished property and ends at midnight on the earlier of the 
180th day thereafter or the due date (including extensions) for the 
taxpayer's return of the tax imposed by chapter 1 of subtitle A of the 
Code for the taxable year in which the transfer of the relinquished 
property occurs.
    (iii) If, as part of the same deferred exchange, the taxpayer 
transfers more than one relinquished property and the relinquished 
properties are transferred on different dates, the identification period 
and the exchange period are determined by reference to the earliest date 
on which any of the properties are transferred.
    (iv) For purposes of this paragraph (b)(2), property is transferred 
when the property is disposed of within the meaning of section 1001(a).
    (3) Example. This paragraph (b) may be illustrated by the following 
example.

    Example: (i) M is a corporation that files its Federal income tax 
return on a calendar year basis. M and C enter into an agreement for an 
exchange of property that requires M to transfer property X to C. Under 
the agreement, M is to identify like-kind replacement property which C 
is required to purchase and to transfer to M. M transfers property X to 
C on November 16, 1992.
    (ii) The identification period ends at midnight on December 31, 
1992, the day which is 45 days after the date of transfer of property X. 
The exchange period ends at midnight on March 15, 1993, the due date for 
M's Federal income tax return for the taxable year in which M 
transferred property X. However, if M is allowed the automatic six-month 
extension for filing its tax return, the exchange period ends at 
midnight on May 15, 1993, the day which is 180 days after the date of 
transfer of property X.

    (c) Identification of replacement property before the end of the 
identification period--(1) In general. For purposes of paragraph 
(b)(1)(i) of this section (relating to the identification requirement), 
replacement property is identified before the end of the identification 
period only if the requirements of this paragraph (c) are satisfied with 
respect to the replacement property. However, any replacement property 
that is received by the taxpayer before the end of the identification 
period will in all events be treated as identified before the end of the 
identification period.

[[Page 124]]

    (2) Manner of identifying replacement property. Replacement property 
is identified only if it is designated as replacement property in a 
written document signed by the taxpayer and hand delivered, mailed, 
telecopied, or otherwise sent before the end of the identification 
period to either--
    (i) The person obligated to transfer the replacement property to the 
taxpayer (regardless of whether that person is a disqualified person as 
defined in paragraph (k) of this section); or
    (ii) Any other person involved in the exchange other than the 
taxpayer or a disqualified person (as defined in paragraph (k) of this 
section).

Examples of persons involved in the exchange include any of the parties 
to the exchange, an intermediary, an escrow agent, and a title company. 
An identification of replacement property made in a written agreement 
for the exchange of properties signed by all parties thereto before the 
end of the identification period will be treated as satisfying the 
requirements of this paragraph (c)(2).
    (3) Description of replacement property. Replacement property is 
identified only if it is unambiguously described in the written document 
or agreement. Real property generally is unambiguously described if it 
is described by a legal description, street address, or distinguishable 
name (e.g., the Mayfair Apartment Building). Personal property generally 
is unambiguously described if it is described by a specific description 
of the particular type of property. For example, a truck generally is 
unambigously described if it is described by a specific make, model, and 
year.
    (4) Alternative and multiple properties. (i) The taxpayer may 
identify more than one replacement property. Regardless of the number of 
relinguished properties transferred by the taxpayer as part of the same 
deferred exchange, the maximum number of replacement properties that the 
taxpayer may identify is--
    (A) Three properties without regard to the fair market values of the 
properties (the ``3-property rule''), or
    (B) Any number of properties as long as their aggregate fair market 
value as of the end of the identification period does not exceed 200 
percent of the aggregate fair market value of all the relinguished 
properties as of the date the relinguished properties were transferred 
by the taxpayer (the ``200-percent rule'').
    (ii) If, as of the end of the identification period, the taxpayer 
has identified more properties as replacement properties than permitted 
by paragraph (c)(4)(i) of this section, the taxpayer is treated as if no 
replacement property had been identified. The preceding sentence will 
not apply, however, and an identification satisfying the requirements of 
paragraph (c)(4)(i) of this section will be considered made, with 
respect to--
    (A) Any replacement property received by the taxpayer before the end 
of the identification period, and
    (B) Any replacement property identified before the end of the 
identification period and received before the end of the exchange 
period, but only if the taxpayer receives before the end of the exchange 
period identified replacement property the fair market vlaue of which is 
at least 95 percent of the aggregate fair market value of all identified 
replacement properties (the ``95-percent rule'').

For this purpose, the fair market value of each identified replacement 
property is determined as of the earlier of the date the property is 
received by the taxpayer or the last day of the exchange period.
    (iii) For purposes of applying the 3-property rule, the 200-percent 
rule, and the 95-percent rule, all identifications of replacement 
property, other than identifications of replacement property that have 
been revoked in the manner provided in paragraph (c)(6) of this section, 
are taken into account. For example, if, in a deferred exchange, B 
transfers property X with a fair market value of $100,000 to C and B 
receives like-kind property Y with a fair market value of $50,000 before 
the end of the identification period, under paragraph (c)(1) of this 
section, property Y is treated as identified by reason of being received 
before the end of the identification period. Thus, under paragraph 
(c)(4)(i) of this section, B may identify either two additional 
replacement properties of any fair market

[[Page 125]]

value or any number of additional replacement properties as long as the 
aggregate fair market value of the additional replacement properties 
does not exceed $150,000.
    (5) Incidental property disregarded. (i) Solely for purposes of 
applying this paragraph (c), property that is incidental to a larger 
item of property is not treated as property that is separate from the 
larger item of property. Property is incidental to a larger item of 
property if--
    (A) In standard commercial transactions, the property is typically 
transferred together with the larger item of property, and
    (B) The aggregate fair market value of all of the incidental 
property does not exceed 15 percent of the aggregate fair market value 
of the larger item of property.
    (ii) This paragraph (c)(5) may be illustrated by the following 
examples.

    Example 1. For purposes of paragraph (c) of this section, a spare 
tire and tool kit will not be treated as separate property from a truck 
with a fair market value of $10,000, if the aggregate fair market value 
of the spare tire and tool kit does not exceed $1,500. For purposes of 
the 3-property rule, the truck, spare tire, and tool kit are treated as 
1 property. Moreover, for purposes of paragraph (c)(3) of this section 
(relating to the description of replacement property), the truck, spare 
tire, and tool kit are all considered to be unambiguously described if 
the make, model, and year of the truck are specified, even if no 
reference is made to the spare tire and tool kit.
    Example 2. For purposes of paragraph (c) of this section, furniture, 
laundry machines, and other miscellaneous items of personal property 
will not be treated as separate property from an apartment building with 
a fair market value of $1,000,000, if the aggregate fair market value of 
the furniture, laundry machines, and other personal property does not 
exceed $150,000. For purposes of the 3-property rule, the apartment 
building, furniture, laundry machines, and other personal property are 
treated as 1 property. Moreover, for purposes of paragraph (c)(3) of 
this section (relating to the description of replacement property), the 
apartment building, furniture, laundry machines, and other personal 
property are all considered to be unambiguously described if the legal 
description, street address, or distinguishable name of the apartment 
building is specified, even if no reference is made to the furniture, 
laundry machines, and other personal property.

    (6) Revocation of identification. An identification of replacement 
property may be revoked at any time before the end of the identification 
period. An identification of replacement property is revoked only if the 
revocation is made in a written document signed by the taxpayer and hand 
delivered, mailed, telecopied, or othewise sent before the end of the 
identification period to the person to whom the identification of the 
replacement property was sent. An identification of replacement property 
that is made in a written agreement for the exchange of properties is 
treated as revoked only if the revocation is made in a written amendment 
to the agreement or in a written document signed by the taxpayer and 
hand delivered, mailed, telecopied, or othewise sent before the end of 
the identification period to all of the parties to the agreement.
    (7) Examples. This paragraph (c) may be illustrated by the following 
examples. Unless otherwise provided in an example, the following facts 
are assumed: B, a calendar year taxpayer, and C agree to enter into a 
deferred exchange. Pursuant to their agreement, B transfers real 
property X to C on May 17, 1991. Real property X, which has been held by 
B for investment, is unencumbered and has a fair market value on May 17, 
1991, of $100,000. On or before July 1, 1991 (the end of the 
identification period), B is to identify replacement property that is of 
a like kind to real property X. On or before November 13, 1991 (the end 
of the exchange period), C is required to purchase the property 
identified by B and to transfer that property to B. To the extent the 
fair market value of the replacement property transferred to B is 
greater or less than the fair market value of real property X, either B 
or C, as applicable, will make up the difference by paying cash to the 
other party after the date the replacement property is received by B. No 
replacement property is identified in the agreement. When subsequently 
identified, the replacement property is described by legal description 
and is of a like kind to real property X (determined without regard to 
section 1031(a)(3) and this section). B intends to

[[Page 126]]

hold the replacement property received for investment.

    Example 1. (i) On July 2, 1991, B identifies real property E as 
replacement property by designating real property E as replacement 
property in a written document signed by B and personally delivered to 
C.
    (ii) Because the identification was made after the end of the 
identification period, pursuant to paragraph (b)(1)(i) of this section 
(relating to the identification requirement), real property E is treated 
as property which is not of a like kind to real property X.
    Example 2. (i) C is a corporation of which 20 percent of the 
outstanding stock is owned by B. On July 1, 1991, B identifies real 
property F as replacement property by designating real property F as 
replacement property in a written document signed by B and mailed to C.
    (ii) Because C is the person obligated to transfer the replacement 
property to B, real property F is identified before the end of the 
identification period. The fact that C is a ``disqualified person'' as 
defined in paragraph (k) of this section does not change this result.
    (iii) Real property F would also have been treated as identified 
before the end of the identification period if, instead of sending the 
identification to C, B had designated real property F as replacement 
property in a written agreement for the exchange of properties signed by 
all parties thereto on or before July 1, 1991.
    Example 3. (i) On June 3, 1991, B identifies the replacement 
property as ``unimproved land located in Hood County with a fair market 
value not to exceed $100,000.'' The designation is made in a written 
document signed by B and personally delivered to C. On July 8, 1991, B 
and C agree that real property G is the property described in the June 
3, 1991 document.
    (ii) Because real property G was not unambiguously described before 
the end of the identification period, no replacement property is 
identified before the end of the identification period.
    Example 4. (i) On June 28, 1991, B identifies real properties H, J, 
and K as replacement properties by designating these properties as 
replacement properties in a written document signed by B and personally 
delivered to C. The written document provides that by August 1, 1991, B 
will orally inform C which of the identified properties C is to transfer 
to B. As of July 1, 1991, the fair market values of real properties H, 
J, and K are $75,000, $100,000, and $125,000, respectively.
    (ii) Because B did not identify more than three properties as 
replacement properties, the requirements of the 3-property rule are 
satisfied, and real properties H, J, and K are all identified before the 
end of the identification period.
    Example 5. (i) On May 17, 1991, B identifies real properties L, M, 
N, and P as replacement properties by designating these properties as 
replacement properties in a written document signed by B and personally 
delivered to C. The written document provides that by July 2, 1991, B 
will orally inform C which of the identified properties C is to transfer 
to B. As of July 1, 1991, the fair market values of real properties L, 
M, N, and P are $30,000, $40,000, $50,000, and $60,000, respectively.
    (ii) Although B identified more than three properties as replacement 
properties, the aggregate fair market value of the identified properties 
as of the end of the identification period ($180,000) did not exceed 200 
percent of the aggregate fair market value of real property X (200% x 
$100,000 = $200,000). Therefore, the requirements of the 200-percent 
rule are satisfied, and real properties L, M, N, and P are all 
identified before the end of the identification period.
    Example 6. (i) On June 21, 1991, B identifies real properties Q, R, 
and S as replacement properties by designating these properties as 
replacement properties in a written document signed by B and mailed to 
C. On June 24, 1991, B identifies real properties T and U as replacement 
properties in a written document signed by B and mailed to C. On June 
28, 1991, B revokes the identification of real properties Q and R in a 
written document signed by B and personally delivered to C.
    (ii) B has revoked the identification of real properties Q and R in 
the manner provided by paragraph (c)(6) of this section. Identifications 
of replacement property that have been revoked in the manner provided by 
paragraph (c)(6) of this section are not taken into account for purposes 
of applying the 3-property rule. Thus, as of June 28, 1991, B has 
identified only replacement properties S, T, and U for purposes of the 
3-property rule. Because B did not identify more than three properties 
as replacement properties for purposes of the 3-property rule, the 
requirements of that rule are satisfied, and real properties S, T, and U 
are all identified before the end of the identification period.
    Example 7. (i) On May 20, 1991, B identifies real properties V and W 
as replacement properties by designating these properties as replacement 
properties in a written document signed by B and personally delivered to 
C. On June 4, 1991, B identifies real properties Y and Z as replacement 
properties in the same manner. On June 5, 1991, B telephones C and 
orally revokes the identification of real properties V and W. As of July 
1, 1991, the fair market values of real properties V, W, Y, and Z are 
$50,000, $70,000, $90,000, and $100,000, respectively. On July 31, 1991, 
C purchases real property Y and Z and transfers them to B.

[[Page 127]]

    (ii) Pursuant to paragraph (c)(6) of this section (relating to 
revocation of identification), the oral revocation of the identification 
of real properties V and W is invalid. Thus, the identification of real 
properties V and W is taken into account for purposes of determining 
whether the requirements of paragraph (c)(4) of this section (relating 
to the identification of alternative and multiple properties) are 
satisfied. Because B identified more than three properties and the 
aggregate fair market value of the identified properties as of the end 
of the identification period ($310,000) exceeds 200 percent of the fair 
market value of real property X (200% x $100,000 = $200,000), the 
requirements of paragraph (c)(4) of this section are not satisfied, and 
B is treated as if B did not identify any replacement property.

    (d) Receipt of identified replacement property--(1) In general. For 
purposes of paragraph (b)(1)(ii) of this section (relating to the 
receipt requirement), the identified replacement property is received 
before the end of the exchange period only if the requriements of this 
paragraph (d) are satisfied with respect to the replacement property. In 
the case of a deferred exchange, the identified replacement property is 
received before the end of the exchange period if--
    (i) The taxpayer receives the replacement property before the end of 
the exchange period, and
    (ii) The replacement property received is substantially the same 
property as identified.

If the taxpayer has identified more than one replacement property, 
section 1031(a)(3)(B) and this paragraph (d) are applied separately to 
each replacement property.
    (2) Examples. This paragraph (d) may be illustrated by the following 
examples. The following facts are assumed: B, a calendar year taxpayer, 
and C agree to enter into a deferred exchange. Pursuant to their 
agreement, B transfers real property X to C on May 17, 1991. Real 
property X, which has been held by B for investment, is unencumbered and 
has a fair market value on May 17, 1991, of $100,000. On or before July 
1, 1991 (the end of the identification period), B is to identify 
replacement property that is of a like kind to real property X. On or 
before November 13, 1991 (the end of the exchange period), C is required 
to purchase the property identified by B and to transfer that property 
to B. To the extent the fair market value of the replacement property 
transferred to B is greater or less than the fair market value of real 
property X, either B or C, as applicable, will make up the difference by 
paying cash to the other party after the date the replacement property 
is received by B. The replacement property is identified in a manner 
that satisfies paragraph (c) of this section (relating to identification 
of replacement property) and is of a like kind to real property X 
(determined without regard to section 1031(a)(3) and this section). B 
intends to hold any replacement property received for investment.

    Example 1. (i) In the agreement, B identifies real properties J, K, 
and L as replacement properties. The agreement provides that by July 26, 
1991, B will orally inform C which of the properties C is to transfer to 
B.
    (ii) As of July 1, 1991, the fair market values of real properties 
J, K, and L are $75,000, $100,000, and $125,000, respectively. On July 
26, 1991, B instructs C to acquire real property K. On October 31, 1991, 
C purchases real property K for $100,000 and transfers the property to 
B.
    (iii) Because real property K was identified before the end of the 
identification period and was received before the end of the exchange 
period, the identification and receipt requirements of section 
1031(a)(3) and this section are satisfied with respect to real property 
K.
    Example 2. (i) In the agreement, B identifies real property P as 
replacement property. Real property P consists of two acres of 
unimproved land. On October 15, 1991, the owner of real property P 
erects a fence on the property. On November 1, 1991, C purchases real 
property P and transfers it to B.
    (ii) The erection of the fence on real property P subsequent to its 
identification did not alter the basic nature or character of real 
property P as unimproved land. B is considered to have received 
substantially the same property as identified.
    Example 3. (i) In the agreement, B identifies real property Q as 
replacement property. Real property Q consists of a barn on two acres of 
land and has a fair market value of $250,000 ($187,500 for the barn and 
underlying land and $62,500 for the remaining land). As of July 26, 
1991, real property Q remains unchanged and has a fair market value of 
$250,000. On that date, at B's direction, C purchases the barn and 
underlying land for $187,500 and transfers it to B, and B pays $62,500 
to C.
    (ii) The barn and underlying land differ in basic nature or 
character from real property

[[Page 128]]

Q as a whole, B is not considered to have received substantially the 
same property as identified.
    Example 4. (i) In the agreement, B identifies real property R as 
replacement property. Real property R consists of two acres of 
unimproved land and has a fair market value of $250,000. As of October 
3, 1991, real property R remains unimproved and has a fair market value 
of $250,000. On that date, at B's direction, C purchases 1\1/2\ acres of 
real property R for $187,500 and transfers it to B, and B pays $62,500 
to C.
    (ii) The portion of real property R that B received does not differ 
from the basic nature or character of real property R as a whole. 
Moreover, the fair market value of the portion of real property R that B 
received ($187,500) is 75 percent of the fair market value of real 
property R as of the date of receipt. Accordingly, B is considered to 
have received substantially the same property as identified.

    (e) Special rules for identification and receipt of replacement 
property to be produced--(1) In general. A transfer of relinquished 
property in a deferred exchange will not fail to qualify for 
nonrecognition of gain or loss under section 1031 merely because the 
replacement property is not in existence or is being produced at the 
time the property is identified as replacement property. For purposes of 
this paragraph (e), the terms ``produced'' and ``production'' have the 
same meanings as provided in section 263A(g)(1) and the regulations 
thereunder.
    (2) Identification of replacement property to be produced. (i) In 
the case of replacement property that is to be produced, the replacement 
property must be identified as provided in paragraph (c) of this section 
(relating to identification of replacement property). For example, if 
the identified replacement property consists of improved real property 
where the improvements are to be constructed, the description of the 
replacement property satisfies the requirements of paragraph (c)(3) of 
this section (relating to description of replacement property) if a 
legal description is provided for the underlying land and as much detail 
is provided regarding construction of the improvements as is practicable 
at the time the identification is made.
    (ii) For purposes of paragraphs (c)(4)(i)(B) and (c)(5) of this 
section (relating to the 200-percent rule and incidental property), the 
fair market value of replacement property that is to be produced is its 
estimated fair market value as of the date it is expected to be received 
by the taxpayer.
    (3) Receipt of replacement property to be produced. (i) For purposes 
of paragraph (d)(1)(ii) of this section (relating to receipt of the 
identified replacement property), in determining whether the replacement 
property received by the taxpayer is substantially the same property as 
identified where the identified replacement property is property to be 
produced, variations due to usual or typical production changes are not 
taken into account. However, if substantial changes are made in the 
property to be produced, the replacement property received will not be 
considered to be substantially the same property as identified.
    (ii) If the identified replacement property is personal property to 
be produced, the replacement property received will not be considered to 
be substantially the same property as identified unless production of 
the replacement property received is completed on or before the date the 
property is received by the taxpayer.
    (iii) If the identified replacement property is real property to be 
produced and the production of the property is not completed on or 
before the date the taxpayer receives the property, the property 
received will be considered to be substantially the same property as 
identified only if, had production been completed on or before the date 
the taxpayer receives the replacement property, the property received 
would have been considered to be substantially the same property as 
identified. Even so, the property received is considered to be 
substantially the same property as identified only to the extent the 
property received constitutes real property under local law.
    (4) Additional rules. The transfer of relinquished property is not 
within the provisions of section 1031(a) if the relinquished property is 
transferred in exchange for services (including production services). 
Thus, any additional production occurring with respect to the 
replacement property after the property is received by the taxpayer

[[Page 129]]

will not be treated as the receipt of property of a like kind.
    (5) Example. This paragraph (e) may be illustrated by the following 
example.

    Example: (i) B, a calendar year taxpayer, and C agree to enter into 
a deferred exchange. Pursuant to their agreement, B transfers improved 
real property X and personal property Y to C on May 17, 1991. On or 
before November 13, 1991 (the end of the exchange period), C is required 
to transfer to B real property M, on which C is constructing 
improvements, and personal property N, which C is producing. C is 
obligated to complete the improvements and production regardless of when 
properties M and N are transferred to B. Properties M and N are 
identified in a manner that satisfies paragraphs (c) (relating to 
identification of replacement property) and (e)(2) of this section. In 
addition, properties M and N are of a like kind, respectively, to real 
property X and personal property Y (determined without regard to section 
1031(a)(3) and this section). On November 13, 1991, when construction of 
the improvements to property M is 20 percent completed and the 
production of property N is 90 percent completed, C transfers to B 
property M and property N. If construction of the improvements had been 
completed, property M would have been considered to be substantially the 
same property as identified. Under local law, property M constitutes 
real property to the extent of the underlying land and the 20 percent of 
the construction that is completed.
    (ii) Because property N is personal property to be produced and 
production of property N is not completed before the date the property 
is received by B, property N is not considered to be substantially the 
same property as identified and is treated as property which is not of a 
like kind to property Y.
    (iii) Property M is considered to be substantially the same property 
as identified to the extent of the underlying land and the 20 percent of 
the construction that is completed when property M is received by B. 
However, any additional construction performed by C with respect to 
property M after November 13, 1991, is not treated as the receipt of 
property of a like kind.

    (f) Receipt of money or other property--(1) In general. A transfer 
of relinquished property in a deferred exchange is not within the 
provisions of section 1031(a) if, as part of the consideration, the 
taxpayer receives money or other property. However, such a transfer, if 
otherwise qualified, will be within the provisions of either section 
1031 (b) or (c). See Sec.  1.1031(a)-1(a)(2). In addition, in the case 
of a transfer of relinquished property in a deferred exchange, gain or 
loss may be recognized if the taxpayer actually or constructively 
receives money or other property before the taxpayer actually receives 
like-kind replacement property. If the taxpayer actually or 
constructively receives money or other property in the full amount of 
the consideration for the relinquished property before the taxpayer 
actually receives like-kind replacement property, the transaction will 
constitute a sale and not a deferred exchange, even though the taxpayer 
may ultimately receive like-kind replacement property.
    (2) Actual and constructive receipt. Except as provided in paragraph 
(g) of this section (relating to safe harbors), for purposes of section 
1031 and this section, the determination of whether (or the extent to 
which) the taxpayer is in actual or constructive receipt of money or 
other property before the taxpayer actually receives like-kind 
replacement property is made under the general rules concerning actual 
and constructive receipt and without regard to the taxpayer's method of 
accounting. The taxpayer is in actual receipt of money or property at 
the time the taxpayer actually receives the money or property or 
receives the economic benefit of the money or property. The taxpayer is 
in constructive receipt of money or property at the time the money or 
property is credited to the taxpayer's account, set apart for the 
taxpayer, or otherwise made available so that the taxpayer may draw upon 
it at any time or so that the taxpayer can draw upon it if notice of 
intention to draw is given. Although the taxpayer is not in constructive 
receipt of money or property if the taxpayer's control of its receipt is 
subject to substantial limitations or restrictions, the taxpayer is in 
constructive receipt of the money or property at the time the 
limitations or restrictions lapse, expire, or are waived. In addition, 
actual or constructive receipt of money or property by an agent of the 
taxpayer (determined without regard to paragraph (k) of this section) is 
actual or constructive receipt by the taxpayer.

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    (3) Example. This paragraph (f) may be illustrated by the following 
example.

    Example: (i) B, a calendar year taxpayer, and C agree to enter into 
a deferred exchange. Pursuant to the agreement, on May 17, 1991, B 
transfers real property X to C. Real property X, which has been held by 
B for investment, is unencumbered and has a fair market value on May 17, 
1991, of $100,000. On or before July 1, 1991 (the end of the 
identification period), B is to identify replacement property that is of 
a like kind to real property X. On or before November 13, 1991 (the end 
of the exchange period), C is required to purchase the property 
identified by B and to transfer that property to B. At any time after 
May 17, 1991, and before C has purchased the replacement property, B has 
the right, upon notice, to demand that C pay $100,000 in lieu of 
acquiring and transferring the replacement property. Pursuant to the 
agreement, B identifies replacement property, and C purchases the 
replacement property and transfers it to B.
    (ii) Under the agreement, B has the unrestricted right to demand the 
payment of $100,000 as of May 17, 1991. B is therefore in constructive 
receipt of $100,000 on that date. Because B is in constructive receipt 
of money in the full amount of the consideration for the relinquished 
property before B actually receives the like-kind replacement property, 
the transaction constitutes a sale, and the transfer of real property X 
does not qualify for nonrecognition of gain or loss under section 1031. 
B is treated as if B received the $100,000 in consideration for the sale 
of real property X and then purchased the like-kind replacement 
property.
    (iii) If B's right to demand payment of the $100,000 were subject to 
a substantial limitation or restriction (e.g., the agreement provided 
that B had no right to demand payment before November 14, 1991 (the end 
of the exchange period)), then, for purposes of this section, B would 
not be in actual or constructive receipt of the money unless (or until) 
the limitation or restriction lapsed, expired, or was waived.

    (g) Safe harbors--(1) In general. Paragraphs (g)(2) through (g)(5) 
of this section set forth four safe harbors the use of which will result 
in a determination that the taxpayer is not in actual or constructive 
receipt of money or other property for purposes of section 1031 and this 
section. More than one safe harbor can be used in the same deferred 
exchange, but the terms and conditions of each must be separately 
satisfied. For purposes of the safe harbor rules, the term ``taxpayer'' 
does not include a person or entity utilized in a safe harbor (e.g., a 
qualified intermediary). See paragraph (g)(8), Example 3(v), of this 
section.
    (2) Security or guarantee arrangements. (i) In the case of a 
deferred exchange, the determination of whether the taxpayer is in 
actual or constructive receipt of money or other property before the 
taxpayer actually receives like-kind replacement property will be made 
without regard to the fact that the obligation of the taxpayer's 
transferee to transfer the replacement property to the taxpayer is or 
may be secured or guaranteed by one or more of the following--
    (A) A mortgage, deed of trust, or other security interest in 
property (other than cash or a cash equivalent),
    (B) A standby letter of credit which satisfies all of the 
requirements of Sec.  15A.453-1 (b)(3)(iii) and which may not be drawn 
upon in the absence of a default of the transferee's obligation to 
transfer like-kind replacement property to the taxpayer, or
    (C) A guarantee of a third party.
    (ii) Paragraph (g)(2)(i) of this section ceases to apply at the time 
the taxpayer has an immediate ability or unrestricted right to receive 
money or other property pursuant to the security or guarantee 
arrangement.
    (3) Qualified escrow accounts and qualified trusts. (i) In the case 
of a deferred exchange, the determination of whether the taxpayer is in 
actual or constructive receipt of money or other property before the 
taxpayer actually receives like-kind replacement property will be made 
without regard to the fact that the obligation of the taxpayer's 
transferee to transfer the replacement property to the taxpayer is or 
may be secured by cash or a cash equivalent if the cash or cash 
equivalent is held in a qualified escrow account or in a qualified 
trust.
    (ii) A qualified escrow account is an escrow account wherein--
    (A) The escrow holder is not the taxpayer or a disqualified person 
(as defined in paragraph (k) of this section), and
    (B) The escrow agreement expressly limits the taxpayer's rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the cash or 
cash equivalent

[[Page 131]]

held in the escrow account as provided in paragraph (g)(6) of this 
section.
    (iii) A qualified trust is a trust wherein--
    (A) The trustee is not the taxpayer or a disqualified person (as 
defined in paragraph (k) of this section, except that for this purpose 
the relationship between the taxpayer and the trustee created by the 
qualified trust will not be considered a relationship under section 
267(b)), and
    (B) The trust agreement expressly limits the taxpayer's rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the cash or 
cash equivalent held by the trustee as provided in paragraph (g)(6) of 
this section.
    (iv) Paragraph (g)(3)(i) of this section ceases to apply at the time 
the taxpayer has an immediate ability or unrestricted right to receive, 
pledge, borrow, or otherwise obtain the benefits of the cash or cash 
equivalent held in the qualified escrow account or qualified trust. 
Rights conferred upon the taxpayer under state law to terminate or 
dismiss the escrow holder of a qualified escrow account or the trustee 
of a qualified trust are disregarded for this purpose.
    (v) A taxpayer may receive money or other property directly from a 
party to the exchange, but not from a qualified escrow account or a 
qualified trust, without affecting the application of paragraph 
(g)(3)(i) of this section.
    (4) Qualified intermediaries. (i) In the case of a taxpayer's 
transfer of relinquished property involving a qualified intermediary, 
the qualified intermediary is not considered the agent of the taxpayer 
for purposes of section 1031(a). In such a case, the taxpayer's transfer 
of relinquished property and subsequent receipt of like-kind replacement 
property is treated as an exchange, and the determination of whether the 
taxpayer is in actual or constructive receipt of money or other property 
before the taxpayer actually receives like-kind replacement property is 
made as if the qualified intermediary is not the agent of the taxpayer.
    (ii) Paragraph (g)(4)(i) of this section applies only if the 
agreement between the taxpayer and the qualified intermediary expressly 
limits the taxpayer's rights to receive, pledge, borrow, or otherwise 
obtain the benefits of money or other property held by the qualified 
intermediary as provided in paragraph (g)(6) of this section.
    (iii) A qualified intermediary is a person who--
    (A) Is not the taxpayer or a disqualified person (as defined in 
paragraph (k) of this section), and
    (B) Enters into a written agreement with the taxpayer (the 
``exchange agreement'') and, as required by the exchange agreement, 
acquires the relinquished property from the taxpayer, transfers the 
relinquished property, acquires the replacement property, and transfers 
the replacement property to the taxpayer.
    (iv) Regardless of whether an intermediary acquires and transfers 
property under general tax principals, solely for purposes of paragraph 
(g)(4)(iii)(B) of this section--
    (A) An intermediary is treated as acquiring and transferring 
property if the intermediary acquires and transfers legal title to that 
property,
    (B) An intermediary is treated as acquiring and transferring the 
relinquished property if the intermediary (either on its own behalf or 
as the agent of any party to the transaction) enters into an agreement 
with a person other than the taxpayer for the transfer of the 
relinquished property to that person and, pursuant to that agreement, 
the relinquished property is transferred to that person, and
    (C) An intermediary is treated as acquiring and transferring 
replacement property if the intermediary (either on its own behalf or as 
the agent of any party to the transaction) enters into an agreement with 
the owner of the replacement property for the transfer of that property 
and, pursuant to that agreement, the replacement property is transferred 
to the taxpayer.
    (v) Solely for purposes of paragraphs (g)(4)(iii) and (g)(4)(iv) of 
this section, an intermediary is treated as entering into an agreement 
if the rights of a party to the agreement are assigned to the 
intermediary and all parties to that agreement are notified in writing 
of the assignment on or before the date of the relevent transfer of 
property. For example, if a taxpayer enters into

[[Page 132]]

an agreement for the transfer of relinquished property and thereafter 
assigns its rights in that agreement to an intermediary and all parties 
to that agreement are notified in writing of the assignment on or before 
the date of the transfer of the relinquished property, the intermediary 
is treated as entering into that agreement. If the relinquished property 
is transferred pursuant to that agreement, the intermediary is treated 
as having acquired and transferred the relinquished property.
    (vi) Paragraph (g)(4)(i) of this section ceases to apply at the time 
the taxpayer has an immediate ability or unrestricted right to receive, 
pledge, borrow, or otherwise obtain the benefits of money or other 
property held by the qualified intermediary. Rights conferred upon the 
taxpayer under state law to terminate or dismiss the qualified 
intermediary are disregarded for this purpose.
    (vii) A taxpayer may receive money or other property directly from a 
party to the transaction other than the qualified intermediary without 
affecting the application of paragraph (g)(4)(i) of this section.
    (5) Interest and growth factors. In the case of a deferred exchange, 
the determination of whether the taxpayer is in actual or constructive 
receipt of money or other property before the taxpayer actually receives 
the like-kind replacement property will be made without regard to the 
fact that the taxpayer is or may be entitled to receive any interest or 
growth factor with respect to the deferred exchange. The preceding 
sentence applies only if the agreement pursuant to which the taxpayer is 
or may be entitled to the interest or growth factor expressly limits the 
taxpayer's rights to receive the interest or growth factor as provided 
in paragragh (g)(6) of this section. For additional rules concerning 
interest or growth factors, see paragraph (h) of this section.
    (6) Additional restrictions on safe harbors under paragraphs (g)(3) 
through (g)(5). (i) An agreement limits a taxpayer's rights as provided 
in this paragraph (g)(6) only if the agreement provides that the 
taxpayer has no rights, except as provided in paragraph (g)(6)(ii) and 
(g)(6)(iii) of this section, to receive, pledge, borrow, or otherwise 
obtain the benefits of money or other property before the end of the 
exchange period.
    (ii) The agreement may provide that if the taxpayer has not 
identified replacement property by the end of the identification period, 
the taxpayer may have rights to receive, pledge, borrow, or othewise 
obtain the benefits of money or other property at any time after the end 
of the identification period.
    (iii) The agreement may provide that if the taxpayer has identified 
replacement property, the taxpayer may have rights to receive, pledge, 
borrow, or otherwise obtain the benefits of money or other property upon 
or after--
    (A) The receipt by the taxpayer of all of the replacement property 
to which the taxpayer is entitled under the exchange agreement, or
    (B) The occurrence after the end of the identification period of a 
material and substantial contingency that--
    (1) Relates to the deferred exchange,
    (2) Is provided for in writing, and
    (3) Is beyond the control of the taxpayer and of any disqualified 
person (as defined in paragraph (k) of this section), other than the 
person obligated to transfer the replacement property to the taxpayer.
    (7) Items disregarded in applying safe harbors under paragraphs 
(g)(3) through (g)(5). In determining whether a safe harbor under 
paragraphs (g)(3) through (g)(5) of this section ceases to apply and 
whether the taxpayer's rights to receive, pledge, borrow, or otherwise 
obtain the benefits of money or other property are expressly limited as 
provided in paragraph (g)(6) of this section, the taxpayer's receipt of 
or right to receive any of the following items will be disregarded--
    (i) Items that a seller may receive as a consequence of the 
disposition of property and that are not included in the amount realized 
from the disposition of property (e.g., prorated rents);
    (ii) Transactional items that relate to the disposition of the 
relinquished property or to the acquisition of the replacement property 
and appear under local standards in the typical closing statements as 
the responsibility of a

[[Page 133]]

buyer or seller (e.g., commissions, prorated taxes, recording or 
transfer taxes, and title company fees); and
    (iii) Personal property generally resulting in gain recognition 
under section 1031(b) that is incidental to real property acquired in an 
exchange. For purposes of this paragraph (g)(7), personal property is 
incidental to real property acquired in an exchange if--
    (A) In standard commercial transactions, the personal property is 
typically transferred together with the real property; and
    (B) The aggregate fair market value of the property described in 
paragraph (g)(7)(iii)(A) of this section transferred with the real 
property does not exceed 15 percent of the aggregate fair market value 
of the replacement real property or properties received in the exchange.
    (8) Examples. This paragraph (g) may be illustrated by the following 
examples. Unless otherwise provided in an example, the following facts 
are assumed: B, a calendar year taxpayer, and C agree to enter into a 
deferred exchange. Pursuant to their agreement, B is to transfer real 
property X to C on May 17, 1991. Real property X, which has been held by 
B for investment, is unencumbered and has a fair market value on May 17, 
1991, of $100,000. On or before July 1, 1991 (the end of the 
identification period), B is to identify replacement property that is of 
a like kind to real property X. On or before November 13, 1991 (the end 
of the exchange period), C is required to purchase the property 
identified by B and to transfer that property to B. To the extent the 
fair market value of the replacement property transferred to B is 
greater or less than the fair market value property X, either B or C, as 
applicable, will make up the difference by paying cash to the other 
party after the date the replacement property is received by B. The 
replacement property is identified as provided in paragraph (c) of this 
section (relating to identification of replacement property) and is of a 
like kind to real property X (determined without regard to section 
1031(a)(3) and this section). B intends to hold any replacement property 
received for investment.
    (i) Example 1.(A) On May 17, 1991, B transfers real property X to C. 
On the same day, C pays $10,000 to B and deposits $90,000 in escrow as 
security for C's obligation to perform under the agreement. The escrow 
agreement provides that B has no rights to receive, pledge, borrow, or 
otherwise obtain the benefits of the money in escrow before November 14, 
1991, except that:
    (1) if B fails to identify replacement property on or before July 1, 
1991, B may demand the funds in escrow at any time after July 1, 1991; 
and
    (2) if B identifies and receives replacement property, then B may 
demand the balance of the remaining funds in escrow at any time after B 
has received the replacement property.
    (3) The funds in escrow may be used to purchase the replacement 
property. The escrow holder is not a disqualified person as defined in 
paragraph (k) of this section. Pursuant to the terms of the agreement, B 
identifies replacement property, and C purchases the replacement 
property using the funds in escrow and tranfers the replacement property 
to B.
    (B) C's obligation to transfer the replacement property to B was 
secured by cash held in a qualified escrow account because the escrow 
holder was not a disqualified person and the escrow agreement expressly 
limited B's rights to receive, pledge, borrow, or otherwise obtain the 
benefits of the money in escrow as provided in paragraph (g)(6) of this 
section. In addition, B did not have the immediate ability or 
unrestricted right to receive money or other property in escrow before B 
actually received the like-kind replacement property. Therefore, for 
purposes of section 1031 and this section, B is determined not to be in 
actual or constructive receipt of the $90,000 held in escrow before B 
received the like-kind replacement property. The transfer of real 
property X by B and B's acquisition of the replacement property qualify 
as an exchange under section 1031. See paragraph (j) of this section for 
determining the amount of gain or loss recognized.
    (ii) Example 2. (A) On May 17, 1991, B transfers real property X to 
C, and C deposits $100,000 in escrow as security for C's obligation to 
perform under the agreement. Also on May 17, B identifies

[[Page 134]]

real property J as replacement property. The escrow agreement provides 
that no funds may be paid out without prior written approval of both B 
and C. The escrow agreement also provides that B has no rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the money 
in escrow before November 14, 1991, except that:
    (1) B may demand the funds in escrow at any time after the later of 
July 1, 1991, and the occurrence of any of the following events--
    (i) real property J is destroyed, seized, requisitioned, or 
condemned, or
    (ii) a determination is made that the regulatory approval necessary 
for the transfer of real property J cannot be obtained in time for real 
property J to be transferred to B before the end of the exchange period;
    (2) B may demand the funds in escrow at any time after August 14, 
1991, if real property J has not been rezoned from residential to 
commercial use by that date; and
    (3) B may demand the funds in escrow at the time B receives real 
property J or any time thereafter.
    (4) Otherwise, B is entitled to all funds in escrow after November 
13, 1991. The funds in escrow may be used to purchase the replacement 
property. The escrow holder is not a disqualified person as described in 
paragraph (k) of this section. Real property J is not rezoned from 
residential to commercial use on or before August 14, 1991.
    (B) C's obligation to transfer the replacement property to B was 
secured by cash held in a qualified escrow account because the escrow 
holder was not a disqualified person and the escrow agreement expressly 
limited B's rights to receive, pledge, borrow, or otherwise obtain the 
benefits of the money in escrow as provided in paragraph (g)(6) of this 
section. From May 17, 1991, until August 15, 1991, B did not have the 
immediate ability or unrestricted right to receive money or other 
property before B actually received the like-kind replacement property. 
Therefore, for purposes of section 1031 and this section, B is 
determined not to be in actual or constructive receipt of the $100,000 
in escrow from May 17, 1991, until August 15, 1991. However, on August 
15, 1991, B had the unrestricted right, upon notice, to draw upon the 
$100,000 held in escrow. Thus, the safe harbor ceased to apply and B was 
in constructive receipt of the funds held in escrow. Because B 
constructively received the full amount of the consideration ($100,000) 
before B actually received the like-kind replacement property, the 
transaction is treated as a sale and not as a deferred exchange. The 
result does not change even if B chose not to demand the funds in escrow 
and continued to attempt to have real property J rezoned and to receive 
the property on or before November 13, 1991.
    (C) If real property J had been rezoned on or before August 14, 
1991, and C had purchased real property J and transferred it to B on or 
before November 13, 1991, the transaction would have qualified for 
nonrecognition of gain or loss under section 1031(a).
    (iii) Example 3. (A) On May 1, 1991, D offers to purchase real 
property X for $100,000. However, D is unwilling to participate in a 
like-kind exchange. B thus enters into an exchange agreement with C 
whereby B retains C to facilitate an exchange with respect to real 
property X. C is not a disqualified person as described in paragraph (k) 
of this section. The exchange agreement between B and C provides that B 
is to execute and deliver a deed conveying real property X to C who, in 
turn, is to execute and deliver a deed conveying real property X to D. 
The exchange agreement expressly limits B's rights to receive, pledge, 
borrow, or otherwise obtain the benefits of money or other property held 
by C as provided in paragraph (g)(6) of this section. On May 3, 1991, C 
enters into an agreement with D to transfer real property X to D for 
$100,000. On May 17, 1991, B executes and delivers to C a deed conveying 
real property X to C. On the same date, C executes and delivers to D a 
deed conveying real property X to D, and D deposits $100,000 in escrow. 
The escrow holder is not a disqualified person as defined in paragraph 
(k) of this section and the escrow agreement expressly limits B's rights 
to receive, pledge, borrow, or otherwise obtain the benefits of money or 
other property in escrow as provided in paragraph (g)(6) of this 
section. However, the escrow

[[Page 135]]

agreement provides that the money in escrow may be used to purchase 
replacement property. On June 3, 1991, B identifies real property K as 
replacement property. On August 9, 1991, E executes and delivers to C a 
deed conveying real property K to C and $80,000 is released from the 
escrow and paid to E. On the same date, C executes and delivers to B a 
deed conveying real property K to B, and the escrow holder pays B 
$20,000, the balance of the $100,000 sale price of real property X 
remaining after the purchase of real property K for $80,000.
    (B) B and C entered into an exchange agreement that satisfied the 
requirements of paragraph (g)(4)(iii)(B) of this section. Regardless of 
whether C may have acquired and transferred real property X under 
general tax principles, C is treated as having acquired and transferred 
real property X because C acquired and transferred legal title to real 
property X. Similarly, C is treated as having acquired and transferred 
real property K because C acquired and transferred legal title to real 
property K. Thus, C was a qualified intermediary. This result is reached 
for purposes of this section regardless of whether C was B's agent under 
state law.
    (C) Because the escrow holder was not a disqualified person and the 
escrow agreement expressly limited B's rights to receive, pledge, 
borrow, or otherwise obtain the benefits of money or other property in 
escrow as provided in paragraph (g)(6) of this section, the escrow 
account was a qualified escrow account. For purposes of section 1031 and 
this section, therefore, B is determined not to be in actual or 
constructive receipt of the funds in escrow before B received real 
property K.
    (D) The exchange agreement between B and C expressly limited B's 
rights to receive, pledge, borrow, or otherwise obtain the benefits of 
any money held by C as provided in paragraph (g)(6) of this section. 
Because C was a qualified intermediary, for purposes of section 1031 and 
this section B is determined not to be in actual or constructive receipt 
of any funds held by C before B received real property K. In addition, 
B's transfer of real property X and acquisition of real property K 
qualify as an exchange under section 1031. See paragraph (j) of this 
section for determining the amount of gain or loss recognized.
    (E) If the escrow agreement had expressly limited C's rights to 
receive, pledge, borrow, or otherwise obtain the benefits of money or 
other property in escrow as provided in paragraph (g)(6) of this 
section, but had not expressly limited B's rights to receive, pledge, 
borrow, or otherwise obtain the benefits of that money or other 
property, the escrow account would not have been a qualified escrow 
account. Consequently, paragraph (g)(3)(i) of this section would not 
have been applicable in determining whether B was in actual or 
constructive receipt of that money or other property before B received 
real property K.
    (iv) Example 4. (A) On May 1, 1991, B enters into an agreement to 
sell real property X to D for $100,000 on May 17, 1991. However, D is 
unwilling to participate in a like-kind exchange. B thus enters into an 
exchange agreement with C whereby B retains C to facilitate an exchange 
with respect to real property X. C is not a disqualified person as 
described in paragraph (k) of this section. In the exchange agreement 
between B and C, B assigns to C all of B's rights in the agreement with 
D. The exchange agreement expressly limits B's rights to receive, 
pledge, borrow, or otherwise obtain the benefits of money or other 
property held by C as provided in paragraph (g)(6) of this section. On 
May 17, 1991, B notifies D in writing of the assignment. On the same 
date, B executes and delivers to D a deed conveying real property X to 
D. D pays $10,000 to B and $90,000 to C. On June 1, 1991, B identifies 
real property L as replacement property. On July 5, 1991, B enters into 
an agreement to purchase real property L from E for $90,000, assigns its 
rights in that agreement to C, and notifies E in writing of the 
assignment. On August 9, 1991, C pays $90,000 to E, and E executes and 
delivers to B a deed conveying real property L to B.
    (B) The exchange agreement entered into by B and C satisfied the 
requirements of paragraph (g)(4)(iii)(B) of this section. Because B's 
rights in its agreements with D and E were assigned to C,

[[Page 136]]

and D and E were notified in writing of the assignment on or before the 
transfer of real properties X and L, respectively, C is treated as 
entering into those agreements. Because C is treated as entering into an 
agreement with D for the transfer of real property X and, pursuant to 
that agreement, real property X was transferred to D, C is treated as 
acquiring and transferring real property X. Similarly, because C is 
treated as entering into an agreement with E for the transfer of real 
property K and, pursuant to that agreement, real property K was 
transferred to B, C is treated as acquiring and transferring real 
property K. This result is reached for purposes of this section 
regardless of whether C was B's agent under state law and regardless of 
whether C is considered, under general tax principles, to have acquired 
title or beneficial ownership of the properties. Thus, C was a qualified 
intermediary.
    (C) The exchange agreement between B and C expressly limited B's 
rights to receive, pledge, borrow, or otherwise obtain the benefits of 
the money held by C as provided in paragraph (g)(6) of this section. 
Thus, B did not have the immediate ability or unrestricted right to 
receive money or other property held by C before B received real 
property L. For purposes of section 1031 and this section, therefore, B 
is determined not to be in actual or constructive receipt of the $90,000 
held by C before B received real property L. In addition, the transfer 
of real property X by B and B's acquisition of real property L qualify 
as an exchange under section 1031. See paragraph (j) of this section for 
determining the amount of gain or loss recognized.
    (v) Example 5. (A) On May 1, 1991, B enters into an agreement to 
sell real property X to D for $100,000. However, D is unwilling to 
participate in a like-kind exchange. B thus enters into an agreement 
with C whereby B retains C to facilitate an exchange with respect to 
real property X. C is not a disqualified person as described in 
paragraph (k) of this section. The agreement between B and C expressly 
limits B's rights to receive, pledge, borrow, or otherwise obtain the 
benefits of money or other property held by C as provided in paragraph 
(g)(6) of this section. C neither enters into an agreement with D to 
transfer real property X to D nor is assigned B's rights in B's 
agreement to sell real property X to D. On May 17, 1991, B transfers 
real property X to D and instructs D to transfer the $100,000 to C. On 
June 1, 1991, B identifies real property M as replacement property. On 
August 9, 1991, C purchases real property L from E for $100,000, and E 
executes and delivers to C a deed conveying real property M to C. On the 
same date, C executes and delivers to B a deed conveying real property M 
to B.
    (B) Because B transferred real property X directly to D under B's 
agreement with D, C did not acquire real property X from B and transfer 
real property X to D. Moreover, because C did not acquire legal title to 
real property X, did not enter into an agreement with D to transfer real 
property X to D, and was not assigned B's rights in B's agreement to 
sell real property X to D, C is not treated as acquiring and 
transferring real property X. Thus, C was not a qualified intermediary 
and paragraph (g)(4))(i) of this section does not apply.
    (C) B did not exchange real property X for real property M. Rather, 
B sold real property X to D and purchased, through C, real property M. 
Therefore, the transfer of real property X does not qualify for 
nonrecognition of gain or loss under section 1031.
    (vi) Example 6. (A) In 2020, B transfers to C real property with a 
fair market value of $1,100,000 and an adjusted basis of $400,000. B's 
replacement property is an office building and, as a part of the 
exchange, B also will acquire certain office furniture in the building 
that is not real property, which is industry practice in a transaction 
of this type. The fair market value of the real property B will acquire 
is $1,000,000 and the fair market value of the personal property is 
$100,000.
    (B) In a standard commercial transaction, the buyer of an office 
building typically also acquires some or all of the office furniture in 
the building. The fair market value of the personal property B will 
acquire does not exceed 15 percent of the fair market value of the 
office building B will acquire. Accordingly, under paragraph (g)(7)(iii) 
of this

[[Page 137]]

section, the personal property is incidental to the real property in the 
exchange and is disregarded in determining whether the taxpayer's rights 
to receive, pledge, borrow or otherwise obtain the benefits of money or 
non-like-kind property are expressly limited as provided in paragraph 
(g)(6) of this section. Upon the receipt of the personal property, B 
recognizes gain of $100,000 under section 1031(b), the lesser of the 
realized gain on the disposition of the relinquished property, $700,000, 
and the fair market value of the non-like-kind property B acquired in 
the exchange, $100,000.
    (9) Applicability date. Paragraphs (g)(7)(iii) and (g)(8)(vi) of 
this section apply to exchanges beginning after December 2, 2020.
    (h) Interest and growth factors--(1) In general. For purposes of 
this section, the taxpayer is treated as being entitled to receive 
interest or a growth factor with respect to a deferred exchange if the 
amount of money or property the taxpayer is entitled to receive depends 
upon the length of time elapsed between transfer of the relinquished 
property and receipt of the replacement property.
    (2) Treatment as interest. If, as part of a deferred exchange, the 
taxpayer receives interest or a growth factor, the interest or growth 
factor will be treated as interest, regardless of whether it is paid to 
the taxpayer in cash or in property (including property of a like kind). 
The taxpayer must include the interest or growth factor in income 
according to the taxpayer's method of accounting. For rules under 
section 468B(g) relating to the current taxation of qualified escrow 
accounts, qualified trusts, and other escrow accounts, trusts, and funds 
used during deferred exchanges of like-kind property, see Sec.  1.468B-
6.
    (i) [Reserved]
    (j) Determination of gain or loss recognized and the basis of 
property received in a deferred exchange--(1) In general. Except as 
otherwise provided, the amount of gain or loss recognized and the basis 
of property received in a deferred exchange is determined by applying 
the rules of section 1031 and the regulations thereunder. See Sec. Sec.  
1.1031(b)-1, 1.1031(c)-1, 1.1031(d)-1, 1.1031(d)-1T, 1.1031(d)-2, and 
1.1031(j)-1.
    (2) Coordination with section 453--(i) Qualified escrow accounts and 
qualified trusts. Subject to the limitations of paragraphs (j)(2) (iv) 
and (v) of this section, in the case of a taxpayer's transfer of 
relinquished property in which the obligation of the taxpayer's 
transferee to transfer replacement property to the taxpayer is or may be 
secured by cash or a cash equivalent, the determination of whether the 
taxpayer has received a payment for purposes of section 453 and Sec.  
15a.453-1(b)(3)(i) of this chapter will be made without regard to the 
fact that the obligation is or may be so secured if the cash or cash 
equivalent is held in a qualified escrow account or a qualified trust. 
This paragraph (j)(2)(i) ceases to apply at the earlier of--
    (A) The time described in paragraph (g)(3)(iv) of this section; or
    (B) The end of the exchange period.
    (ii) Qualified intermediaries. Subject to the limitations of 
paragraphs (j)(2) (iv) and (v) of this section, in the case of a 
taxpayer's transfer of relinquished property involving a qualified 
intermediary, the determination of whether the taxpayer has received a 
payment for purposes of section 453 and Sec.  15a.453-1(b)(3)(i) of this 
chapter is made as if the qualified intermediary is not the agent of the 
taxpayer. For purposes of this paragraph (j)(2)(ii), a person who 
otherwise satisfies the definition of a qualified intermediary is 
treated as a qualified intermediary even though that person ultimately 
fails to acquire identified replacement property and transfer it to the 
taxpayer. This paragraph (j)(2)(ii) ceases to apply at the earlier of--
    (A) The time described in paragraph (g)(4)(vi) of this section; or
    (B) The end of the exchange period.
    (iii) Transferee indebtedness. In the case of a transaction 
described in paragraph (j)(2)(ii) of this section, the receipt by the 
taxpayer of an evidence of indebtedness of the transferee of the 
qualified intermediary is treated as the receipt of an evidence of 
indebtedness of the person acquiring property from the taxpayer for 
purposes of section 453 and Sec.  15a.453-1(b)(3)(i) of this chapter.

[[Page 138]]

    (iv) Bona fide intent requirement. The provisions of paragraphs 
(j)(2) (i) and (ii) of this section do not apply unless the taxpayer has 
a bona fide intent to enter into a deferred exchange at the beginning of 
the exchange period. A taxpayer will be treated as having a bona fide 
intent only if it is reasonable to believe, based on all the facts and 
circumstances as of the beginning of the exchange period, that like-kind 
replacement property will be acquired before the end of the exchange 
period.
    (v) Disqualified property. The provisions of paragraphs (j)(2) (i) 
and (ii) of this section do not apply if the relinquished property is 
disqualified property. For purposes of this paragraph (j)(2), 
disqualified property means property that is not held for productive use 
in a trade or business or for investment or is property described in 
section 1031(a)(2).
    (vi) Examples. This paragraph (j)(2) may be illustrated by the 
following examples. Unless otherwise provided in an example, the 
following facts are assumed: B is a calendar year taxpayer who agrees to 
enter into a deferred exchange. Pursuant to the agreement, B is to 
transfer real property X. Real property X, which has been held by B for 
investment, is unencumbered and has a fair market value of $100,000 at 
the time of transfer. B's adjusted basis in real property X at that time 
is $60,000. B identifies a single like-kind replacement property before 
the end of the identification period, and B receives the replacement 
property before the end of the exchange period. The transaction 
qualifies as a like-kind exchange under section 1031.

    Example 1. (i) On September 22, 1994, B transfers real property X to 
C and C agrees to acquire like-kind property and deliver it to B. On 
that date B has a bona fide intent to enter into a deferred exchange. 
C's obligation, which is not payable on demand or readily tradable, is 
secured by $100,000 in cash. The $100,000 is deposited by C in an escrow 
account that is a qualified escrow account under paragraph (g)(3) of 
this section. The escrow agreement provides that B has no rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the cash 
deposited in the escrow account until the earlier of the date the 
replacement property is delivered to B or the end of the exchange 
period. On March 11, 1995, C acquires replacement property having a fair 
market value of $80,000 and delivers the replacement property to B. The 
$20,000 in cash remaining in the qualified escrow account is distributed 
to B at that time.
    (ii) Under section 1031(b), B recognizes gain to the extent of the 
$20,000 in cash that B receives in the exchange. Under paragraph 
(j)(2)(i) of this section, the qualified escrow account is disregarded 
for purposes of section 453 and Sec.  15a.453-1(b)(3)(i) of this chapter 
in determining whether B is in receipt of payment. Accordingly, B's 
receipt of C's obligation on September 22, 1994, does not constitute a 
payment. Instead, B is treated as receiving payment on March 11, 1995, 
on receipt of the $20,000 in cash from the qualified escrow account. 
Subject to the other requirements of sections 453 and 453A, B may report 
the $20,000 gain in 1995 under the installment method. See section 
453(f)(6) for special rules for determining total contract price and 
gross profit in the case of an exchange described in section 1031(b).
    Example 2. (i) D offers to purchase real property X but is unwilling 
to participate in a like-kind exchange. B thus enters into an exchange 
agreement with C whereby B retains C to facilitate an exchange with 
respect to real property X. On September 22, 1994, pursuant to the 
agreement, B transfers real property X to C who transfers it to D for 
$100,000 in cash. On that date B has a bona fide intent to enter into a 
deferred exchange. C is a qualified intermediary under paragraph (g)(4) 
of this section. The exchange agreement provides that B has no rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the money 
held by C until the earlier of the date the replacement property is 
delivered to B or the end of the exchange period. On March 11, 1995, C 
acquires replacement property having a fair market value of $80,000 and 
delivers it, along with the remaining $20,000 from the transfer of real 
property X to B.
    (ii) Under section 1031(b), B recognizes gain to the extent of the 
$20,000 cash B receives in the exchange. Under paragraph (j)(2)(ii) of 
this section, any agency relationship between B and C is disregarded for 
purposes of section 453 and Sec.  15a.453-1(b)(3)(i) of this chapter in 
determining whether B is in receipt of payment. Accordingly, B is not 
treated as having received payment on September 22, 1994, on C's receipt 
of payment from D for the relinquished property. Instead, B is treated 
as receiving payment on March 11, 1995, on receipt of the $20,000 in 
cash from C. Subject to the other requirements of sections 453 and 453A, 
B may report the $20,000 gain in 1995 under the installment method.
    Example 3. (i) D offers to purchase real property X but is unwilling 
to participate in a like-kind exchange. B enters into an exchange 
agreement with C whereby B retains C as a qualified intermediary to 
facilitate an

[[Page 139]]

exchange with respect to real property X. On December 1, 1994, pursuant 
to the agreement, B transfers real property X to C who transfers it to D 
for $100,000 in cash. On that date B has a bona fide intent to enter 
into a deferred exchange. The exchange agreement provides that B has no 
rights to receive, pledge, borrow, or otherwise obtain the benefits of 
the cash held by C until the earliest of the end of the identification 
period if B has not identified replacement property, the date the 
replacement property is delivered to B, or the end of the exchange 
period. Although B has a bona fide intent to enter into a deferred 
exchange at the beginning of the exchange period, B does not identify or 
acquire any replacement property. In 1995, at the end of the 
identification period, C delivers the entire $100,000 from the sale of 
real property X to B.
    (ii) Under section 1001, B realizes gain to the extent of the amount 
realized ($100,000) over the adjusted basis in real property X 
($60,000), or $40,000. Because B has a bona fide intent at the beginning 
of the exchange period to enter into a deferred exchange, paragraph 
(j)(2)(iv) of this section does not make paragraph (j)(2)(ii) of this 
section inapplicable even though B fails to acquire replacement 
property. Further, under paragraph (j)(2)(ii) of this section, C is a 
qualified intermediary even though C does not acquire and transfer 
replacement property to B. Thus, any agency relationship between B and C 
is disregarded for purposes of section 453 and Sec.  15a.453-1(b)(3)(i) 
of this chapter in determining whether B is in receipt of payment. 
Accordingly, B is not treated as having received payment on December 1, 
1994, on C's receipt of payment from D for the relinquished property. 
Instead, B is treated as receiving payment at the end of the 
identification period in 1995 on receipt of the $100,000 in cash from C. 
Subject to the other requirements of sections 453 and 453A, B may report 
the $40,000 gain in 1995 under the installment method.
    Example 4. (i) D offers to purchase real property X but is unwilling 
to participate in a like-kind exchange. B thus enters into an exchange 
agreement with C whereby B retains C to facilitate an exchange with 
respect to real property X. C is a qualified intermediary under 
paragraph (g)(4) of this section. On September 22, 1994, pursuant to the 
agreement, B transfers real property X to C who then transfers it to D 
for $80,000 in cash and D's 10-year installment obligation for $20,000. 
On that date B has a bona fide intent to enter into a deferred exchange. 
The exchange agreement provides that B has no rights to receive, pledge, 
borrow, or otherwise obtain the benefits of the money or other property 
held by C until the earlier of the date the replacement property is 
delivered to B or the end of the exchange period. D's obligation bears 
adequate stated interest and is not payable on demand or readily 
tradable. On March 11, 1995, C acquires replacement property having a 
fair market value of $80,000 and delivers it, along with the $20,000 
installment obligation, to B.
    (ii) Under section 1031(b), $20,000 of B's gain (i.e., the amount of 
the installment obligation B receives in the exchange) does not qualify 
for nonrecognition under section 1031(a). Under paragraphs (j)(2) (ii) 
and (iii) of this section, B's receipt of D's obligation is treated as 
the receipt of an obligation of the person acquiring the property for 
purposes of section 453 and Sec.  15a.453-1(b)(3)(i) of this chapter in 
determining whether B is in receipt of payment. Accordingly, B's receipt 
of the obligation is not treated as a payment. Subject to the other 
requirements of sections 453 and 453A, B may report the $20,000 gain 
under the installment method on receiving payments from D on the 
obligation.
    Example 5. (i) B is a corporation that has held real property X to 
expand its manufacturing operations. However, at a meeting in November 
1994, B's directors decide that real property X is not suitable for the 
planned expansion, and authorize a like-kind exchange of this property 
for property that would be suitable for the planned expansion. B enters 
into an exchange agreement with C whereby B retains C as a qualified 
intermediary to facilitate an exchange with respect to real property X. 
On November 28, 1994, pursuant to the agreement, B transfers real 
property X to C, who then transfers it to D for $100,000 in cash. The 
exchange agreement does not include any limitations or conditions that 
make it unreasonable to believe that like-kind replacement property will 
be acquired before the end of the exchange period. The exchange 
agreement provides that B has no rights to receive, pledge, borrow, or 
otherwise obtain the benefits of the cash held by C until the earliest 
of the end of the identification period, if B has not identified 
replacement property, the date the replacement property is delivered to 
B, or the end of the exchange period. In early January 1995, B's 
directors meet and decide that it is not feasible to proceed with the 
planned expansion due to a business downturn reflected in B's 
preliminary financial reports for the last quarter of 1994. Thus, B's 
directors instruct C to stop seeking replacement property. C delivers 
the $100,000 cash to B on January 12, 1995, at the end of the 
identification period. Both the decision to exchange real property X for 
other property and the decision to cease seeking replacement property 
because of B's business downturn are recorded in the minutes of the 
directors' meetings. There are no other facts or circumstances that 
would indicate whether, on November 28, 1994, B had a bona fide intent 
to enter into a deferred like-kind exchange.

[[Page 140]]

    (ii) Under section 1001, B realizes gain to the extent of the amount 
realized ($100,000) over the adjusted basis of real property X 
($60,000), or $40,000. The directors' authorization of a like-kind 
exchange, the terms of the exchange agreement with C, and the absence of 
other relevant facts, indicate that B had a bona fide intent at the 
beginning of the exchange period to enter into a deferred like-kind 
exchange. Thus, paragraph (j)(2)(iv) of this section does not make 
paragraph (j)(2)(ii) of this section inapplicable, even though B fails 
to acquire replacement property. Further, under paragraph (j)(2)(ii) of 
this section, C is a qualified intermediary, even though C does not 
transfer replacement property to B. Thus, any agency relationship 
between B and C is disregarded for purposes of section 453 and Sec.  
15a.453-1(b)(3)(i) of this chapter in determining whether B is in 
receipt of payment. Accordingly, B is not treated as having received 
payment until January 12, 1995, on receipt of the $100,000 cash from C. 
Subject to the other requirements of sections 453 and 453A, B may report 
the $40,000 gain in 1995 under the installment method.
    Example 6. (i) B has held real property X for use in its trade or 
business, but decides to transfer that property because it is no longer 
suitable for B's planned expansion of its commercial enterprise. B and D 
agree to enter into a deferred exchange. Pursuant to their agreement, B 
transfers real property X to D on September 22, 1994, and D deposits 
$100,000 cash in a qualified escrow account as security for D's 
obligation under the agreement to transfer replacement property to B 
before the end of the exchange period. D's obligation is not payable on 
demand or readily tradable. The agreement provides that B is not 
required to accept any property that is not zoned for commercial use. 
Before the end of the identification period, B identifies real 
properties J, K, and L, all zoned for residential use, as replacement 
properties. Any one of these properties, rezoned for commercial use, 
would be suitable for B's planned expansion. In recent years, the zoning 
board with jurisdiction over properties J, K, and L has rezoned similar 
properties for commercial use. The escrow agreement provides that B has 
no rights to receive, pledge, borrow, or otherwise obtain the benefits 
of the money in the escrow account until the earlier of the time that 
the zoning board determines, after the end of the identification period, 
that it will not rezone the properties for commercial use or the end of 
the exchange period. On January 5, 1995, the zoning board decides that 
none of the properties will be rezoned for commercial use. Pursuant to 
the exchange agreement, B receives the $100,000 cash from the escrow on 
January 5, 1995. There are no other facts or circumstances that would 
indicate whether, on September 22, 1994, B had a bona fide intent to 
enter into a deferred like-kind exchange.
    (ii) Under section 1001, B realizes gain to the extent of the amount 
realized ($100,000) over the adjusted basis of real property X 
($60,000), or $40,000. The terms of the exchange agreement with D, the 
identification of properties J, K, and L, the efforts to have those 
properties rezoned for commercial purposes, and the absence of other 
relevant facts, indicate that B had a bona fide intent at the beginning 
of the exchange period to enter into a deferred exchange. Moreover, the 
limitations imposed in the exchange agreement on acceptable replacement 
property do not make it unreasonable to believe that like-kind 
replacement property would be acquired before the end of the exchange 
period. Therefore, paragraph (j)(2)(iv) of this section does not make 
paragraph (j)(2)(i) of this section inapplicable even though B fails to 
acquire replacement property. Thus, for purposes of section 453 and 
Sec.  15a.453-1(b)(3)(i) of this chapter, the qualified escrow account 
is disregarded in determining whether B is in receipt of payment. 
Accordingly, B is not treated as having received payment on September 
22, 1994, on D's deposit of the $100,000 cash into the qualified escrow 
account. Instead, B is treated as receiving payment on January 5, 1995. 
Subject to the other requirements of sections 453 and 453A, B may report 
the $40,000 gain in 1995 under the installment method.

    (vii) Effective date. This paragraph (j)(2) is effective for 
transfers of property occurring on or after April 20, 1994. Taxpayers 
may apply this paragraph (j)(2) to transfers of property occurring 
before April 20, 1994, but on or after June 10, 1991, if those transfers 
otherwise meet the requirements of Sec.  1.1031(k)-1. In addition, 
taxpayers may apply this paragraph (j)(2) to transfers of property 
occurring before June 10, 1991, but on or after May 16, 1990, if those 
transfers otherwise meet the requirements of Sec.  1.1031(k)-1 or follow 
the guidance of IA-237-84 published in 1990-1, C.B. See Sec.  
601.601(d)(2)(ii)(b) of this chapter.
    (3) Examples. This paragraph (j) may be illustrated by the following 
examples. Unless otherwise provided in an example, the following facts 
are assumed: B, a calendar year taxpayer, and C agree to enter into a 
deferred exchange. Pursuant to their agreement, B is to transfer real 
property X to C on May 17, 1991. Real property X, which has been held by 
B for investment, is unencumbered and has a fair market value on May 17, 
1991, of $100,000. B's

[[Page 141]]

adjusted basis in real property X is $40,000. On or before July 1, 1991 
(the end of the identification period), B is to identify replacement 
property that is of a like kind to real property X. On or before 
November 13, 1991 (the end of the exchange period), C is required to 
purchase the property identified by B and to transfer that property to 
B. To the extent the fair market value of the replacement property 
transferred to B is greater or less than the fair market value of real 
property X, either B or C, as applicable, will make up the difference by 
paying cash to the other party after the date the replacement property 
is received. The replacement property is identified as provided in 
paragraph (c) of this section and is of a like kind to real property X 
(determined without regard to section 1031(a)(3) and this section). B 
intends to hold any replacement property received for investment.

    Example 1. (i) On May 17, 1991, B transfers real property X to C and 
identifies real property R as replacement property. On June 3, 1991, C 
transfers $10,000 to B. On September 4, 1991, C purchases real property 
R for $90,000 and transfers real property R to B.
    (ii) The $10,000 received by B is ``money or other property'' for 
purposes of section 1031 and the regulations thereunder. Under section 
1031(b), B recognizes gain in the amount of $10,000. Under section 
1031(d), B's basis in real property R is $40,000 (i.e., B's basis in 
real property X ($40,000), decreased in the amount of money received 
($10,000), and increased in the amount of gain recognized ($10,000) in 
the deferred exchange).
    Example 2. (i) On May 17, 1991, B transfers real property X to C and 
identifies real property S as replacement property, and C transfers 
$10,000 to B. On September 4, 1991, C purchases real property S for 
$100,000 and transfers real property S to B. On the same day, B 
transfers $10,000 to C.
    (ii) The $10,000 received by B is ``money or other property'' for 
purposes of section 1031 and the regulations thereunder. Under section 
1031(b), B recognizes gain in the amount of $10,000. Under section 
1031(d), B's basis in real property S is $50,000 (i.e., B's basis in 
real property X ($40,000), decreased in the amount of money received 
($10,000), increased in the amount of gain recognized ($10,000), and 
increased in the amount of the additional consideration paid by B 
($10,000) in the deferred exchange).
    Example 3. (i) Under the exchange agreement, B has the right at all 
times to demand $100,000 in cash in lieu of replacement property. On May 
17, 1991, B transfers real property X to C and identifies real property 
T as replacement property. On September 4, 1991, C purchases real 
property T for $100,000 and transfers real property T to B.
    (ii) Because B has the right on May 17, 1991, to demand $100,000 in 
cash in lieu of replacement property, B is in constructive receipt of 
the $100,000 on that date. Thus, the transaction is a sale and not an 
exchange, and the $60,000 gain realized by B in the transaction (i.e., 
$100,000 amount realized less $40,000 adjusted basis) is recognized. 
Under section 1031(d), B's basis in real property T is $100,000.
    Example 4. (i) Under the exchange agreement, B has the right at all 
times to demand up to $30,000 in cash and the balance in replacement 
propertry instead of receiving replacement property in the amount of 
$100,000. On May 17, 1991, B transfers real property X to C and 
identifies real property U as replacement property. On September 4, 
1991, C purchases real property U for $100,000 and transfers real 
property U to B.
    (ii) The transaction qualifies as a deferred exchange under section 
1031 and this section. However, because B had the right on May 17, 1991, 
to demand up to $30,000 in cash, B is in constructive receipt of $30,000 
on that date. Under section 1031(b), B recognizes gain in the amount of 
$30,000. Under section 1031(d), B's basis in real property U is $70,000 
(i.e., B's basis in real property X ($40,000), decreased in the amount 
of money that B received ($30,000), increased in the amount of gain 
recognized ($30,000), and increased in the amount of additional 
consideration paid by B ($30,000) in the deferred exchange).
    Example 5. (i) Assume real property X is encumbered by a mortgage of 
$30,000. On May 17, 1991, B transfers real property X to C and 
identifies real property V as replacement property, and C assumes the 
$30,000 mortgage on real property X. Real property V is encumbered by a 
$20,000 mortgage. On July 5, 1991, C purchases real property V for 
$90,000 by paying $70,000 and assuming the mortgage and transfers real 
property V to B with B assuming the mortgage.
    (ii) The consideration received by B in the form of the liability 
assumed by C ($30,000) is offset by the consideration given by B in the 
form of the liability assumed by B ($20,000). The excess of the 
liability assumed by C over the liability assumed by B, $10,000, is 
treated as ``money or other property.'' See Sec.  1.1031(b)-1(c). Thus, 
B recognizes gain under section 1031(b) in the amount of $10,000. Under 
section 1031(d), B's basis in real property V is $40,000 (i.e., B's 
basis in real property X ($40,000), decreased in the amount of money 
that B is treated as receiving in the form of the liability assumed by C 
($30,000), increased in the amount of money that B is treated as paying 
in the form of the liability assumed by B ($20,000), and increased in 
the

[[Page 142]]

amount of the gain recognized ($10,000) in the deferred exchange).

    (k) Definition of disqualified person. (1) For purposes of this 
section, a disqualified person is a person described in paragraph 
(k)(2), (k)(3), or (k)(4) of this section.
    (2) The person is the agent of the taxpayer at the time of the 
transaction. For this purpose, a person who has acted as the taxpayer's 
employee, attorney, accountant, investment banker or broker, or real 
estate agent or broker within the 2-year period ending on the date of 
the transfer of the first of the relinquished properties is treated as 
an agent of the taxpayer at the time of the transaction. Solely for 
purposes of this paragraph (k)(2), performance of the following services 
will not be taken into account--
    (i) Services for the taxpayer with respect to exchanges of property 
intended to qualify for nonrecognition of gain or loss under section 
1031; and
    (ii) Routine financial, title insurance, escrow, or trust services 
for the taxpayer by a financial institution, title insurance company, or 
escrow company.
    (3) The person and the taxpayer bear a relationship described in 
either section 267(b) or section 707(b) (determined by substituting in 
each section ``10 percent'' for ``50 percent'' each place it appears).
    (4)(i) Except as provided in paragraph (k)(4)(ii) of this section, 
the person and a person described in paragraph (k)(2) of this section 
bear a relationship described in either section 267(b) or 707(b) 
(determined by substituting in each section ``10 percent'' for ``50 
percent'' each place it appears).
    (ii) In the case of a transfer of relinquished property made by a 
taxpayer on or after January 17, 2001, paragraph (k)(4)(i) of this 
section does not apply to a bank (as defined in section 581) or a bank 
affiliate if, but for this paragraph (k)(4)(ii), the bank or bank 
affiliate would be a disqualified person under paragraph (k)(4)(i) of 
this section solely because it is a member of the same controlled group 
(as determined under section 267(f)(1), substituting ``10 percent'' for 
``50 percent' where it appears) as a person that has provided investment 
banking or brokerage services to the taxpayer within the 2-year period 
described in paragraph (k)(2) of this section. For purposes of this 
paragraph (k)(4)(ii), a bank affiliate is a corporation whose principal 
activity is rendering services to facilitate exchanges of property 
intended to qualify for nonrecognition of gain under section 1031 and 
all of whose stock is owned by either a bank or a bank holding company 
(within the meaning of section 2(a) of the Bank Holding Company Act of 
1956 (12 U.S.C. 1841(a)).
    (5) This paragraph (k) may be illustrated by the following examples. 
Unless otherwise provided, the following facts are assumed: On May 1, 
1991, B enters into an exchange agreement (as defined in paragraph 
(g)(4)(iii)(B) of this section) with C whereby B retains C to facilitate 
an exchange with respect to real property X. On May 17, 1991, pursuant 
to the agreement, B executes and delivers to C a deed conveying real 
property X to C. C has no relationship to B described in paragraph 
(k)(2), (k)(3), or (k)(4) of this section.

    Example 1. (i) C is B's accountant and has rendered accounting 
services to B within the 2-year period ending on May 17, 1991, other 
than with respect to exchanges of property intended to qualify for 
nonrecognition of gain or loss under section 1031.
    (ii) C is a disqualified person because C has acted as B's 
accountant within the 2-year period ending on May 17, 1991.
    (iii) If C had not acted as B's accountant within the 2-year period 
ending on May 17, 1991, or if C had acted as B's accountant within that 
period only with respect to exchanges intended to qualify for 
nonrecognition of gain or loss under section 1031, C would not have been 
a disqualified person.
    Example 2. (i) C, which is engaged in the trade or business of 
acting as an intermediary to facilitate deferred exchanges, is a wholly 
owned subsidiary of an escrow company that has performed routine escrow 
services for B in the past. C has previously been retained by B to act 
as an intermediary in prior section 1031 exchanges.
    (ii) C is not a disqualified person notwithstanding the intermediary 
services previously provided by C to B (see paragraph (k)(2)(i) of this 
section) and notwithstanding the combination of C's relationship to the 
escrow company and the escrow services previously provided by the escrow 
company to B (see paragraph (k)(2)(ii) of this section).
    Example 3. (i) C is a corporation that is only engaged in the trade 
or business of acting as an intermediary to facilitate deferred

[[Page 143]]

exchanges. Each of 10 law firms owns 10 percent of the outstanding stock 
of C. One of the 10 law firms that owns 10 percent of C is M. J is the 
managing partner of M and is the president of C. J, in his capacity as a 
partner in M, has also rendered legal advice to B within the 2-year 
period ending on May 17, 1991, on matters other than exchanges intended 
to qualify for nonrecognition of gain or loss under section 1031.
    (ii) J and M are disqualified persons. C, however, is not a 
disqualified person because neither J nor M own, directly or indirectly, 
more than 10 percent of the stock of C. Similarly, J's participation in 
the management of C does not make C a disqualified person.

    (l) [Reserved]
    (m) Definition of fair market value. For purposes of this section, 
the fair market value of property means the fair market value of the 
property without regard to any liabilities secured by the property.
    (n) No inference with respect to actual or constructive receipt 
rules outside of section 1031. The rules provided in this section 
relating to actual or constructive receipt are intended to be rules for 
determining whether there is actual or constructive receipt in the case 
of a deferred exchange. No inference is intended regarding the 
application of these rules for purposes of determining whether actual or 
constructive receipt exists for any other purpose.
    (o) Effective date. This section applies to transfers of property 
made by a taxpayer on or after June 10, 1991. However, a transfer of 
property made by a taxpayer on or after May 16, 1990, but before June 
10, 1991, will be treated as complying with section 1031 (a)(3) and this 
section if the deferred exchange satisfies either the provision of this 
section or the provisions of the notice of proposed rulemaking published 
in the Federal Register on May 16, 1990 (55 FR 20278).

[T.D. 8346, 56 FR 19938, May 1, 1991, as amended by T.D. 8535, 59 FR 
18749, Apr. 20, 1994; T.D. 8982, 67 FR 4909, Feb. 1, 2002; T.D. 9413, 73 
FR 39622, July 10, 2008; T.D. 9935, 85 FR 77383, Dec. 2, 2020]



Sec.  1.1032-1  Disposition by a corporation of its own capital stock.

    (a) The disposition by a corporation of shares of its own stock 
(including treasury stock) for money or other property does not give 
rise to taxable gain or deductible loss to the corporation regardless of 
the nature of the transaction or the facts and circumstances involved. 
For example, the receipt by a corporation of the subscription price of 
shares of its stock upon their original issuance gives rise to neither 
taxable gain nor deductible loss, whether the subscription or issue 
price be equal to, in excess of, or less than, the par or stated value 
of such stock. Also, the exchange or sale by a corporation of its own 
shares for money or other property does not result in taxable gain or 
deductible loss, even though the corporation deals in such shares as it 
might in the shares of another corporation. A transfer by a corporation 
of shares of its own stock (including treasury stock) as compensation 
for services is considered, for purposes of section 1032(a), as a 
disposition by the corporation of such shares for money or other 
property.
    (b) Section 1032(a) does not apply to the acquisition by a 
corporation of shares of its own stock except where the corporation 
acquires such shares in exchange for shares of its own stock (including 
treasury stock). See paragraph (e) of Sec.  1.311-1, relating to 
treatment of acquisitions of a corporation's own stock. Section 1032(a) 
also does not relate to the tax treatment of the recipient of a 
corporation's stock.
    (c) Where a corporation acquires shares of its own stock in exchange 
for shares of its own stock (including treasury stock) the transaction 
may qualify not only under section 1032(a), but also under section 
368(a)(1)(E) (recapitalization) or section 305(a) (distribution of stock 
and stock rights).
    (d) For basis of property acquired by a corporation in connection 
with a transaction to which section 351 applies or in connection with a 
reorganization, see section 362. For basis of property acquired by a 
corporation in a transaction to which section 1032 applies but which 
does not qualify under any other nonrecognition provision, see section 
1012.



Sec.  1.1032-2  Disposition by a corporation of stock of a controlling 
corporation in certain triangular reorganizations.

    (a) Scope. This section provides rules for certain triangular 
reorganizations

[[Page 144]]

described in Sec.  1.358-6(b) when the acquiring corporation (S) 
acquires property or stock of another corporation (T) in exchange for 
stock of the corporation (P) in control of S.
    (b) General nonrecognition of gain or loss. For purposes of Sec.  
1.1032-1(a), in the case of a forward triangular merger, a triangular C 
reorganization, or a triangular B reorganization (as described in Sec.  
1.358-6(b)), P stock provided by P to S, or directly to T or T's 
shareholders on behalf of S, pursuant to the plan of reorganization is 
treated as a disposition by P of shares of its own stock for T's assets 
or stock, as applicable. For rules governing the use of P stock in a 
reverse triangular merger, see section 361.
    (c) Treatment of S. S must recognize gain or loss on its exchange of 
P stock as consideration in a forward triangular merger, a triangular C 
reorganization, or a triangular B reorganization (as described in Sec.  
1.358-6(b)), if S did not receive the P stock from P pursuant to the 
plan of reorganization. See Sec.  1.358-6(d) for the effect on P's basis 
in its S or T stock, as applicable. For rules governing S's use of P 
stock in a reverse triangular merger, see section 361.
    (d) Examples. The rules of this section are illustrated by the 
following examples. For purposes of these examples, P, S, and T are 
domestic corporations, P and S do not file consolidated returns, P owns 
all of the only class of S stock, the P stock exchanged in the 
transaction satisfies the requirements of the applicable reorganization 
provisions, and the facts set forth the only corporate activity.

    Example 1. Forward triangular merger solely for P stock. (a) Facts. 
T has assets with an aggregate basis of $60 and fair market value of 
$100 and no liabilities. Pursuant to a plan, P forms S by transferring 
$100 of P stock to S and T merges into S. In the merger, the T 
shareholders receive, in exchange for their T stock, the P stock that P 
transferred to S. The transaction is a reorganization to which sections 
368(a)(1)(A) and (a)(2)(D) apply.
    (b) No gain or loss recognized on the use of P stock. Under 
paragraph (b) of this section, the P stock provided by P pursuant to the 
plan of reorganization is treated for purposes of Sec.  1.1032-1(a) as 
disposed of by P for the T assets acquired by S in the merger. 
Consequently, neither P nor S has taxable gain or deductible loss on the 
exchange.
    Example 2. Forward triangular merger solely for P stock provided in 
part by S. (a) Facts. T has assets with an aggregate basis of $60 and 
fair market value of $100 and no liabilities. S is an operating company 
with substantial assets that has been in existence for several years. S 
also owns P stock with a $20 adjusted basis and $30 fair market value. S 
acquired the P stock in an unrelated transaction several years before 
the reorganization. Pursuant to a plan, P transfers additional P stock 
worth $70 to S and T merges into S. In the merger, the T shareholders 
receive $100 of P stock ($70 of P stock provided by P to S as part of 
the plan and $30 of P stock held by S previously). The transaction is a 
reorganization to which sections 368(a)(1)(A) and (a)(2)(D) apply.
    (b) Gain or loss recognized by S on the use of its P stock. Under 
paragraph (b) of this section, the $70 of P stock provided by P pursuant 
to the plan of reorganization is treated as disposed of by P for the T 
assets acquired by S in the merger. Consequently, neither P nor S has 
taxable gain or deductible loss on the exchange of those shares. Under 
paragraph (c) of this section, however, S recognizes $10 of gain on the 
exchange of its P stock in the reorganization because S did not receive 
the P stock from P pursuant to the plan of reorganization. See Sec.  
1.358-6(d) for the effect on P's basis in its S stock.

    (e) Stock options. The rules of this section shall apply to an 
option to buy or sell P stock issued by P in the same manner as the 
rules of this section apply to P stock.
    (f) Effective dates. This section applies to triangular 
reorganizations occurring on or after December 23, 1994, except for 
paragraph (e) of this section, which applies to transfers of stock 
options occurring on or after May 16, 2000.

[T.D. 8648, 60 FR 66081, Dec. 21, 1995, as amended by T.D. 8883, 65 FR 
31076, May 16, 2000]



Sec.  1.1032-3  Disposition of stock or stock options in certain transactions 
not qualifying under any other nonrecognition provision.

    (a) Scope. This section provides rules for certain transactions in 
which a corporation or a partnership (the acquiring entity) acquires 
money or other property (as defined in Sec.  1.1032-1) in exchange, in 
whole or in part, for stock of a corporation (the issuing corporation).
    (b) Nonrecognition of gain or loss--(1) General rule. In a 
transaction to which this section applies, no gain or loss is recognized 
on the disposition of the

[[Page 145]]

issuing corporation's stock by the acquiring entity. The transaction is 
treated as if, immediately before the acquiring entity disposes of the 
stock of the issuing corporation, the acquiring entity purchased the 
issuing corporation's stock from the issuing corporation for fair market 
value with cash contributed to the acquiring entity by the issuing 
corporation (or, if necessary, through intermediate corporations or 
partnerships). For rules that may apply in determining the issuing 
corporation's adjustment to basis in the acquiring entity (or, if 
necessary, in determining the adjustment to basis in intermediate 
entities), see sections 358, 722, and the regulations thereunder.
    (2) Special rule for actual payment for stock of the issuing 
corporation. If the issuing corporation receives money or other property 
in payment for its stock, the amount of cash deemed contributed under 
paragraph (b)(1) of this section is the difference between the fair 
market value of the issuing corporation stock and the amount of money or 
the fair market value of other property that the issuing corporation 
receives as payment.
    (c) Applicability. The rules of this section apply only if, pursuant 
to a plan to acquire money or other property--
    (1) The acquiring entity acquires stock of the issuing corporation 
directly or indirectly from the issuing corporation in a transaction in 
which, but for this section, the basis of the stock of the issuing 
corporation in the hands of the acquiring entity would be determined, in 
whole or in part, with respect to the issuing corporation's basis in the 
issuing corporation's stock under section 362(a) or 723 (provided that, 
in the case of an indirect acquisition by the acquiring entity, the 
transfers of issuing corporation stock through intermediate entities 
occur immediately after one another);
    (2) The acquiring entity immediately transfers the stock of the 
issuing corporation to acquire money or other property (from a person 
other than an entity from which the stock was directly or indirectly 
acquired);
    (3) The party receiving stock of the issuing corporation in the 
exchange specified in paragraph (c)(2) of this section from the 
acquiring entity does not receive a substituted basis in the stock of 
the issuing corporation within the meaning of section 7701(a)(42); and
    (4) The issuing corporation stock is not exchanged for stock of the 
issuing corporation.
    (d) Stock options. The rules of this section shall apply to an 
option issued by a corporation to buy or sell its own stock in the same 
manner as the rules of this section apply to the stock of an issuing 
corporation.
    (e) Examples. The following examples illustrate the application of 
this section:

    Example 1. (i) X, a corporation, owns all of the stock of Y 
corporation. Y reaches an agreement with C, an individual, to acquire a 
truck from C in exchange for 10 shares of X stock with a fair market 
value of $100. To effectuate Y's agreement with C,X transfers to Y the X 
stock in a transaction in which, but for this section, the basis of the 
X stock in the hands of Y would be determined with respect to X's basis 
in the X stock under section 362(a). Y immediately transfers the X stock 
to C to acquire the truck.
    (ii) In this Example 1, no gain or loss is recognized on the 
disposition of the X stock by Y. Immediately before Y's disposition of 
the X stock, Y is treated as purchasing the X stock from X for $100 of 
cash contributed to Y by X. Under section 358, X's basis in its Y stock 
is increased by $100.
    Example 2. (i) Assume the same facts as Example 1, except that, 
rather than X stock, X transfers an option with a fair market value of 
$100 to purchase X stock.
    (ii) In this Example 2, no gain or loss is recognized on the 
disposition of the X stock option by Y. Immediately before Y's 
disposition of the X stock option, Y is treated as purchasing the X 
stock option from X for $100 of cash contributed to Y by X. Under 
section 358, X's basis in its Y stock is increased by $100.
    Example 3. (i) X, a corporation, owns all of the outstanding stock 
of Y corporation. Y is a partner in partnership Z. Z reaches an 
agreement with C, an individual, to acquire a truck from C in exchange 
for 10 shares of X stock with a fair market value of $100. To effectuate 
Z's agreement with C, X transfers to Y the X stock in a transaction in 
which, but for this section, the basis of the X stock in the hands of Y 
would be determined with respect to X's basis in the X stock under 
section 362(a). Y immediately transfers the X stock to Z in a 
transaction in which, but for this section, the basis of the X stock in 
the hands of Z would be determined under section 723. Z immediately 
transfers the X stock to C to acquire the truck.

[[Page 146]]

    (ii) In this Example 3, no gain or loss is recognized on the 
disposition of the X stock by Z. Immediately before Z's disposition of 
the X stock, Z is treated as purchasing the X stock from X for $100 of 
cash indirectly contributed to Z by X through an intermediate 
corporation, Y. Under section 722, Y's basis in its Z partnership 
interest is increased by $100, and, under section 358, X's basis in its 
Y stock is increased by $100.
    Example 4. (i) X, a corporation, owns all of the outstanding stock 
of Y corporation. B, an individual, is an employee of Y. Pursuant to an 
agreement between X and Y to compensate B for services provided to Y, X 
transfers to B 10 shares of X stock with a fair market value of $100. 
Under Sec.  1.83-6(d), but for this section, the transfer of X stock by 
X to B would be treated as a contribution of the X stock by X to the 
capital of Y, and immediately thereafter, a transfer of the X stock by Y 
to B. But for this section, the basis of the X stock in the hands of Y 
would be determined with respect to X's basis in the X stock under 
section 362(a).
    (ii) In this Example 4, no gain or loss is recognized on the deemed 
disposition of the X stock by Y. Immediately before Y's deemed 
disposition of the X stock, Y is treated as purchasing the X stock from 
X for $100 of cash contributed to Y by X. Under section 358, X's basis 
in its Y stock is increased by $100.
    Example 5. (i) X, a corporation, owns all of the outstanding stock 
of Y corporation. B, an individual, is an employee of Y. To compensate B 
for services provided to Y, B is offered the opportunity to purchase 10 
shares of X stock with a fair market value of $100 at a reduced price of 
$80. B transfers $80 and Y transfers $10 to X as partial payment for the 
X stock.
    (ii) In this Example 5, no gain or loss is recognized on the deemed 
disposition of the X stock by Y. Immediately before Y's deemed 
disposition of the X stock, Y is treated as purchasing the X stock from 
X for $100, $80 of which Y is deemed to have received from B, $10 of 
which originated with Y, and $10 of which is deemed to have been 
contributed to Y by X. Under section 358, X's basis in its Y stock is 
increased by $10.
    Example 6. (i) X, a corporation, owns stock of Y. To compensate Y's 
employee, B, for services provided to Y, X issues 10 shares of X stock 
to B, subject to a substantial risk of forfeiture. B does not have an 
election under section 83(b) in effect with respect to the X stock. X 
retains the only reversionary interest in the X stock in the event that 
B forfeits the right to the stock. Several years after X's transfer of 
the X shares, the stock vests. At the time the stock vests, the 10 
shares of X stock have a fair market value of $100. Under Sec.  1.83-
6(d), but for this section, the transfer of the X stock by X to B would 
be treated, at the time the stock vests, as a contribution of the X 
stock by X to the capital of Y, and immediately thereafter, a 
disposition of the X stock by Y to B. The basis of the X stock in the 
hands of Y, but for this section, would be determined with respect to 
X's basis in the X stock under section 362(a).
    (ii) In this Example 6, no gain or loss is recognized on the deemed 
disposition of X stock by Y when the stock vests. Immediately before Y's 
deemed disposition of the X stock, Y is treated as purchasing X's stock 
from X for $100 of cash contributed to Y by X. Under section 358, X's 
basis in its Y stock is increased by $100.
    Example 7. (i) Assume the same facts as in Example 6, except that Y 
(rather than X) retains a reversionary interest in the X stock in the 
event that B forfeits the right to the stock. Several years after X's 
transfer of the X shares, the stock vests.
    (ii) In this Example 7, this section does not apply to Y's deemed 
disposition of the X shares because Y is not deemed to have transferred 
the X stock to B immediately after receiving the stock from X. For the 
tax consequences to Y on the deemed disposition of the X stock, see 
Sec.  1.83-6(b).
    Example 8. (i) X, a corporation, owns all of the outstanding stock 
of Y corporation. In Year 1, X issues to Y's employee, B, a nonstatutory 
stock option to purchase 10 shares of X stock as compensation for 
services provided to Y. The option is exercisable against X and does not 
have a readily ascertainable fair market value (determined under Sec.  
1.83-7(b)) at the time the option is granted. In Year 2, B exercises the 
option by paying X the strike price of $80 for the X stock, which then 
has a fair market value of $100.
    (ii) In this Example 8, because, under section 83(e)(3), section 
83(a) does not apply to the grant of the option, paragraph (d) of this 
section also does not apply to the grant of the option. Section 83 and 
Sec.  1.1032-3 apply in Year 2 when the option is exercised; thus, no 
gain or loss is recognized on the deemed disposition of X stock by Y in 
Year 2. Immediately before Y's deemed disposition of the X stock in Year 
2, Y is treated as purchasing the X stock from X for $100, $80 of which 
Y is deemed to have received from B and the remaining $20 of which is 
deemed to have been contributed to Y by X. Under section 358, X's basis 
in its Y stock is increased by $20.
    Example 9. (i) A, an individual, owns a majority of the stock of X. 
X owns stock of Y constituting control of Y within the meaning of 
section 368(c). A transfers 10 shares of its X stock to B, a key 
employee of Y. The fair market value of the 10 shares on the date of 
transfer was $100.
    (ii) In this Example 9, A is treated as making a nondeductible 
contribution of the 10 shares of X to the capital of X, and no gain or 
loss is recognized by A as a result of this transfer. See Commissioner 
v. Fink, 483 U.S. 89

[[Page 147]]

(1987). A must allocate his basis in the transferred shares to his 
remaining shares of X stock. No gain or loss is recognized on the deemed 
disposition of the X stock by Y. Immediately before Y's disposition of 
the X stock, Y is treated as purchasing the X stock from X for $100 of 
cash contributed to Y by X. Under section 358, X's basis in its Y stock 
is increased by $100.
    Example 10. (i) In Year 1, X, a corporation, forms a trust which 
will be used to satisfy deferred compensation obligations owed by Y, X's 
wholly owned subsidiary, to Y's employees. X funds the trust with X 
stock, which would revert to X upon termination of the trust, subject to 
the employees' rights to be paid the deferred compensation due to them. 
The creditors of X can reach all the trust assets upon the insolvency of 
X. Similarly, Y's creditors can reach all the trust assets upon the 
insolvency of Y. In Year 5, the trust transfers X stock to the employees 
of Y in satisfaction of the deferred compensation obligation.
    (ii) In this Example 10, X is considered to be the grantor of the 
trust, and, under section 677, X is also the owner of the trust. Any 
income earned by the trust would be reflected on X's income tax return. 
Y is not considered a grantor or owner of the trust corpus at the time X 
transfers X stock to the trust. In Year 5, when employees of Y receive X 
stock in satisfaction of the deferred compensation obligation, no gain 
or loss is recognized on the deemed disposition of the X stock by Y. 
Immediately before Y's deemed disposition of the X stock, Y is treated 
as purchasing the X stock from X for fair market value using cash 
contributed to Y by X. Under section 358, X's basis in its Y stock 
increases by the amount of cash deemed contributed.

    (f) Effective date. This section applies to transfers of stock or 
stock options of the issuing corporation occurring on or after May 16, 
2000.

[T.D. 8883, 65 FR 31076, May 16, 2000; 65 FR 37482, June 15, 2000]



Sec.  1.1033(a)-1  Involuntary conversions; nonrecognition of gain.

    (a) In general. Section 1033 applies to cases where property is 
compulsorily or involuntarily converted. An involuntary conversion may 
be the result of the destruction of property in whole or in part, the 
theft of property, the seizure of property, the requisition or 
condemnation of property, or the threat or imminence of requisition or 
condemnation of property. An involuntary conversion may be a conversion 
into similar property or into money or into dissimilar property. Section 
1033 provides that, under certain specified circumstances, any gain 
which is realized from an involuntary conversion shall not be 
recognized. In cases where property is converted into other property 
similar or related in service or use to the converted property, no gain 
shall be recognized regardless of when the disposition of the converted 
property occurred and regardless of whether or not the taxpayer elects 
to have the gain not recognized. In other types of involuntary 
conversion cases, however, the proceeds arising from the disposition of 
the converted property must (within the time limits specified) be 
reinvested in similar property in order to avoid recognition of any gain 
realized. Section 1033 applies only with respect to gains; losses from 
involuntary conversions are recognized or not recognized without regard 
to this section.
    (b) Special rules. For rules relating to the application of section 
1033 to involuntary conversions of a principal residence with respect to 
which an election has been made under section 121 (relating to gain from 
sale or exchange of residence of individual who has attained age 65), 
see paragraph (g) of Sec.  1.121-5. For rules applicable to involuntary 
conversions of a principal residence occurring before January 1, 1951, 
see Sec.  1.1033(a)-3. For rules applicable to involuntary conversions 
of a principal residence occurring after December 31, 1950, and before 
January 1, 1954, see paragraph (h)(1) of Sec.  1.1034-1. For rules 
applicable to involuntary conversions of a personal residence occurring 
after December 31, 1953, see Sec.  1.1033(a)-3. For special rules 
relating to the election to have section 1034 apply to certain 
involuntary conversions of a principal reisdence occurring after 
December 31, 1957, see paragraph (h)(2) of Sec.  1.1034-1. For special 
rules relating to certain involuntary conversions of real property held 
either for productive use in trade or business or for investment and 
occurring after December 31, 1957, see Sec.  1.1033(g)-1. See also 
special rules applicable to involuntary conversions of property sold 
pursuant to reclamation laws, livestock destroyed by disease, and 
livestock sold on account of drought provided in Sec. Sec.  1.1033(c)-1, 
1.1033(d)-1, and 1.1033(e)-1, respectively. For rules relating to basis 
of property

[[Page 148]]

acquired through involuntary conversions, see Sec.  1.1033(b)-1. For 
determination of the period for which the taxpayer has held property 
acquired as a result of certain involuntary conversions, see section 
1223 and regulations issued thereunder. For treatment of gains from 
involuntary conversions as capital gains in certain cases, see section 
1231(a) and regulations issued thereunder. For portion of war loss 
recoveries treated as gain on involuntary conversion, see section 
1332(b)(3) and regulations issued thereunder.

(Secs. 1033 (90 Stat. 1920, 26 U.S.C. 1033), and 7805 (68A Stat. 917, 26 
U.S.C. 7805))

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6856, 30 FR 
13318, Oct. 20, 1965; T.D. 7625, 44 FR 31013, May 30, 1979; T.D. 7758, 
46 FR 6925, Jan. 22, 1981]



Sec.  1.1033(a)-2  Involuntary conversion into similar property, 
into money or into dissimilar property.

    (a) In general. The term disposition of the converted property means 
the destruction, theft, seizure, requisition, or condemnation of the 
converted property, or the sale or exchange of such property under 
threat or imminence of requisition or condemnation.
    (b) Conversion into similar property. If property (as a result of 
its destruction in whole or in part, theft, seizure, or requisition or 
condemnation or threat or imminence thereof) is compulsorily or 
involuntarily converted only into property similar or related in service 
or use to the property so converted, no gain shall be recognized. Such 
nonrecognition of gain is mandatory.
    (c) Conversion into money or into dissimilar property. (1) If 
property (as a result of its destruction in whole or in part, theft, 
seizure, or requisition or condemnation or threat or imminence thereof) 
is compulsorily or involuntarily converted into money or into property 
not similar or related in service or use to the converted property, the 
gain, if any, shall be recognized, at the election of the taxpayer, only 
to the extent that the amount realized upon such conversion exceeds the 
cost of other property purchased by the taxpayer which is similar or 
related in service or use to the property so converted, or the cost of 
stock of a corporation owning such other property which is purchased by 
the taxpayer in the acquisition of control of such corporation, if the 
taxpayer purchased such other property, or such stock, for the purpose 
of replacing the property so converted and during the period specified 
in subparagraph (3) of this paragraph. For the purposes of section 1033, 
the term control means the ownership of stock possessing at least 80 
percent of the total combined voting power of all classes of stock 
entitled to vote and at least 80 percent of the total number of shares 
of all other classes of stock of the corporation.
    (2) All of the details in connection with an involuntary conversion 
of property at a gain (including those relating to the replacement of 
the converted property, or a decision not to replace, or the expiration 
of the period for replacement) shall be reported in the return for the 
taxable year or years in which any of such gain is realized. An election 
to have such gain recognized only to the extent provided in subparagraph 
(1) of this paragraph shall be made by including such gain in gross 
income for such year or years only to such extent. If, at the time of 
filing such a return, the period within which the converted property 
must be replaced has expired, or if such an election is not desired, the 
gain should be included in gross income for such year or years in the 
regular manner. A failure to so include such gain in gross income in the 
regular manner shall be deemed to be an election by the taxpayer to have 
such gain recognized only to the extent provided in subparagraph (1) of 
this paragraph even though the details in connection with the conversion 
are not reported in such return. If, after having made an election under 
section 1033(a)(2), the converted property is not replaced within the 
required period of time, or replacement is made at a cost lower than was 
anticipated at the time of the election, or a decision is made not to 
replace, the tax liability for the year or years for which the election 
was made shall be recomputed. Such recomputation should be in the form 
of an amended return. If a decision is made to make an election under 
section 1033(a)(2) after the filing of the return and the payment of the 
tax for the year or years in which any of the gain

[[Page 149]]

on an involuntary conversion is realized and before the expiration of 
the period within which the converted property must be replaced, a claim 
for credit or refund for such year or years should be filed. If the 
replacement of the converted property occurs in a year or years in which 
none of the gain on the conversion is realized, all of the details in 
connection with such replacement shall be reported in the return for 
such year or years.
    (3) The period referred to in subparagraphs (1) and (2) of this 
paragraph is the period of time commencing with the date of the 
disposition of the converted property, or the date of the beginning of 
the threat or imminence of requisition or condemnation of the converted 
property, whichever is earlier, and ending 2 years (or, in the case of a 
disposition occurring before December 31, 1969, 1 year) after the close 
of the first taxable year in which any part of the gain upon the 
conversion is realized, or at the close of such later date as may be 
designated pursuant to an application of the taxpayer. Such application 
shall be made prior to the expiration of 2 years (or, in the case of a 
disposition occurring before December 31, 1969, 1 year) after the close 
of the first taxable year in which any part of the gain from the 
conversion is realized, unless the taxpayer can show to the satisfaction 
of the district director--
    (i) Reasonable cause for not having filed the application within the 
required period of time, and
    (ii) The filing of such application was made within a reasonable 
time after the expiration of the required period of time. The 
application shall contain all of the details in connection with the 
involuntary conversion. Such application shall be made to the district 
director for the internal revenue district in which the return is filed 
for the first taxable year in which any of the gain from the involuntary 
conversion is realized. No extension of time shall be granted pursuant 
to such application unless the taxpayer can show reasonable cause for 
not being able to replace the converted property within the required 
period of time.

See section 1033(g)(4) and Sec.  1.1033(g)-1 for the circumstances under 
which, in the case of the conversion of real property held either for 
productive use in trade or business or for investment, the 2-year period 
referred to in this paragraph (c)(3) shall be extended to 3 years.
    (4) Property or stock purchased before the disposition of the 
converted property shall be considered to have been purchased for the 
purpose of replacing the converted property only if such property or 
stock is held by the taxpayer on the date of the disposition of the 
converted property. Property or stock shall be considered to have been 
purchased only if, but for the provisions of section 1033(b), the 
unadjusted basis of such property or stock would be its cost to the 
taxpayer within the meaning of section 1012. If the taxpayers unadjusted 
basis of the replacement property would be determined, in the absence of 
section 1033(b), under any of the exceptions referred to in section 
1012, the unadjusted basis of the property would not be its cost within 
the meaning of section 1012. For example, if property similar or related 
in service or use to the converted property is acquired by gift and its 
basis is determined under section 1015, such property will not qualify 
as a replacement for the converted property.
    (5) If a taxpayer makes an election under section 1033(a)(2), any 
deficiency, for any taxable year in which any part of the gain upon the 
conversion is realized, which is attributable to such gain may be 
assessed at any time before the expiration of three years from the date 
the district director with whom the return for such year has been filed 
is notified by the taxpayer of the replacement of the converted property 
or of an intention not to replace, or of a failure to replace, within 
the required period, notwithstanding the provisions of section 6212(c) 
or the provisions of any other law or rule of law which would otherwise 
prevent such assessment. If replacement has been made, such notification 
shall contain all of the details in connection with such replacement. 
Such notification should be made in the return for the taxable year or 
years in which the replacement occurs, or the intention not to replace 
is formed, or the period for replacement expires, if this return is 
filed with such district

[[Page 150]]

director. If this return is not filed with such district director, then 
such notification shall be made to such district director at the time of 
filing this return. If the taxpayer so desires, he may, in either event, 
also notify such district director before the filing of such return.
    (6) If a taxpayer makes an election under section 1033(a)(2) and the 
replacement property or stock was purchased before the beginning of the 
last taxable year in which any part of the gain upon the conversion is 
realized, any deficiency, for any taxable year ending before such last 
taxable year, which is attributable to such election may be assessed at 
any time before the expiration of the period within which a deficiency 
for such last taxable year may be assessed, notwithstanding the 
provisions of section 6212(c) or 6501 or the provisions of any law or 
rule of law which would otherwise prevent such assessment.
    (7) If the taxpayer makes an election under section 1033(a)(2), the 
gain upon the conversion shall be recognized to the extent that the 
amount realized upon such conversion exceeds the cost of the replacement 
property or stock, regardless of whether such amount is realized in one 
or more taxable years.
    (8) The proceeds of a use and occupancy insurance contract, which by 
its terms insured against actual loss sustained of net profits in the 
business, are not proceeds of an involuntary conversion but are income 
in the same manner that the profits for which they are substituted would 
have been.
    (9) There is no investment in property similar in character and 
devoted to a similar use if--
    (i) The proceeds of unimproved real estate, taken upon condemnation 
proceedings, are invested in improved real estate.
    (ii) The proceeds of conversion of real property are applied in 
reduction of indebtedness previously incurred in the purchase or a 
leasehold.
    (iii) The owner of a requisitioned tug uses the proceeds to buy 
barges.
    (10) If, in a condemnation proceeding, the Government retains out of 
the award sufficient funds to satisfy special assessments levied against 
the remaining portion of the plot or parcel of real estate affected for 
benefits accruing in connection with the condemnation, the amount so 
retained shall be deducted from the gross award in determining the 
amount of the net award.
    (11) If, in a condemnation proceeding, the Government retains out of 
the award sufficient funds to satisfy liens (other than liens due to 
special assessments levied against the remaining portion of the plot or 
parcel of real estate affected for benefits accruing in connection with 
the condemnation) and mortgages against the property, and itself pays 
the same, the amount so retained shall not be deducted from the gross 
award in determining the amount of the net award. If, in a condemnation 
proceeding, the Government makes an award to a mortgagee to satisfy a 
mortgage on the condemned property, the amount of such award shall be 
considered as a part of the amount realized upon the conversion 
regardless of whether or not the taxpayer was personally liable for the 
mortgage debt. Thus, if a taxpayer has acquired property worth $100,000 
subject to a $50,000 mortgage (regardless of whether or not he was 
personally liable for the mortgage debt) and, in a condemnation 
proceeding, the Government awards the taxpayer $60,000 and awards the 
mortgagee $50,000 in satisfaction of the mortgage, the entire $110,000 
is considered to be the amount realized by the taxpayer.
    (12) An amount expended for replacement of an asset, in excess of 
the recovery for loss, represents a capital expenditure and is not a 
deductible loss for income tax purposes.

(Secs. 1033 (90 Stat. 1920, 26 U.S.C. 1033), and 7805 (68A Stat. 917, 26 
U.S.C. 7805)

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6679, 28 FR 
10515, Oct. 1, 1963; T.D. 7075, 35 FR 17996, Nov. 24, 1970; T.D. 7625, 
44 FR 31013, May 30, 1979; T.D. 7758, 46 FR 6925, Jan. 22, 1981]



Sec.  1.1033(a)-3  Involuntary conversion of principal residence.

    Section 1033 shall apply in the case of property used by the 
taxpayer as his principal residence if the destruction, theft, seizure, 
requisition, or condemnation of such residence, or the sale or exchange 
of such residence

[[Page 151]]

under threat or imminence thereof, occurs before January 1, 1951, or 
after December 31, 1953. However, section 1033 shall not apply to the 
seizure, requisition, or condemnation (but not destruction), or the sale 
or exchange under threat or imminence thereof, of such residence 
property if the seizure, requisition, condemnation, sale, or exchange 
occurs after December 31, 1957, and if the taxpayer properly elects 
under section 1034(i) to treat the transaction as a sale (see paragraph 
(h)(2)(ii) of Sec.  1.1034-1). See section 121 and paragraphs (d) and 
(g) of Sec.  1.121-5 for special rules relating to the involuntary 
conversion of a principal residence of individuals who have attained age 
65.

[T.D. 6856, 30 FR 13319, Oct. 20, 1965. Redesignated and amended by T.D. 
7625, 44 FR 31013, May 30, 1979]



Sec.  1.1033(b)-1  Basis of property acquired as a result of 
an involuntary conversion.

    (a) The provisions of the first sentence of section 1033(b) may be 
illustrated by the following example:

    Example: A's vessel which has an adjusted basis of $100,000 is 
destroyed in 1950 and A receives in 1951 insurance in the amount of 
$200,000. If A invests $150,000 in a new vessel, taxable gain to the 
extent of $50,000 would be recognized. The basis of the new vessel is 
$100,000; that is, the adjusted basis of the old vessel ($100,000) minus 
the money received by the taxpayer which was not expended in the 
acquisition of the new vessel ($50,000) plus the amount of gain 
recognized upon the conversion ($50,000). If any amount in excess of the 
proceeds of the conversion is expended in the acquisition of the new 
property, such amount may be added to the basis otherwise determined.

    (b) The provisions of the last sentence of section 1033(b) may be 
illustrated by the following example:

    Example: A taxpayer realizes $22,000 from the involuntary conversion 
of his barn in 1955; the adjusted basis of the barn to him was $10,000, 
and he spent in the same year $20,000 for a new barn which resulted in 
the nonrecognition of $10,000 of the $12,000 gain on the conversion. The 
basis of the new barn to the taxpayer would be $10,000--the cost of the 
new barn ($20,000) less the amount of the gain not recognized on the 
conversion ($10,000). The basis of the new barn would not be a 
substituted basis in the hands of the taxpayer within the meaning of 
section 1016(b)(2). If the replacement of the converted barn had been 
made by the purchase of two smaller barns which, together, were similar 
or related in service or use to the converted barn and which cost $8,000 
and $12,000, respectively, then the basis of the two barns would be 
$4,000 and $6,000, respectively, the total basis of the purchased 
property ($10,000) allocated in proportion to their respective costs 
(8,000/ 20,000 of $10,000 or $4,000; and 12,000/20,000 of $10,000, or 
$6,000).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated and amended by T.D. 7625, 44 FR 31013, May 30, 1979]



Sec.  1.1033(c)-1  Disposition of excess property within irrigation project 
deemed to be involuntary conversion.

    (a) The sale, exchange, or other disposition occurring in a taxable 
year to which the Internal Revenue Code of 1954 applies, of excess lands 
lying within an irrigation project or division in order to conform to 
acreage limitations of the Federal reclamation laws effective with 
respect to such project or division shall be treated as an involuntary 
conversion to which the provisions of section 1033 and the regulations 
thereunder shall be applicable. The term excess lands means irrigable 
lands within an irrigation project or division held by one owner in 
excess of the amount of irrigable land held by such owner entitled to 
receive water under the Federal reclamation laws applicable to such 
owner in such project or division. Such excess lands may be either (1) 
lands receiving no water from the project or division, or (2) lands 
receiving water only because the owner thereof has executed a valid 
recordable contract agreeing to sell such lands under terms and 
conditions satisfactory to the Secretary of the Interior.
    (b) If a disposition in order to conform to the acreage limitation 
provisions of Federal reclamation laws includes property other than 
excess lands (as, for example, where the excess lands alone do not 
constitute a marketable parcel) the provisions of section 1033(d) shall 
apply only to the part of the disposition that relates to excess lands.
    (c) The provisions of Sec.  1.1033(a)-2 shall be applicable in the 
case of dispositions treated as involuntary conversions under this 
section. The details in connection with such a disposition required to 
be reported under paragraph

[[Page 152]]

(c)(2) of Sec.  1.1033(a)-2 shall include the authority whereby the 
lands disposed of are considered excess lands, as defined in this 
section, and a statement that such disposition is not part of a plan 
contemplating the disposition of all or any nonexcess land within the 
irrigation project or division.
    (d) The term involuntary conversion, where it appears in subtitle A 
of the Code or the regulations thereunder, includes dispositions of 
excess property within irrigation projects described in this section. 
(See, e.g., section 1231 and the regulations thereunder.)

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated and amended by T.D. 7625, 44 FR 31013, May 30, 1979]



Sec.  1.1033(d)-1  Destruction or disposition of livestock because of disease.

    (a) The destruction occurring in a taxable year to which the 
Internal Revenue Code of 1954 applies, of livestock by, or on account 
of, disease, or the sale or exchange, in such a year, of livestock 
because of disease, shall be treated as an involuntary conversion to 
which the provisions of section 1033 and the regulations thereunder 
shall be applicable. Livestock which are killed either because they are 
diseased or because of exposure to disease shall be considered destroyed 
on account of disease. Livestock which are sold or exchanged because 
they are diseased or have been exposed to disease, and would not 
otherwise have been sold or exchanged at that particular time shall be 
considered sold or exchanged because of disease.
    (b) The provisions of Sec.  1.1033(a)-2 shall be applicable in the 
case of a disposition treated as an involuntary conversion under this 
section. The details in connection with such a disposition required to 
be reported under paragraph (c)(2) of Sec.  1.1033(a)-2 shall include a 
recital of the evidence that the livestock were destroyed by or on 
account of disease, or sold or exchanged because of disease.
    (c) The term involuntary conversion, where it appears in subtitle A 
of the Code or the regulations thereunder, includes disposition of 
livestock described in this section. (See, e.g., section 1231 and the 
regulations thereunder.)

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated by T.D. 7625, 44 FR 31013, May 30, 1979]



Sec.  1.1033(e)-1  Sale or exchange of livestock solely on account of drought.

    (a) The sale or exchange of livestock (other than poultry) held for 
draft, breeding, or dairy purposes in excess of the number the taxpayer 
would sell or exchange during the taxable year if he followed his usual 
business practices shall be treated as an involuntary conversion to 
which section 1033 and the regulations thereunder are applicable if the 
sale or exchange of such livestock by the taxpayer is solely on account 
of drought. Section 1033(e) and this section shall apply only to sales 
and exchanges occurring after December 31, 1955.
    (b) To qualify under section 1033(e) and this section, the sale or 
exchange of the livestock need not take place in a drought area. While 
it is not necessary that the livestock be held in a drought area, the 
sale or exchange of the livestock must be solely on account of drought 
conditions the existence of which affected the water, grazing, or other 
requirements of the livestock so as to necessitate their sale or 
exchange.
    (c) The total sales or exchanges of livestock held for draft, 
breeding, or dairy purposes occurring in any taxable year which may 
qualify as an involuntary conversion under section 1033(e) and this 
section is limited to the excess of the total number of such livestock 
sold or exchanged during the taxable year over the number that the 
taxpayer would have sold or exchanged if he had followed his usual 
business practices, that is, the number he would have been expected to 
sell or exchange under ordinary circumstances if there had been no 
drought. For example, if in the past it has been a taxpayer's practice 
to sell or exchange annually one-half of his herd of dairy cows, only 
the number sold or exchanged solely on account of drought conditions 
which is in excess of one-half of his herd, may qualify as an 
involuntary conversion under section 1033(e) and this section.

[[Page 153]]

    (d) The replacement requirements of section 1033 will be satisfied 
only if the livestock sold or exchanged is replaced within the 
prescribed period with livestock which is similar or related in service 
or use to the livestock sold or exchanged because of drought, that is, 
the new livestock must be functionally the same as the livestock 
involuntarily converted. This means that the new livestock must be held 
for the same useful purpose as the old was held. Thus, although dairy 
cows could be replaced by dairy cows, a taxpayer could not replace draft 
animals with breeding or dairy animals.
    (e) The provisions of Sec.  1.1033(a)-2 shall be applicable in the 
case of a sale or exchange treated as an involuntary conversion under 
this section. The details in connection with such a disposition required 
to be reported under paragraph (c)(2) of Sec.  1.1033(a)-2 shall 
include:
    (1) Evidence of the existence of the drought conditions which forced 
the sale or exchange of the livestock;
    (2) A computation of the amount of gain realized on the sale or 
exchange;
    (3) The number and kind of livestock sold or exchanged; and
    (4) The number of livestocks of each kind that would have been sold 
or exchanged under the usual business practice in the absence of the 
drought.
    (f) The term involuntary conversion, where it appears in subtitle A 
of the Code or the regulations thereunder, includes the sale or exchange 
of livestock described in this section.
    (g) The provisions of section 1033(e) and this section apply to 
taxable years ending after December 31, 1955, but only in the case of 
sales or exchange of livestock after December 31, 1955.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated by T.D. 7625, 44 FR 31013, May 30, 1979]



Sec.  1.1033(g)-1  Condemnation of real property held for productive use 
in trade or business or for investment.

    (a) Special rule in general. This section provides special rules for 
applying section 1033 with respect to certain dispositions, occurring 
after December 31, 1957, of real property held either for productive use 
in trade or business or for investment (not including stock in trade or 
other property held primarily for sale). For this purpose, disposition 
means the seizure, requisition, or condemnation (but not destruction) of 
the converted property, or the sale or exchange of such property under 
threat or imminence of seizure, requisition, or condemnation. In such 
cases, for purposes of applying section 1033, the replacement of such 
property with property of like kind to be held either for productive use 
in trade or business or for investment shall be treated as property 
similar or related in service or use to the property so converted. For 
principles in determining whether the replacement property is property 
of like kind, see paragraph (b) of Sec.  1.1031(a)-1.
    (b) Election to treat outdoor advertising displays as real 
property--(1) In general. Under section 1033(g)(3) of the Code, a 
taxpayer may elect to treat property which constitutes an outdoor 
advertising display as real property for purposes of chapter 1 of the 
Code. The election is available for taxable years beginning after 
December 31, 1970. In the case of an election made on or before July 21, 
1981, the election is available whether or not the period for filing a 
claim for credit or refund under section 6511 has expired. No election 
may be made with respect to any property for which (i) the investment 
credit under section 38 has been claimed, or (ii) an election to expense 
certain depreciable business assets under section 179(a) is in effect. 
The election once made applies to all outdoor advertising displays of 
the taxpayer which may be made the subject of an election under this 
paragraph, including all outdoor advertising displays acquired or 
constructed by the taxpayer in a taxable year after the taxable year for 
which the election is made. The election applies with respect to 
dispositions during the taxable year for which made and all subsequent 
taxable years (unless an effective revocation is made pursuant to 
paragraph (b)(2) (ii) or (iii)).
    (2) Election--(i) Time and manner of making election--(A) In 
general. Unless otherwise provided in the return or in the instructions 
for a return for a taxable year, any election made under section 
1033(g)(3) shall be made by attaching a statement to the return (or 
amended return if filed on or before

[[Page 154]]

July 21, 1981) for the first taxable year to which the election is to 
apply. Any election made under this paragraph must be made not later 
than the time, including extensions thereof, prescribed by law for 
filing the income tax return for such taxable year or July 21, 1981, 
whichever occurs last. If a taxpayer makes an election (or revokes an 
election under subdivision (ii) or (iii) of this subparagraph (b) (2)) 
for a taxable year for which he or she has previously filed a return, 
the return for that taxable year and all other taxable years affected by 
the election (or revocation) must be amended to reflect any tax 
consequences of the election (or revocation). However, no return for a 
taxable year for which the period for filing a claim for credit or 
refund under section 6511 has expired may be amended to make any changes 
other than those resulting from the election (or revocation). In order 
for the election (or revocation) to be effective, the taxpayer must 
remit with the amended return any additional tax due resulting from the 
election (or revocation), notwithstanding the provisions of section 
6212(c) or 6501 or the provisions of any other law which would prevent 
assessment or collection of such tax.
    (B) Statement required when making election. The statement required 
when making the election must clearly indicate that the election to 
treat outdoor advertising displays as real property is being made.
    (ii) Revocation of election by Commissioner's consent. Except as 
otherwise provided in paragraph (b)(2)(iii) of this section, an election 
under section 1033(g)(3) shall be irrevocable unless consent to revoke 
is obtained from the Commissioner. In order to secure the Commissioner's 
consent to revoke an election, the taxpayer must file a request for 
revocation of election with the Commissioner of Internal Revenue, 
Washington, DC 20224. The request for revocation shall include--
    (A) The taxpayer's name, address, and taxpayer identification 
number,
    (B) The date on which and taxable year for which the election was 
made and the Internal Revenue Service office with which it was filed,
    (C) Identification of all outdoor advertising displays of the 
taxpayer to which the revocation would apply (including the location, 
date of purchase, and adjusted basis in such property),
    (D) The effective date desired for the revocation, and
    (E) The reasons for requesting the revocation.

The Commissioner may require such other information as may be necessary 
in order to determine whether the requested revocation will be 
permitted. The Commissioner may prescribe administrative procedures 
(subject to such limitations, terms and conditions as he deems 
necessary) to obtain his consent to permit the taxpayer to revoke the 
election. The taxpayer may submit a request for revocation for any 
taxable year for which the period of limitations for filing a claim for 
credit or refund or overpayment of tax has not expired.
    (iii) Revocation where election was made on or before December 11, 
1979. In the case of an election made on or before December 11, 1979, 
the taxpayer may revoke such election provided such revocation is made 
not later than March 23, 1981. The request for revocation shall be made 
in conformity with the requirements of paragraph (b)(2)(ii), except 
that, in lieu of the information required by paragraph (b)(2)(ii)(E), 
the taxpayer shall state that the revocation is being made pursuant to 
this paragraph. In addition, the taxpayer must forward, with the 
statement of revocation, copies of his or her tax returns, including 
both the original return and any amended returns, for the taxable year 
in which the original election was made and for all subsequent years and 
must remit any additional tax due as a result of the revocation.
    (3) Definition of outdoor advertising display. The term outdoor 
advertising display means a rigidly assembled sign, display, or device 
that constitutes, or is used to display, a commercial or other 
advertisement to the public and is permanently affixed to the ground or 
permanently attached to a building or other inherently permanent 
structure. The term includes highway billboards affixed to the ground 
with wood or metal poles, pipes, or beams, with or without concrete 
footings.

[[Page 155]]

    (4) Character of replacement property. For purposes of section 
1033(g), an interest in real property purchased as replacement property 
for a compulsorily or involuntarily converted outdoor advertising 
display (with respect to which an election under this section is in 
effect) shall be considered property of a like kind as the property 
converted even though a taxpayer's interest in the replacement property 
is different from the interest held in the property converted. Thus, for 
example, a fee simple interest in real estate acquired to replace a 
converted billboard and a 5-year leasehold interest in the real property 
on which the billboard was located qualifies as property of a like kind 
under this section.
    (c) Special rule for period within which property must be replaced. 
In the case of a disposition described in paragraph (a) of this section, 
section 1033(a)(2)(B) and Sec.  1.1033(a)-2(c)(3) (relating to the 
period within which the property must be replaced) shall be applied by 
substituting 3 years for 2 years. This paragraph shall apply to any 
disposition described in section 1033(f)(1) and paragraph (a) of this 
section occurring after December 31, 1974, unless a condemnation 
proceeding with respect to the property was begun before October 4, 
1976. Thus, regardless of when the property is disposed of, the taxpayer 
will not be eligible for the 3-year replacement period if a condemnation 
proceeding was begun before October 4, 1976. However, if the property is 
disposed of after December 31, 1974, and the condemnation proceeding was 
begun (if at all) after October 4, 1976, then the taxpayer is eligible 
for the 3-year replacement period. For the purposes of this paragraph, 
whether a condemnation proceeding is considered as having begun is 
determined under the applicable State or Federal procedural law.
    (d) Limitation on application of special rule. This section shall 
not apply to the purchase of stock in the acquisition of control of a 
corporation described in section 1033(a)(2)(A).

(Secs. 1033 (90 Stat. 1920, 26 U.S.C. 1033), and 7805 (68A Stat. 917, 26 
U.S.C. 7805))

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated and amended by T.D. 7625, 44 FR 31013, May 30, 1979; 44 FR 
38458, July 2, 1979. Further redesignated and amended by T.D. 7758, 46 
FR 6925, Jan. 22, 1981; T.D. 7758, 46 FR 23235, Apr. 24, 1981; T.D. 
8121, 52 FR 414, Jan. 6, 1987]



Sec.  1.1033(h)-1  Effective date.

    Except as provided otherwise in Sec.  1.1033(e)-1 and Sec.  
1.1033(g)-1, the provisions of section 1033 and the regulations 
thereunder are effective for taxable years beginning after December 31, 
1953, and ending after August 16, 1954.

(Secs. 1033 (90 Stat. 1920, 26 U.S.C. 1033), and 7805 (68A Stat. 917, 26 
U.S.C. 7805))

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated and amended by T.D. 7625, 44 FR 31013, May 30, 1979. 
Further redesignated and amended by T.D. 7758, 46 FR 6925, Jan. 22, 
1981]



Sec.  1.1035-1  Certain exchanges of insurance policies.

    Under the provisions of section 1035 no gain or loss is recognized 
on the exchange of:
    (a) A contract of life insurance for another contract of life 
insurance or for an endowment or annuity contract (section 1035(a)(1));
    (b) A contract of endowment insurance for another contract of 
endowment insurance providing for regular payments beginning at a date 
not later than the date payments would have begun under the contract 
exchanged, or an annuity contract (section 1035(a)(2)); or
    (c) An annuity contract for another annuity contract (section 
1035(a)(3)), but section 1035 does not apply to such exchanges if the 
policies exchanged to not relate to the same insured. The exchange, 
without recognition of gain or loss, of an annuity contract for another 
annuity contract under section 1035(a)(3) is limited to cases where the 
same person or persons are the obligee or obligees under the contract 
received in exchange as under the original contract. This section and 
section 1035 do not apply to transactions involving the exchange of an 
endowment contract or

[[Page 156]]

annuity contract for a life insurance contract, nor an annuity contract 
for an endowment contract. In the case of such exchanges, any gain or 
loss shall be recognized. In the case of exchanges which would be 
governed by section 1035 except for the fact that the property received 
in exchange consists not only of property which could otherwise be 
received without the recognition of gain or loss, but also of other 
property or money, see section 1031 (b) and (c) and the regulations 
thereunder. Such an exchange does not come within the provisions of 
section 1035. Determination of the basis of property acquired in an 
exchange under section 1035(a) shall be governed by section 1031(d) and 
the regulations thereunder.



Sec.  1.1036-1  Stock for stock of the same corporation.

    (a) Section 1036 permits the exchange, without the recognition of 
gain or loss, of common stock for common stock, or of preferred stock 
for preferred stock, in the same corporation. Section 1036 applies even 
though voting stock is exchanged for nonvoting stock or nonvoting stock 
is exchanged for voting stock. It is not limited to an exchange between 
two individual stockholders; it includes a transaction between a 
stockholder and the corporation. However, a transaction between a 
stockholder and the corporation may qualify not only under section 
1036(a), but also under section 368(a)(1)(E) (recapitalization) or 
section 305(a) (distribution of stock and stock rights). The provisions 
of section 1036(a) do not apply if stock is exchanged for bonds, or 
preferred stock is exchanged for common stock, or common stock is 
exchanged for preferred stock, or common stock in one corporation is 
exchanged for common stock in another corporation. See paragraph (l) of 
section 1301-1 for certain transactions treated as distributions under 
section 301. See paragraph (e)(5) of Sec.  1.368-2 for certain 
transactions which result in deemed distributions under section 305(c) 
to which sections 305(b)(4) and 301 apply.
    (b) For rules relating to recognition of gain or loss where an 
exchange is not wholly in kind, see subsections (b) and (c) of section 
1031. For rules relating to the basis of property acquired in an 
exchange described in paragraph (a) of this section, see subsection (d) 
of section 1031.
    (c) A transfer is not within the provisions of section 1036(a) if as 
part of the consideration the other party to the exchange assumes a 
liability of the taxpayer (or if the property transferred is subject to 
a liability), but the transfer, if otherwise qualified, will be within 
the provisions of section 1031(b).
    (d) Nonqualified preferred stock. See Sec.  1.356-7(a) for the 
applicability of the definition of nonqualified preferred stock in 
section 351(g)(2) for stock issued prior to June 9, 1997, and for stock 
issued in transactions occurring after June 8, 1997, that are described 
in section 1014(f)(2) of the Taxpayer Relief Act of 1997, Public Law 
105-34 (111 Stat. 788, 921).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 7281, 38 FR 
18540, July 12, 1973; T.D. 8904, 65 FR 58652, Oct. 2, 2000]



Sec.  1.1037-1  Certain exchanges of United States obligations.

    (a) Nonrecognition of gain or loss--(1) In general. Section 1037(a) 
provides for the nonrecognition of gain or loss on the surrender to the 
United States of obligations of the United States issued under the 
Second Liberty Bond Act (31 U.S.C. 774(2)) when such obligations are 
exchanged solely for other obligations issued under that Act and the 
Secretary provides by regulations promulgated in connection with the 
issue of such other obligations that gain or loss is not to be 
recognized on such exchange. It is not necessary that at the time of the 
exchange the obligation which is surrendered to the United States be a 
capital asset in the hands of the taxpayer. For purposes of section 
1037(a) and this subparagraph, a circular of the Treasury Department 
which offers to exchange obligations of the United States issued under 
the Second Liberty Bond Act for other obligations issued under that Act 
shall constitute regulations promulgated by the Secretary in connection 
with the issue of the obligations offered to be exchanged if such 
circular contains a declaration by the Secretary that no gain or loss 
shall be recognized for Federal income tax purposes on the exchange

[[Page 157]]

or grants the privilege of continuing to defer the reporting of the 
income of the bonds exchanged until such time as the bonds received in 
the exchange are redeemed or disposed of, or have reached final 
maturity, whichever is earlier. See, for example, regulations of the 
Bureau of the Public Debt, 31 CFR part 339, or Treasury Department 
Circular 1066, 26 FR 8647. The application of section 1037(a) and this 
subparagraph will not be precluded merely because the taxpayer is 
required to pay money on the exchange. See section 1031 and the 
regulations thereunder if the taxpayer receives money on the exchange.
    (2) Recognition of gain or loss postponed. Gain or loss which has 
been realized but not recognized on the exchange of a U.S. obligation 
for another such obligation because of the provisions of section 1037(a) 
(or so much of section 1031 (b) or (c) as related to section 1037(a)) 
shall be recognized at such time as the obligation received in the 
exchange is disposed of, or redeemed, in a transaction other than an 
exchange described in section 1037(a) (or so much of section 1031 (b) or 
(c) as relates to section 1037(a)) or reaches final maturity, whichever 
is earlier, to the extent gain or loss is realized on such later 
transaction.
    (3) Illustrations. The application of this paragraph may be 
illustrated by the following examples, in which it is assumed that the 
taxpayer uses the cash receipts and disbursements method of accounting 
and has never elected under section 454(a) to include in gross income 
currently the annual increase in the redemption price of non-interest-
bearing obligations issued at a discount. In addition, it is assumed 
that the old obligations exchanged are capital assets transferred in an 
exchange in respect of which regulations are promulgated pursuant to 
section 1037(a):

    Example 1. A, the owner of a $1,000 series E U.S. savings bond 
purchased for $750 and bearing an issue date of May 1, 1945, surrenders 
the bond to the United States in exchange solely for series H U.S. 
savings bonds on February 1, 1964, when the series E bond has a 
redemption value of $1,304.80. In the exchange A pays an additional 
$195.20 and obtains three $500 series H bonds. None of the $554.80 gain 
($1,304.80 less $750) realized by A on the series E bond is recognized 
at the time of the exchange.
    Example 2. In 1963, B purchased for $97 a marketable U.S. bond which 
was originally issued at its par value of $100. In 1964 he surrenders 
the bond to the United States in exchange solely for another marketable 
U.S. bond which then has a fair market value of $95. B's loss of $2 on 
the old bond is not recognized at the time of the exchange, and his 
basis for the new bond is $97 under section 1031(d). If it has been 
necessary for B to pay $1 additional consideration in the exchange, his 
basis in the new bond would be $98.
    Example 3. The facts are the same as in example (2) except that B 
also receives $1 interest on the old bond for the period which has 
elapsed since the last interest payment date and that B does not pay any 
additional consideration on the exchange. As in example (2), B has a 
loss of $2 which is not recognized at the time of the exchange and his 
basis in the new bond is $97. In addition, the $1 of interest received 
on the old bond is includible in gross income. B holds the new bond 1 
year and sells it in the market for $99 plus interest. At this time he 
has a gain of $2, the difference between his basis of $97 in the new 
bond and the sales price of such bond. In addition, the interest 
received on the new bond is includible in gross income.
    Example 4. The facts are the same as in example (2), except that in 
addition to the new bond B also receives $1.85 in cash, $0.85 of which 
is interest. The $0.85 interest received is includible in gross income. 
B's loss of $1 ($97 less $96) on the old bond is not recognized at the 
time of the exchange by reason of section 1031(c). Under section 1031(d) 
B's basis in the new bond is $96 (his basis of $97 in the old bond, 
reduced by the $1 cash received in the exchange).
    Example 5. (a) For $975 D subscribes to a marketable U.S. obligation 
which has a face value of $1,000. Thereafter, he surrenders this 
obligation to the United States in exchange solely for a 10-year 
marketable $1,000 obligation which at the time of exchange has a fair 
market value of $930, at which price such obligation is initially 
offered to the public. At the time of issue of the new obligation there 
was no intention to call it before maturity. Five years after the 
exchange D sells the new obligation for $960.
    (b) On the exchange of the old obligation for the new obligation D 
sustains a loss of $45 ($975 less $930), none of which is recognized 
pursuant to section 1037(a).
    (c) The basis of the new obligation in D's hands, determined under 
section 1031(d), is $975 (the same basis as that of the old obligation).
    (d) On the sale of the new obligation D sustains a loss of $15 ($975 
less $960), all of which is recognized by reason of section 1002.
    Example 6. (a) The facts are the same as in example (5), except that 
five years after the exchange D sells the new obligation for $1,020.

[[Page 158]]

    (b) On the exchange of the old obligation for the new obligation D 
sustains a loss of $45 ($975 less $930), none of which is recognized 
pursuant to section 1037(a).
    (c) The basis of the new obligation in D's hands, determined under 
section 1031(d), is $975 (the same basis as that of the old obligation). 
The issue price of the new obligation under section 1232(b)(2) is $930.
    (d) On the sale of the new obligation D realizes a gain of $45 
($1,020 less $975), all of which is recognized by reason of section 
1002. Of this gain of $45, the amount of $35 is treated as ordinary 
income and $10 is treated as long-term capital gain, determined as 
follows:

(1) Ordinary income under first sentence of section
 1232(a)(2)(B) on sale of new obligation:
  Stated redemption price of new obligation at maturity........   $1,000
  Less: Issue price of new obligation under section 1232(b)(2).      930
                                                                --------
  Original issue discount on new obligation....................       70
                                                                ========
  Proration under section 1232(a)(2)(B)(ii): ($70 x 60 months/        35
   120 months).................................................
(2) Long-term capital gain ($45 less $35)......................       10
 

    Example 7. (a) The facts are the same as in example (5), except that 
D retains the new obligation and redeems it at maturity for $1,000.
    (b) On the exchange of the old obligation for the new obligation D 
sustains a loss of $45 ($975 less $930), none of which is recognized 
pursuant to section 1037(a).
    (c) The basis of the new obligation in D's hands, determined under 
section 1031(d), is $975 (the same basis as that of the old obligation). 
The issue price of the new obligation is $930 under section 1232(b)(2).
    (d) On the redemption of the new obligation D realizes a gain of $25 
($1,000 less $975), all of which is recognized by reason of section 
1002. Of this gain of $25, the entire amount is treated as ordinary 
income, determined as follows:

Ordinary income under first sentence of section 1232(a)(2)(B)
 on redemption of new obligation:
  Stated redemption price of new obligation at maturity........   $1,000
  Less: Issue price of new obligation under section 1232(b)(2).      930
                                                                --------
  Original issue discount on new obligation....................       70
                                                                ========
  Proration under section 1232(a)(2)(B)(ii): ($70 x 120 months/       25
   120 months), but such amount not to exceed the $25 gain
   recognized on redemption....................................
 

    (b) Application of section 1232 upon disposition or redemption of 
new obligation--(1) Exchanges involving nonrecognition of gain on 
obligations issued at a discount. If an obligation, the gain on which is 
subject to the first sentence of section 1232(a)(2)(B), because the 
obligation was originally issued at a discount, is surrendered to the 
United States in exchange for another obligation and any part of the 
gain realized on the exchange is not then recognized because of the 
provisions of section 1037(a) (or because of so much of section 1031(b) 
as relates to section 1037(a)), the first sentence of section 
1232(a)(2)(B) shall apply to so much of such unrecognized gain as is 
later recognized upon the disposition or redemption of the obligation 
which is received in the exchange as though the obligation so disposed 
of or redeemed were the obligation surrendered, rather than the 
obligation received, in such exchange. See the first sentence of section 
1037(b)(1). Thus, in effect that portion of the gain which is 
unrecognized on the exchange but is recognized upon the later 
disposition or redemption of the obligation received from the United 
States in the exchange shall be considered as ordinary income in an 
amount which is equal to the gain which, by applying the first sentence 
of section 1232(a)(2)(B) upon the earlier surrender of the old 
obligation to the United States, would have been considered as ordinary 
income if the gain had been recognized upon such earlier exchange. Any 
portion of the gain which is recognized under section 1031(b) upon the 
earlier exchange and is treated at such time as ordinary income shall be 
deducted from the gain which is treated as ordinary income by applying 
the first sentence of section 1232(a)(2)(B) pursuant to this 
subparagraph upon the disposition or redemption of the obligation which 
is received in the earlier exchange. This subparagraph shall apply only 
in a case where on the exchange of United States obligations there was 
some gain not recognized by reason of section 1037(a) (or so much of 
section 1031(b) as relates to section 1037(a)); it shall not apply 
where, only loss was unrecognized by reason of section 1037(a).
    (2) Rules to apply when a nontransferable obligation is surrendered 
in the exchange. For purposes of applying both section 1232(a)(2)(B) and 
subparagraph (1) of this paragraph to the total gain realized on the 
obligation which is later disposed of or redeemed, if the obligation 
surrendered to the United

[[Page 159]]

States in the earlier exchange is a nontransferable obligation described 
in section 454 (a) or (c)--
    (i) The aggregate amount considered, with respect to the obligation 
so surrendered in the earlier exchange, as ordinary income shall not 
exceed the difference between the issue price of the surrendered 
obligation and the stated redemption price of the surrendered obligation 
which applied at the time of the earlier exchange, and
    (ii) The issue price of the obligation which is received from the 
United States in the earlier exchange shall be considered to be the 
stated redemption price of the surrendered obligation which applied at 
the time of the earlier exchange, increased by the amount of other 
consideration (if any) paid to the United States as part of the earlier 
exchange.


If the obligation received in the earlier exchange is a nontransferable 
obligation described in section 454(c) and such obligation is partially 
redeemed before final maturity or partially disposed of by being 
partially reissued to another owner, the amount determined by applying 
subdivision (i) of this subparagraph shall be determined on a basis 
proportional to the total denomination of obligations redeemed or 
disposed of. See paragraph (c) of Sec.  1.454-1.
    (3) Long-term capital gain. If, in a case where both subparagraphs 
(1) and (2) of this paragraph are applied, the total gain realized on 
the redemption or disposition of the obligation which is received from 
the United States in the exchange to which section 1037(a) (or so much 
of section 1031(b) as related to section 1037(a)) applies exceeds the 
amount of gain which, by applying such subparagraphs, is treated as 
ordinary income, the gain in excess of such amount shall be treated as 
long-term capital gain.
    (4) Illustrations. The application of this paragraph may be 
illustrated by the following examples, in which it is assumed that the 
taxpayer uses the cash receipts and disbursements method of accounting 
and has never elected under section 454(a) to include in gross income 
currently the annual increase in the redemption price of non-interest-
bearing obligations issued at a discount. In addition, it is assumed 
that the old obligations exchanged are capital assets transferred in an 
exchange in respect of which regulations are promulgated pursuant to 
section 1037(a):

    Example 1. (a) A purchased a noninterest-bearing nontransferable 
U.S. bond for $74 which was issued after December 31, 1954, and 
redeemable in 10 years for $100. Several years later, when the stated 
redemption value of such bond is $94.50, A surrenders it to the United 
States in exchange for $1 in cash and a 10-year marketable bond having a 
face value of $100. On the date of exchange the bond received in the 
exchange has a fair market value of $96. Less than one month after the 
exchange, A sells the new bond for $96.
    (b) On the exchange of the old bond for the new bond A realizes a 
gain of $23, determined as follows:

Amount realized (a new bond worth $96 plus $1 cash)..............    $97
Less: Adjusted basis of old bond.................................     74
                                                                  ------
    Gain realized................................................     23
 

    Pursuant to so much of section 1031(b) as applies to section 
1037(a), the amount of such gain which is recognized is $1 (the money 
received). Such recognized gain of $1 is treated as ordinary income. On 
the exchange of the old bond a gain of $22 ($23 less $1) is not 
recognized.
    (c) The basis of the new bond in A's hands, determined under section 
1031(d) is $74 (the basis of the old bond, decreased by the $1 received 
in cash and increased by the $1 gain recognized on the exchange).
    (d) On the sale of the new bond A realizes a gain of $22 ($96 less 
$74), all of which is recognized by reason of section 1002. Of this gain 
of $22, the amount of $19.50 is treated as ordinary income and $2.50 is 
treated as long-term capital gain, determined as follows:

(1) Ordinary income, treating sale of new bond as though
 a sale of old bond and applying section 1037(b)(1)(A):
  Stated redemption price of old bond...................          $94.50
  Less: Issue price of old bond.........................           74.00
                                         -----------------
    Aggregate gain under section 1037(b)(1)(A) (not to             20.50
     exceed $22 not recognized at time of exchange).....
    Less: Amount of such gain recognized at time of                 1.00
     exchange...........................................
                                         -----------------
  Ordinary income.......................................           19.50
                                         =================
(2) Ordinary income under first sentence of section
 1232(a)(2)(B), applying section 1037(b)(1)(B) to sale
 of new bond:
  Stated redemption price of new bond at         $100.00
   maturity.............................
  Less: Issue price of new bond under              94.50
   section 1037(b)(1)(B) ($94.50 plus $0
   additional consideration paid on
   exchange)............................
                                         ----------------

[[Page 160]]

 
  Original issue discount on new bond...            5.50
                                         ================
  Proration under section                 ..............               0
   1232(a)(2)(B)(ii): ($5.50 x 0 months/
   120 months)..........................
                                                         ---------------
(3) Total ordinary income (sum of subparagraphs (1) and            19.50
 (2))...................................................
(4) Long-term capital gain ($22 less $19.50)............            2.50
 

    Example 2. (a) The facts are the same as in example (1), except 
that, less than one month after the exchange of the old bond, the new 
bond is sold for $92.
    (b) On the sale of the new bond A realizes a gain of $18 ($92 less 
$74), all of which is recognized by reason of section 1002. Of this 
gain, the entire amount of $18 is treated as ordinary income. This 
amount is determined as provided in paragraph (d)(1) of example (1) 
except that the ordinary income of $19.50 is limited to the $18 
recognized on the sale of the new bond.
    Example 3. (a) The facts are the same as in example (1), except that 
2 years after the exchange of the old bond A sells the new bond for $98.
    (b) On the sale of the new bond A realizes a gain of $24 ($98 less 
$74), all of which is recognized by reason of section 1002. Of this gain 
of $24, the amount of $20.60 is treated as ordinary income and $3.40 is 
treated as long-term capital gain, determined as follows:

(1) Ordinary income applicable to old bond (determined as         $19.50
 provided in paragraph (d)(1) of example (1)).................
(2) Ordinary income applicable to new bond (determined as           1.10
 provided in paragraph (d)(2) of example (1), except that the
 proration of the original issue discount under section
 1232(a)(2)(B)(ii) amounts to $1.10 ($5.50 x 24 months/120
 months)......................................................
                                                               ---------
(3) Total ordinary income (sum of subparagraphs (1) and (2))..     20.60
(4) Long-term capital gain ($24 less $20.60)..................      3.40
 

    Example 4. (a) The facts are the same as in example (1), except that 
A retains the new bond and redeems it at maturity for $100.
    (b) On the redemption of the new bond A realizes a gain of $26 ($100 
less $74), all of which is recognized by reason of section 1002. Of this 
gain of $26, the amount of $25 is treated as ordinary income and $1 is 
treated as long-term capital gain, determined as follows:

(1) Ordinary income applicable to old bond (determined as         $19.50
 provided in paragraph (d)(1) of example (1)).................
(2) Ordinary income applicable to new bond (determined as           5.50
 provided in paragraph (d)(2) of example (1), except that the
 proration of the original issue discount under section
 1232(a)(2)(B)(ii) amounts to $5.50 ($5.50 x 120 months/120
 months)).....................................................
                                                               ---------
(3) Total ordinary income (sum of subparagraphs (1) and (2))..     25.00
(4) Long-term capital gain ($26 less $25).....................      1.00
 

    Example 5. (a) In 1958 B purchased for $7,500 a series E United 
States savings bond having a face value of $10,000. In 1965 when the 
stated redemption value of the series E bond is $9,760, B surrenders it 
to the United States in exchange solely for a $10,000 series H U.S. 
savings bond, after paying $240 additional consideration. B retains the 
series H bond and redeems it at maturity in 1975 for $10,000, after 
receiving all the semiannual interest payments thereon.
    (b) On the exchange of the series E bond for the series H bond, B 
realizes a gain of $2,260 ($9,760 less $7,500), none of which is 
recognized at such time by reason of section 1037(a).
    (c) The basis of the series H bond in B's hands, determined under 
section 1031(d), is $7,740 (the $7,500 basis of the series E bond, plus 
$240 additional consideration paid for the series H bond).
    (d) On the redemption of the series H bond, B realizes a gain of 
$2,260 ($10,000 less $7,740), all of which is recognized by reason of 
section 1002. This entire gain is treated as ordinary income by treating 
the redemption of the series H bond as though it were a redemption of 
the series E bond and by applying section 1037(b)(1)(A).
    (e) Under section 1037(b)(1)(B) the issue price of the series H 
bonds is $10,000 ($9,760 stated redemption price of the series E bond at 
time of exchange, plus $240 additional consideration paid). Thus, with 
respect to the series H bond, there is no original issue discount to 
which section 1232(a)(2)(B) might apply.
    Example 6. (a) The facts are the same as in example (5), except that 
in 1970 B submits the $10,000 series H bond to the United States for 
partial redemption in the amount of $3,000 and for reissuance of the 
remainder in $1,000 series H savings bonds registered in his name. On 
this transaction B receives $3,000 cash and seven $1,000 series H bonds, 
bearing the original issue date of the $10,000 bond which is partially 
redeemed. The $1,000, series H bonds are redeemed at maturity in 1975 
for $7,000.
    (b) On the partial redemption of the $10,000 series H bond in 1970 B 
realizes a gain of $678 ($3,000 less $2,322 [$7,740 x $3,000/$10,000]), 
all of which is recognized at such time by reason of section 1002 and 
paragraph (c) of Sec.  1.454-1. This entire gain is treated as ordinary 
income, by treating the partial redemption of the series H bond as 
though it were a redemption of the relevant denominational portion of 
the series E bond and by applying section 1037(b)(1)(A).
    (c) On the redemption at maturity in 1975 of the seven $1,000 series 
H bonds B realizes a gain of $1,582 ($7,000 less $5,418 [$7,740 x 
$7,000/$10,000]), all of which is recognized at such time by reason of 
section 1002 and paragraph (c) of Sec.  1.454-1. This entire gain is 
treated as ordinary income, determined in

[[Page 161]]

the manner described in paragraph (b) of this example.
    Example 7. (a) The facts are the same as in example (5), except that 
in 1970 B requests the United States to reissue the $10,000 series H 
bond by issuing two $5,000 series H bonds bearing the original issue 
date of such $10,000 bond. One of such $5,000 bonds is registered in B's 
name, and the other is registered in the name of C, who is B's son. Each 
$5,000 series H bond is redeemed at maturity in 1975 for $5,000.
    (b) On the issuing in 1970 of the $5,000 series H bond to C, B 
realizes a gain of $1,130 ($5,000 less $3,870 [$7,740 x $5,000/
$10,000]), all of which is recognized at such time by reason of section 
1002 and paragraph (c) of Sec.  1.454-1. This entire gain is treated as 
ordinary income by treating the transaction as though it were a 
redemption of the relevant denominational portion of the series E bond 
and by applying section 1037(b)(1)(A).
    (c) On the redemption at maturity in 1975 of the $5,000 series H 
bond registered in his name B realizes a gain of $1,130 ($5,000 less 
$3,870 [$7,740 x $5,000/$10,000]), all of which is recognized at such 
time by reason of section 1002 and paragraph (c) of Sec.  1.454-1. This 
entire gain is treated as ordinary income, determined in the manner 
described in paragraph (b) of this example.
    (d) On the redemption at maturity in 1975 of the $5,000 series H 
bond registered in his name C does not realize any gain, since the 
amount realized on redemption does not exceed his basis in the property, 
determined as provided in section 1015.

    (5) Exchanges involving nonrecognition of gain or loss on 
transferable obligations issued at not less than par--(i) In general. If 
a transferable obligation of the United States which was originally 
issued at not less than par is surrendered to the United States for 
another transferable obligation in an exchange to which the provisions 
of section 1037(a) (or so much of section 1031 (b) or (c) as relates to 
section 1037(a)) apply, the issue price of the obligation received from 
the United States in the exchange shall be considered for purposes of 
applying section 1232 to gain realized on the disposition or redemption 
of the obligation so received, to be the same as the issue price of the 
obligation which is surrendered to the United States in the exchange, 
increased by the amount of other consideration, if any, paid to the 
United States as part of the exchange. This subparagraph shall apply 
irrespective of whether there is gain or loss unrecognized on the 
exchange and irrespective of the fair market value, at the time of the 
exchange, of either the obligation surrendered to, or the obligation 
received from, the United States in the exchange.
    (ii) Illustrations. The application of this subparagraph may be 
illustrated by the following examples, in which it is assumed that the 
taxpayer uses the cash receipts and disbursements method of accounting 
and that the old obligations exchanged are capital assets transferred in 
an exchange in respect of which regulations are promulgated pursuant to 
section 1037(a):

    Example 1. (a) A purchases in the market for $85 a marketable U.S. 
bond which was originally issued at its par value of $100. Three months 
later, A surrenders this bond to the United States in exchange solely 
for another $100 marketable U.S. bond which then has a fair market value 
of $88. He holds the new bond for 5 months and then sells it on the 
market for $92.
    (b) On the exchange of the old bond for the new bond A realizes a 
gain of $3 ($88 less $85), none of which is recognized by reason of 
section 1037(a).
    (c) The basis of the new bond in A's hands, determined under section 
1031(d), is $85 (the same as that of the old bond). The issue price of 
the new bond for purposes of section 1232(a)(2)(B) is considered under 
section 1037(b)(2) to be $100 (the same issue price as that of the old 
bond).
    (d) On the sale of the new bond A realizes a gain of $7 ($92 less 
$85), all of which is recognized by reason of section 1002. Of this gain 
of $7, the entire amount is treated as long-term capital gain, 
determined as follows:

(1) Ordinary income under first sentence of
 section 1232(a)(2)(B), applicable to old bond:
  Stated redemption price of old bond at maturity.       $100
  Less: Issue price of old bond...................        100
                                                   -----------
  Original issue discount on old bond........................          0
(2) Ordinary income under first sentence of section
 1232(a)(2)(B), applying section 1037(b)(2) to sale of new
 bond:
  Stated redemption price of new bond at maturity.        100
  Less: Issue price of new bond under section             100
   1037(b)(2).....................................
                                                   -----------
  Original issue discount on new bond........................          0
(3) Long-term capital gain ($7 less sum of subparagraphs (1)          $7
 and (2))....................................................
 

    Example 2. The facts are the same as in example (1), except that A 
retains the new bond and redeems it at maturity for $100. On the 
redemption of the new bond, A realizes a gain of $15 ($100 less $85), 
all of which is recognized under section 1002. This entire gain

[[Page 162]]

is treated as long-term capital gain, determined in the same manner as 
provided in paragraph (d) of example (1).
    Example 3. (a) For $1,000 B subscribes to a marketable U.S. bond 
which has a face value of $1,000. Thereafter, he surrenders this bond to 
the United States in exchange solely for a 10-year marketable $1,000 
bond which at the time of exchange has a fair market value of $930, at 
which price such bond is initially offered to the public. Five years 
after the exchange, B sells the new bond for $950.
    (b) On the exchange of the old bond for the new bond, B sustains a 
loss of $70 ($1,000 less $930), none of which is recognized pursuant to 
section 1037(a).
    (c) The basis of the new bond in A's hands, determined under section 
1031(d), is $1,000 (the same basis as that of the old bond).
    (d) On the sale of the new bond B sustains a loss of $50 ($1,000 
less $950), all of which is recognized by reason of section 1002.
    Example 4. (a) The facts are the same as in example (3), except that 
5 years after the exchange B sells the new bond for $1,020.
    (b) On the exchange of the old bond for the new bond B sustains a 
loss of $70 ($1,000 less $930), none of which is recognized pursuant to 
section 1037(a).
    (c) The basis of the new bond in B's hands, determined under section 
1031(d), is $1,000 (the same basis as that of the old bond). The issue 
price of the new bond for purposes of section 1232(a)(2)(B) is 
considered under section 1037(b)(2) to be $1,000 (the same issue price 
as that of the old bond).
    (d) On the sale of the new bond B realizes a gain of $20 ($1,020 
less $1,000), all of which is recognized by reason of section 1002. This 
entire gain is treated as long-term capital gain, determined in the same 
manner as provided in paragraph (d) of example (1).

    (6) Other rules for applying section 1232. To the extent not 
specifically affected by the provisions of section 1037(b) and 
subparagraphs (1) through (5) of this paragraph, any gain realized on 
the disposition or redemption of any obligation received from the United 
States in an exchange to which section 1037(a) (or so much of section 
1031 (b) or (c) as relates to section 1037(a)) applies shall be treated 
in the manner provided by section 1232 if the facts and circumstances 
relating to the acquisition and disposition or redemption of such 
obligation require the application of section 1232.
    (c) Holding period of obligation received in the exchange. The 
holding period of an obligation received from the United States in an 
exchange to which the provisions of section 1037(a) (or so much of 
section 1031 (b) or (c) as relates to section 1037(a)) apply shall 
include the period for which the obligation which was surrendered to the 
United States in the exchange was held by the taxpayer, but only if the 
obligation so surrendered was at the time of the exchange a capital 
asset in the hands of the taxpayer. See section 1223 and the regulations 
thereunder.
    (d) Basis. The basis of an obligation received from the United 
States in an exchange to which the provisions of section 1037(a) (or so 
much of section 1031 (b) or (c) as relates to section 1037(a)) apply 
shall be determined as provided in section 1031(d) and the regulations 
thereunder.
    (e) Effective date. Section 1.1037 and this section shall apply only 
for taxable years ending after September 22, 1959.

[T.D. 6935, 32 FR 15824, Nov. 17, 1967, as amended by T.D. 7154, 36 FR 
24998, Dec. 28, 1971]



Sec.  1.1038-1  Reacquisitions of real property in satisfaction 
of indebtedness.

    (a) Scope of section 1038--(1) General rule on gain or loss. If a 
sale of real property gives rise to indebtedness to the seller which is 
secured by the real property which is sold, and the seller of such 
property reacquires such property in a taxable year beginning after 
September 2, 1964, in partial or full satisfaction of such indebtedness, 
then, except as provided in paragraphs (b) and (f) of this section, no 
gain or loss shall result to the seller from such reacquisition. The 
treatment so provided is mandatory; however, see Sec.  1.1038-3 for an 
election to apply the provisions of this section to certain taxable 
years beginning after December 31, 1957. It is immaterial, for purposes 
of applying this subparagraph, whether the seller realized a gain or 
sustained a loss on the sale of the real property, or whether it can be 
ascertained at the time of the sale whether gain or loss occurs as a 
result of the sale. It is also immaterial what method of accounting the 
seller used in reporting gain or loss from the sale of the real property 
or whether at the time of reacquisition such property has depreciated or 
appreciated in value since the time of the original sale. Moreover, the 
character of the gain realized on the original sale

[[Page 163]]

of the property is immaterial for purposes of applying this 
subparagraph. The provisions of this section shall apply, except as 
provided in Sec.  1.1038-2, to the reacquisition of real property which 
was used by the seller as his principal residence and with respect to 
the sale of which an election under section 121 is in effect or with 
respect to the sale of which gain was not recognized under section 1034.
    (2) Sales giving rise to indebtedness--(i) Sale defined. For 
purposes of this section, it is not necessary for title to the property 
to have passed to the purchaser in order to have a sale. Ordinarily, a 
sale of property has occurred in a transaction in which title to the 
property has not passed to the purchaser, if the purchaser has a 
contractual right to retain possession of the property so long as he 
performs his obligations under the contract and to obtain title to the 
property upon the completion of the contract. However, a sale may have 
occurred even if the purchaser does not have the right to possession 
until he partially or fully satisfies the terms of the contract. For 
example, if S contracts to sell real property to P, and if S promises to 
convey title to P upon the completion of all of the payments due under 
the contract and to allow P to obtain possession of the property after 
10 percent of the purchase price has been paid, there has been a sale on 
the date of the contract for purposes of this section. This section 
shall not apply to a disposition of real property which constituted an 
exchange of property or was treated as a sale under section 121(d)(4) or 
section 1034(i); nor shall it apply to a sale of stock in a cooperative 
housing corporation described in section 121(d)(3) or section 1034(f).
    (ii) Secured indebtedness defined. An indebtedness to the seller is 
secured by the real property for purposes of this section whenever the 
seller has the right to take title or possession of the property or both 
if there is a default with respect to such indebtedness. A sale of real 
property may give rise to an indebtedness to the seller although the 
seller is limited in his recourse to the property for payment of the 
indebtedness in the case of a default.
    (3) Reacquisitions in partial or full satisfaction of indebtedness--
(i) Purpose of reacquisition. This section applies only where the seller 
reacquires the real property in partial or full satisfaction of the 
indebtedness to him that arose from the sale of the real property and 
was secured by the property. That is, the reacquisition must be in 
furtherance of the seller's security rights in the property with respect 
to indebtedness to him that arose at the time of the sale. Accordingly, 
if the seller in reacquiring the real property does not pay 
consideration in addition to discharging the purchaser's indebtedness to 
him that arose from the sale and was secured by such property, this 
section shall apply to the reacquisition even though the purchaser has 
not defaulted in his obligations under the contract or such a default is 
not imminent. If in addition to discharging the purchaser's indebtedness 
to him that arose from the sale the seller pays consideration in 
reacquiring the real property, this section shall generally apply to the 
reacquisition if the reacquisition and the payment of additional 
consideration is provided for in the original contract for the sale of 
the property. This section generally shall apply to a reacquisition of 
real property if the seller reacquires the property either when the 
purchaser has defaulted in his obligations under the contract or when 
such a default is imminent. This section generally shall not apply to a 
reacquisition of real property where the seller pays consideration in 
addition to discharging the purchaser's indebtedness to him that arose 
from the sale if the reacquisition and payment of additional 
consideration was not provided for in the original contract for the sale 
of the property and if the purchaser has not defaulted in his 
obligations under the contract or such a default is not imminent. Thus, 
for example, if the purchaser is in arrears on the payment of interest 
or principal or has in any other way defaulted on his contract for the 
purchase of the property, or if the facts of the case indicate that the 
purchaser is unable satisfactorily to perform his obligations under the 
contract, and the seller reacquires the

[[Page 164]]

property from the purchaser in a transaction in which the seller pays 
consideration in addition to discharging the purchaser's indebtedness to 
him that arose from the sale and was secured by the property, this 
section shall apply to the reacquisition. Additional consideration paid 
by the seller includes money and other property paid or transferred by 
the seller. Also, the reacquisition by the seller of real property 
subject to an indebtedness (or the assumption, upon the reacquisition, 
of indebtedness) which arose subsequent to the original sale shall be 
considered as a payment by the seller of additional consideration. 
However, the reacquisition by the seller of real property subject to an 
indebtedness (or the assumption, upon the reacquisition, of an 
indebtedness) which arose prior to or arose out of the original sale 
shall not be considered as a payment by the seller of additional 
consideration.
    (ii) Manner of reacquisition. For purposes of applying section 1038 
and this section there must be a reacquisition by the seller of the real 
property itself, but the manner in which the seller so reduces the 
property to ownership or possession, as the case may be, shall generally 
be immaterial. Thus, the seller may reduce the real property to 
ownership or possession or both, as the case may require, by agreement 
or by process of law. The reduction of the real property to ownership or 
possession by agreement includes, where valid under local law, such 
methods as voluntary conveyance from the purchaser and abandonment to 
the seller. The reduction of the real property to ownership or 
possession by process of law includes foreclosure proceedings in which a 
competitive bid is entered, such as foreclosure by judicial sale or by 
power of sale contained in the loan agreement without recourse to the 
courts, as well as those types of foreclosure proceedings in which a 
competitive bid is not entered, such as strict foreclosure and 
foreclosure by entry and possession, by writ of entry, or by publication 
or notice.
    (4) Persons from whom real property may be reacquired. The real 
property reacquired in satisfaction of the indebtedness need not be 
reacquired from the purchaser but may be reacquired from the purchaser's 
transferee or assignee, or from a trustee holding title to such property 
pending the purchaser's satisfaction of the terms of the contract, so 
long as the indebtedness that is partially or completely satisfied in 
the reacquisition of such property arose in the original sale of the 
property and was secured by the property so reacquired. In such a case, 
a reference in this section to the purchaser shall, where appropriate, 
include the purchaser's transferee or assignee. Thus, for example, this 
section will apply if the seller reacquires the property from a 
purchaser from the original purchaser and either the property is subject 
to, or the subsequent purchaser assumes, the liability to the seller on 
the indebtedness.
    (5) Reacquisitions not included. This section shall not apply to 
reacquisitions of real property by mutual savings banks, domestic 
building and loan associations, and cooperative banks, described in 
section 593(a).
    (b) Amount of gain resulting from a reacquisition--(1) Determination 
of amount--(i) In general. As a result of a reacquisition to which 
paragraph (a) of this section applies gain shall be derived by the 
seller to the extent that the amount of money and the fair market value 
of other property (other than obligations of the purchaser arising with 
respect to the sale) which are received by the seller, prior to such 
reacquisition, with respect to the sale of the property exceed the 
amount of the gain derived by the seller on the sale of such property 
which is returned as income for periods prior to the reacquisition. 
However, the amount of gain so determined shall in no case exceed the 
amount determined under paragraph (c) of this section with respect to 
such reacquisition.
    (ii) Amount of gain returned as income for prior periods. For 
purposes of this subparagraph and paragraph (c)(1) of this section, the 
amount of gain on the sale of the property which is returned as income 
for periods prior to the reacquisition of the real property does not 
include any amount of income determined under paragraph (f)(2) of this 
section which is considered to be received at the time of the 
reacquisition of the property. However, the amount

[[Page 165]]

of gain on the sale of the property which is returned as income for such 
periods does include gain on the sale resulting from payments received 
in the taxable year in which the date of reacquisition occurs if such 
payments are received prior to such reacquisition. The application of 
this subdivision may be illustrated by the following example:

    Example: In 1965 S, who uses the calendar year as the taxable year, 
sells to P for $10,000 real property which has an adjusted basis of 
$3,000. S properly elects under section 453 to report the income from 
the sale on the installment method. In 1965 and 1966, S receives a total 
of $4,000 on the contract. On May 15, 1967, S receives $1,000 on the 
contract. Because of P's default, S reacquires the property on August 
31, 1967. The gain on the sale which is returned as income for periods 
prior to the reacquisition is $3,500 ($5,000 x $7,000/$10,000).

    (2) Amount of money and other property received with respect to the 
sale--(i) In general. Amounts of money and other property received by 
the seller with respect to the sale of the property include payments 
made by the purchaser for the seller's benefit, as well as payments made 
and other property transferred directly to the seller. If the purchaser 
of the real property makes payments on a mortgage or other indebtedness 
to which the property is subject at the time of the sale of such 
property to him, or on which the seller was personally liable at the 
time of such sale, such payments are considered amounts received by the 
seller with respect to the sale. However, if after the sale the 
purchaser borrows money and uses the property as security for the loan, 
payments by the purchaser in satisfaction of the indebtedness are not 
considered as amounts received by the seller with respect to the sale, 
although the seller does in fact receive some indirect benefit when the 
purchaser makes such payments.
    (ii) Payments by purchaser at time of reacquisition. All payments 
made by the purchaser at the time of the reacquisition of the real 
property that are with respect to the original sale of the property 
shall be treated, for purposes of subparagraph (1) of this paragraph, by 
the seller as having been received prior to the reacquisition with 
respect to such sale. For example, if the purchaser, at the time of the 
reacquisition by the seller, pays money or other property to the seller 
in partial or complete satisfaction of the purchaser's indebtedness on 
the original sale, the seller shall treat such amounts as having been 
received prior to the reacquisition with respect to the sale.
    (iii) Interest received. For purposes of this subparagraph and 
paragraph (c)(1) of this section any amounts received by the seller as 
interest, stated or unstated, are excluded from the computation of gain 
on the sale of the property and are not considered amounts of money or 
other property received with respect to the sale.
    (iv) Amounts received on sale of purchaser's indebtedness. Money or 
other property received by the seller on the sale of the purchaser's 
indebtedness that arose at the time of the sale of the real property are 
amounts received by the seller with respect to the sale of such real 
property, except that the amounts so received from the sale of such 
indebtedness shall be reduced by the amount of money and the fair market 
value of other property paid or transferred by the seller, before the 
reacquisition of the real property, to reacquire such indebtedness. For 
example, if S sells real property to P for $25,000, and under the 
contract receives $10,000 down and a note from P for $15,000, S would 
receive $22,000 with respect to the sale if he were to discount the note 
for $12,000. If before the reacquisition of the real property S were to 
reacquire the discounted note for $8,000, he would receive $14,000 with 
respect to the sale.
    (3) Obligations of the purchaser arising with respect to the sale. 
The term obligations of the purchaser arising with respect to the sale 
of the real property includes, for purposes of subparagraph (1) of this 
paragraph, only that indebtedness on which the purchaser is liable to 
the seller and which arises out of the sale of such property. Thus, the 
term does not include any indebtedness in respect of the property that 
the seller owes to a third person which the purchaser assumes, or to 
which the property is subject, at the time of the sale of the property 
to the purchaser. Nor does the term include any indebtedness on

[[Page 166]]

which the purchaser is liable to the seller if such indebtedness arises 
subsequent to the sale of such property.
    (c) Limitation upon amount of gain--(1) In general. Except as 
provided by subparagraph (2) of this paragraph, the amount of gain on a 
reacquisition of real property, as determined under paragraph (b) of 
this section, shall in no case exceed--
    (i) The amount by which the price at which the real property was 
sold exceeded its adjusted basis at the time of the sale, as determined 
under Sec.  1.1011-1, reduced by
    (ii) The amount of gain on the sale of such real property which is 
returned as income for periods prior to the reacquisition, and by
    (iii) The amount of money and the fair market value of other 
property (other than obligations of the purchaser to the seller which 
are secured by the real property) paid or transferred by the seller in 
connection with the reacquisition of such real property.
    (2) Cases where limitation does not apply. The limitation provided 
by subparagraph (1) of this paragraph shall not apply in a case where 
the selling price of property is indefinite in amount and cannot be 
ascertained at the time of the reacquisition of such property, as, for 
example, where the selling price is stated as a percentage of the 
profits to be realized from the development of the property which is 
sold. Moreover, the limitation so provided shall not apply to a 
reacquisition of real property occurring in a taxable year beginning 
before September 3, 1964, to which the provisions of this section are 
applied pursuant to an election under Sec.  1.1038-3.
    (3) Determination of sales price. The price at which the real 
property was sold shall be, for purposes of subparagraph (1) of this 
paragraph, the gross sales price reduced by the selling commissions, 
legal fees, and other expenses incident to the sale of such property 
which are properly taken into account in determining gain or loss on the 
sale. For example, the amount of selling commissions paid by a nondealer 
will be deducted from the gross sales price in determining the price at 
which the real property was sold; on the other hand, selling commissions 
paid by a real estate dealer will be deducted as a business expense. 
Examples of other expenses incident to the sale of the property are 
expenses for appraisal fees, advertising expense, cost of preparing 
maps, recording fees, and documentary stamp taxes. Payments on 
indebtedness to the seller which are for interest, stated or unstated, 
are not included in determining the price at which the property was 
sold. See paragraph (b)(2)(iii) of this section.
    (4) Determination of amounts paid or transferred in connection with 
a reacquisition--(i) In general. Amounts of money or property paid or 
transferred by the seller of the real property in connection with the 
reacquisition of such property include payments of money, or transfers 
of property, to persons from whom the real property is reacquired as 
well as to other persons. Payments or transfers in connection with the 
reacquisition of the property do not include money or property paid or 
transferred by the seller to reacquire obligations of the purchaser to 
the seller which were received by the seller with respect to the sale of 
the property or which arose subsequent to the sale. Amounts of money or 
property paid or transferred by the seller in connection with the 
reacquisition of the property include payments or transfers for such 
items as court costs and fees for services of an attorney, master, 
trustee, or auctioneer, or for publication, acquiring title, clearing 
liens, or filing and recording.
    (ii) Assumption of indebtedness. The assumption by the seller, upon 
reacquisition of the real property, of any indebtedness to another 
person which at such time is secured by such property will be considered 
a payment of money by the seller in connection with the reacquisition. 
Also, if at the time of reacquisition such property is subject to an 
indebtedness which is not an indebtedness of the purchaser to the 
seller, the seller shall be considered to have paid money, in an amount 
equal to such indebtedness, in connection with the reacquisition of the 
property. Thus, for example, if at the time of the sale the purchaser 
executes in connection with the sale a first mortgage to a bank and a 
second mortgage to the seller and at

[[Page 167]]

the time of reacquisition the seller reacquires the property subject to 
the first mortgage which he does not assume, the seller will be 
considered to have paid money, in an amount equal to the unpaid amount 
of the first mortgage, in connection with the reacquisition.
    (d) Character of gain resulting from a reacquisition. Paragraphs (b) 
and (c) of this section set forth the extent to which gain shall be 
derived from a reacquisition to which paragraph (a) of this section 
applies, but the rule provided by section 1038 and this section do not 
affect the character of the gain so derived. The character of the gain 
resulting from such a reacquisition is determined on the basis of 
whether the gain on the original sale was returned on the installment 
method or, if not, on the basis of whether title to the real property 
was transferred to the purchaser; and, if title was transferred to the 
purchaser in a deferred-payment sale, whether the reconveyance of the 
property to the seller was voluntary. For example, if the gain on the 
original sale of the reacquired property was returned on the installment 
method, the character of the gain on reacquisition by the seller shall 
be determined in accordance with the rules provided in paragraph (a) of 
Sec.  1.453-9. If the original sale was not on the installment method 
but was a deferred-payment sale, as described in Sec.  1.453-6(a), where 
title to the real property was transferred to the purchaser and the 
seller accepts a voluntary reconveyance of the property, the gain on the 
reacquisition shall be ordinary income; however, if the obligations 
satisfied are securities (as defined in section 165(g)(2)(C)), any gain 
resulting from the reacquisition is capital gain subject to the 
provisions of subchapter P of chapter 1 of the Code.
    (e) Recognition of gain. The entire amount of the gain determined 
under paragraphs (b) and (c) of this section with respect to a 
reacquisition to which paragraph (a) of this section applies shall be 
recognized notwithstanding any other provisions of subtitle A (relating 
to income taxes) of the Code.
    (f) Special rules applicable to worthless indebtedness--(1) 
Worthlessness resulting from reacquisition. No debt of the purchaser to 
the seller which was secured by the reacquired real property shall be 
considered as becoming worthless or partially worthless as a result of a 
reacquisition of such real property to which paragraph (a) of this 
section applies. Accordingly, no deduction for a bad debt and no charge 
against a reserve for bad debts shall be allowed, as a result of the 
reacquisition, in order to reflect the noncollectibility of any 
indebtedness of the purchaser to the seller which at the time of 
reacquisition was secured by such real property.
    (2) Indebtedness treated as worthless prior to reacquisition--(i) 
Prior taxable years. If for any taxable year ending before the taxable 
year in which occurs a reacquisition of real property to which paragraph 
(a) of this section applies the seller of such property has treated any 
indebtedness of the purchaser which is secured by such property as 
having become worthless or partially worthless by taking a bad debt 
deduction under section 166(a), he shall be considered as receiving, at 
the time of such reacquisition, income in an amount equal to the amount 
of such indebtedness previously treated by him as having become 
worthless. The amount so treated as income received shall be treated as 
a recovery of a bad debt previously deducted as worthless or partially 
worthless. Accordingly, the amount of such income shall be excluded from 
gross income, as provided in Sec.  1.111-1, to the extent of the 
recovery exclusion with respect to such item. For purposes of Sec.  
1.111-1, if the indebtedness was treated as partially worthless in a 
prior taxable year, the amount treated under this subparagraph as a 
recovery shall be considered to be with respect to the part of the 
indebtedness that was previously deducted as worthless. The seller shall 
not be considered to have treated an indebtedness as worthless in any 
taxable year for which he took the standard deduction under section 141 
or paid the tax imposed by section 3 if a deduction in respect of such 
indebtedness was not allowed in determining adjusted gross income for 
such year under section 62.
    (ii) Current taxable year. No deduction shall be allowed under 
section 166 (a), for the taxable year in which occurs a reacquisition of 
real property to which

[[Page 168]]

paragraph (a) of this section applies, in respect of any indebtedness of 
the purchaser secured by such property which has been treated by the 
seller as having become worthless or partially worthless in such taxable 
year but prior to the date of such reacquisition.
    (3) Basis adjustment. The basis of any indebtedness described in 
subparagraph (2)(i) of this paragraph shall be increased (as of the date 
of the reacquisition) by an amount equal to the amount which, under such 
subparagraph of this paragraph, is treated as income received by the 
seller with respect to such indebtedness, but only to the extent the 
amount so treated as received is not excluded from gross income by 
reason of the application of Sec.  1.111-1.
    (g) Rules for determining gain or loss on disposition of reacquired 
property--(1) Basis of reacquired real property. The basis of any real 
property acquired in a reacquisition to which paragraph (a) of this 
section applies shall be the sum of the following amounts, determined as 
of the date of such reacquisition:
    (i) The amount of the adjusted basis, determined under sections 453 
and 1011, and the regulations thereunder, of all indebtedness of the 
purchaser to the seller which at the time of reacquisition was secured 
by such property, including any increase by reason of paragraph (f)(3) 
of this section,
    (ii) The amount of gain determined under paragraphs (b) and (c) of 
this section with respect to such reacquisition, and
    (iii) The amount of money and the fair market value of other 
property (other than obligations of the purchaser to the seller which 
are secured by the real property) paid or transferred by the seller in 
connection with the reacquisition of such real property, determined as 
provided in paragraph (c) of this section even though such paragraph 
does not apply to the reacquisition.
    (2) Basis of undischarged indebtedness. The basis of any 
indebtedness of the purchaser to the seller which was secured by the 
reacquired real property described in subparagraph (1) of this 
paragraph, to the extent that such indebtedness is not discharged upon 
the reacquisition of such property, shall be zero. Therefore, to the 
extent not discharged upon the reacquisition of the real property, 
indebtedness on the original obligation of the purchaser, a substituted 
obligation of the purchaser, a deficiency judgment entered in a court of 
law into which the purchaser's obligation has merged, or any other 
obligation of the purchaser to the seller, shall be zero if such 
indebtedness constitutes an indebtedness to the seller which was secured 
by such property.
    (3) Holding period of reacquired property. Since the reacquisition 
described in subparagraph (1) of this paragraph is in a sense considered 
a nullification of the original sale of the real property, for purposes 
of determining gain or loss on a disposition of such property after its 
reacquisition the period for which the seller has held the real property 
at the time of such disposition shall include the period for which such 
property is held by him prior to the original sale. However, the holding 
period shall not include the period of time commencing with the date 
following the date on which the property is originally sold to the 
purchaser and ending with the date on which the property is reacquired 
by the seller. The period for which the property was held by the seller 
prior to the original sale shall be determined as provided in Sec.  
1.1223-1. For example, if under paragraph (a) of Sec.  1.1223-1 real 
property, which was acquired as the result of an involuntary conversion, 
has been held for five months on January 1, 1965, the date of its sale, 
and such property is reacquired on July 2, 1965, and resold on July 3, 
1965, the seller will be considered to have held such property for five 
months and one day for purposes of this subparagraph.
    (h) Illustrations. The application of this section may be 
illustrated by the following examples in which it is assumed that the 
reacquisition is in satisfaction of secured indebtedness arising out of 
the sale of the real property:

    Example 1. (a) S purchases real property for $20 and sells it to P 
for $100, the property not being mortgaged at the time of sale. Under 
the contract P pays $10 down and executes a note for $90, with stated 
interest at 6 percent, to be paid in nine annual installments. S 
properly elects to report the gain on the

[[Page 169]]

installment method. After the second $10 annual payment P defaults and S 
accepts a voluntary reconveyance of the property in complete 
satisfaction of the indebtedness. S pays $5 in connection with the 
reacquisition of the property. The fair market value of the property at 
the time of the reacquisition is $110.
    (b) The gain derived by S on the reacquisition of the property is 
$6, determined as follows:

Gain before application of limitation:
  Money with respect to the sale received by S prior to the          $30
   reacquisition.............................................
  Less: Gain returned by S as income for periods prior to the         24
   reacquisition ($30 x [ ($100-$20)/$100])..................
                                                   ------------
  Gain before application of limitation......................          6
                                                   ============
Limitation on amount of gain:
  Sales price of real property...............................        100
  Less:
    Adjusted basis of the property at the time of         $20
     sale.........................................
    Gain returned by S as income for periods prior         24
     to the reacquisition.........................
    Amount of money paid by S in connection with            5         49
     the reacquisition............................
                                                   ---------------------
  Limitation on amount of gain...............................         51
                                                   ============
Gain resulting from the reacquisition of the property........          6
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $25, determined as follows:

Adjusted basis of P's indebtedness to S ($70-[$70 x $80/             $14
 $100])......................................................
Gain resulting from the reacquisition of the property........          6
Amount of money paid by S in connection with the                       5
 reacquisition...............................................
                                                              ----------
    Basis of reacquired property.............................         25
 

    Example 2. (a) The facts are the same as in example (1) except that 
S purchased the property for $80.
    (b) The gain derived by S on the reacquisition of the property is 
$9, determined as follows:

Gain before application of limitation:
  Money with respect to the sale received by S prior to the          $30
   reacquisition.............................................
  Less: Gain returned by S as income for periods prior to the         $6
   reacquisition ($30 x [($100-$80)/$100])...................
                                                   ------------
  Gain before application of limitation......................         24
                                                   ============
Limitation on amount of gain:
  Sales price of real property...............................        100
  Less:
    Adjusted basis of the property at the time of         $80
     sale.........................................
    Gain returned by S as income for periods prior          6
     to the reacquisition.........................
    Amount of money paid by S in connection with            5         91
     the reacquisition............................
                                                   ---------------------
  Limitation on amount of gain...............................          9
                                                   ============
  Gain resulting from the reacquisition of the property......          9
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $70, determined as follows:

Adjusted basis of P's indebtedness to S ($70-[$70 x $20/             $56
 $100])......................................................
Gain resulting from the reacquisition of the property........          9
Amount of money paid by S in connection with the                       5
 reacquisition...............................................
                                                              ----------
    Basis of reacquired property.............................         70
                                                              ==========
 

    Example 3. (a) S purchases real property for $70 and sells it to P 
for $100, the property not being mortgaged at the time of sale. Under 
the contract P pays $10 down and executes a note for $90, with stated 
interest at 6 percent, to be paid in nine annual installments. S 
properly elects to report the gain on the installment method. After the 
first $10 annual payment P defaults and S accepts a voluntary 
reconveyance of the property in complete satisfaction of the 
indebtedness. S pays $5 in connection with the reacquisition of the 
property. The fair market value of the property at the time of the 
reacquisition is $50.
    (b) The gain derived by S on the reacquisition of the property is 
$14, determined as follows:

Gain before application of limitation:
  Money with respect to the sale received by S prior to the          $20
   reacquisition.............................................
  Less: Gain returned by S as income for periods prior to the          6
   reacquisition ($20 x [($100-$70)/$100])...................
                                                   ------------
  Gain before application of limitation......................         14
                                                   ============
Limitation on amount of gain:
  Sales price of real property...............................        100
  Less:
    Adjusted basis of the property at time of sale        $70
    Gain returned by S as income for periods prior          6
     to the reacquisition.........................
    Amount paid by S in connection with the                 5         81
     reacquisition................................
                                                   ---------------------
  Limitation on amount of gain...............................         19
                                                   ============
  Gain resulting from the reacquisition of the property......         14
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $75, determined as follows:

Adjusted basis of P's indebtedness to S ($80-[$80 x $30/             $56
 $100])......................................................
Gain resulting from the reacquisition of the property........         14

[[Page 170]]

 
Amount of money paid by S in connection with the                       5
 reacquisition...............................................
                                                              ----------
    Basis of reacquired property.............................         75
 

    Example 4. (a) S purchases real property for $20 and sells it to P 
for $100, the property not being mortgaged at the time of sale. Under 
the contract P pays $10 down and executes a note for $90, with stated 
interest at 6 percent, to be paid in nine annual installments. S 
properly elects to report gain on the installment method. After the 
second $10 annual payment P defaults and S accepts from P in complete 
satisfaction of the indebtedness a voluntary reconveyance of the 
property plus cash in the amount of $20. S does not pay any amount in 
connection with the reacquisition of the property. The fair market value 
of the property at the time of the reacquisition is $30.
    (b) The gain derived by S on the reacquisition of the property is 
$10, determined as follows:

Gain before application of the limitation:
  Money with respect to the sale received by S prior to the          $50
   reacquisition ($30 + $20).................................
  Less: Gain returned by S as income for periods prior to the         40
   reacquisition ($50 x [($100-$20)/$100])...................
                                                   ------------
  Gain before application of limitation......................         10
                                                   ============
Limitation on amount of gain:
  Sales price of real property...............................        100
  Less:
    Adjusted basis of the property at time of sale        $20
    Gain returned by S as income for periods prior         40         60
     to the reacquisition.........................
                                                   ---------------------
  Limitation on amount of gain...............................         40
                                                   ============
Gain resulting from the reacquisition of the property........         10
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $20, determined as follows:

Adjusted basis of P's indebtedness to S ($50-[$50 x $80/             $10
 $100])......................................................
Gain resulting from the reacquisition of the property........         10
                                                              ----------
    Basis of reacquired property.............................         20
 

    Example 5. (a) S purchases real property for $80 and sells it to P 
for $100, the property not being mortgaged at the time of sale. Under 
the contract P pays $10 down and executes a note for $90, with stated 
interest at 6 percent, to be paid in nine annual installments. At the 
time of sale P's note has a fair market value of $90. S does not elect 
to report the gain on the installment method but treats the transaction 
as a deferred-payment sale. After the third $10 annual payment P 
defaults and S forecloses. Under the foreclosure sale S bids in the 
property at $70, cancels P's obligation of $60, and pays $10 to P. There 
are no other amounts paid by S in connection with the reacquisition of 
the property. The fair market value of the property at the time of the 
reacquisition is $70.
    (b) The gain derived by S on the reacquisition of the property is 
$0, determined as follows:

Gain before application of the limitation:
  Money with respect to the sale received by S prior to the          $40
   reacquisition.............................................
  Less: Gain returned by S as income for periods prior to the         20
   reacquisition ([$10 + $90]-$80)...........................
                                                   ------------
  Gain before application of limitation......................         20
                                                   ============
Limitation on amount of gain:
  Sales price of real property....................  .........        100
  Less:
    Adjusted basis of the property at the time of         $80
     sale.........................................
    Gain returned by S as income for periods prior         20
     to the reacquisition.........................
    Amount of money paid by S in connection with           10        110
     the reacquisition............................
                                                   ---------------------
  Limitation on amount of gain (not to be less than zero)....          0
                                                   ============
Gain resulting from the reacquisition of the property........          0
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $70, determined as follows:

Adjusted basis of P's indebtedness to S (face value at time          $60
 of reacquisition)...........................................
Gain resulting from the reacquisition of the property........          0
Amount of money paid by S in connection with the                      10
 reacquisition...............................................
                                                              ----------
    Basis of reacquired property.............................         70
 


[T.D. 6916, 32 FR 5925, Apr. 13, 1967; 32 FR 6971, May 6, 1967; T.D. 
9849, 84 FR 9237, Mar. 14, 2019]



Sec.  1.1038-2  Reacquisition and resale of property used 
as a principal residence.

    (a) Application of special rules--(1) In general. If paragraph (a) 
of Sec.  1.1038-1 applies to the reacquisition of real property which 
was used by the seller as his principal residence and with respect to 
the sale of which an election under section 121 is in effect or with 
respect to the sale of which gain was not recognized under section 1034, 
the provisions of Sec.  1.1038-1 (other than paragraph (a) thereof) 
shall not, and this section shall, apply to the reacquisition of such 
property if the property is resold by the seller within one year after 
the date of the reacquisition. For purposes

[[Page 171]]

of this section an election under section 121 shall be considered to be 
in effect with respect to the sale of the property if, at the close of 
the last day for making such an election under section 121(c) with 
respect to such sale, an election under section 121 has been made and 
not revoked. Thus, a taxpayer who properly elects, subsequent to the 
reacquisition, to have section 121 apply to a sale of his residence may 
be eligible for the treatment provided in this section. The treatment 
provided by this section is mandatory; however, see Sec.  1.1038-3 for 
an election to apply the provisions of this section to certain taxable 
years beginning after December 31, 1957.
    (2) Sale and resale treated as one transaction. In the case of a 
reacquisition to which this section applies, the resale of the 
reacquired property shall be treated, for purposes of applying sections 
121 and 1034, as part of the transaction constituting the original sale 
of such property. In effect, the reacquisition is generally disregarded 
pursuant to this section and, for purposes of applying sections 121 and 
1034, the resale of the property is considered to constitute a sale of 
such property occurring on the date of the original sale of such 
property.
    (b) Transactions not included. (1) If with respect to the original 
sale of the property there was no nonrecognition of gain under section 
1034 and an election under section 121 is not in effect, the provisions 
of Sec.  1.1038-1, and not this section, shall apply to the 
reacquisition. Thus, for example, if in the case of a taxpayer not 
entitled to the benefit of section 121 there is no gain on the original 
sale of the property, the provisions of Sec.  1.1038-1, and not this 
section, shall apply even though a redetermination of gain under this 
section would result in the nonrecognition of gain on the sale under 
section 1034. Also, if in the case of such a taxpayer there was gain on 
the original sale of the property but after the application of section 
1034 all of such gain was recognized, the provisions of Sec.  1.1038-1, 
and not this section, shall apply to the reacquisition.
    (2) If the original sale of the property was not eligible for the 
treatment provided by section 121 and section 1034, the provisions of 
Sec.  1.1038-1, and not this section, shall apply to the reacquisition 
of the property even though the resale of such property is eligible for 
the treatment provided by either or both of sections 121 and 1034.
    (c) Redetermination of gain required--(1) Sale of old residence. The 
amount of gain excluded under section 121 on the sale of the property 
and the amount of gain recognized under section 1034 on the sale of the 
property shall be redetermined under this section by recomputing the 
adjusted sales price and the adjusted basis of the property, and any 
adjustments resulting from the redetermination of the gain on the sale 
of such property shall be reflected in the income of the seller for his 
taxable year in which the resale of the property occurs.
    (2) Sale of new residence. If gain was not recognized under section 
1034 on the original sale of the property, the adjusted basis of the new 
residence shall be redetermined under this section. If the new residence 
has been sold, the amount of gain returned on such sale of the new 
residence which is affected by the redetermination of the recognized 
gain on the sale of the old residence shall be redetermined under this 
section, and any adjustments resulting from the redetermination of the 
gain on the sale of the new residence shall be reflected in income of 
the seller for his taxable year in which the resale of the old residence 
occurs.
    (d) Redetermination of adjusted sales price. For purposes of 
applying sections 121 and 1034 pursuant to this section, the adjusted 
sales price of the reacquired real property shall be redetermined by 
taking into account both the sale and the resale of the property and 
shall be--
    (1) The amount realized, which for purposes of section 1001 shall 
be--
    (i) The amount realized on the resale of the property, as determined 
under paragraph (b)(4) of Sec.  1.1034-1, plus
    (ii) The amount realized on the original sale of the property, 
determined as provided in paragraph (b)(4) of Sec.  1.1034-1, less that 
portion of any obligations of the purchaser arising with respect to such 
sale which at the time of reacquisition is secured by such property and 
is unpaid, less

[[Page 172]]

    (iii) The amount of money and the fair market value of other 
property (other than obligations of the purchaser to the seller secured 
by the real property) paid or transferred by the seller in connection 
with the reacquisition of such real property,

reduced by

    (2) The total of the fixing-up expenses (as defined in par. (b)(6) 
of Sec.  1.1034-1) incurred for work performed on such real property to 
assist in both its original sale and its resale.

For purposes of applying paragraph (b)(6) of Sec.  1.1034-1, there shall 
be two 90-day periods, the first ending on the day on which the contract 
to sell is entered into in connection with the original sale of the 
property, and the second ending on the day on which the contract to sell 
is entered into in connection with the resale of the property. There 
shall also be two 30-day periods for such purposes, the first ending on 
the 30th day after the date of the original sale, and the second ending 
on the 30th day after the date of the resale. For determination of the 
obligations of the purchaser arising with respect to the original sale 
of the property, see paragraph (b)(3) of Sec.  1.1038-1. For 
determination of amounts paid or transferred by the seller in connection 
with the reacquisition of the property, see paragraph (c)(4) of Sec.  
1.1038-1.
    (e) Determination of adjusted basis at time of resale. For purposes 
of applying sections 121 and 1034 pursuant to this section, the adjusted 
basis of the reacquired real property at the time of its resale shall 
be--
    (1) The sum of--
    (i) The adjusted basis of such property at the time of the original 
sale, with proper adjustment under section 1016(a) in respect of such 
property for the period occurring after the reacquisition of such 
property, and
    (ii) Any indebtedness of the purchaser to the seller which arose 
subsequent to the original sale of such property and which at the time 
of reacquisition was secured by such property,

reduced by

    (2) Any indebtedness of the purchaser to the seller which at the 
time of reacquisition was secured by the reacquired real property and 
which, for any taxable year ending before the taxable year in which 
occurs the reacquisition to the seller which was secured by the seller 
as having become worthless or partially worthless by taking a bad debt 
deduction under section 166(a).

The reduction under the preceding sentence by reason of having treated 
indebtedness as worthless or partially worthless shall not exceed the 
amount by which there would be an increase in the basis of such 
indebtedness under paragraph (f)(3) of Sec.  1.1038-1 if section 1038(d) 
had been applicable to the reacquisition of such property.
    (f) Treatment of indebtedness secured by the property--(1) Year of 
reacquisition. No debt of the purchaser to the seller which was secured 
by the reacquired real property shall be considered as becoming 
worthless or partially worthless as a result of a reacquisition of such 
real property to which this section applies. Accordingly, no deduction 
for a bad debt shall be allowed, as a result of the reacquisition, in 
order to reflect the noncollectibility of any indebtedness of the 
purchaser to the seller which at the time of reacquisition was secured 
by such real property. In addition, no deduction shall be allowed, for 
the taxable year in which occurs a reacquisition of real property to 
which this section applies, in respect of any indebtedness of the 
purchaser secured by such property which has been treated by the seller 
as having become worthless or partially worthless in such taxable year 
but prior to the date of such reacquisition.
    (2) Prior taxable years. For reduction of the basis of the real 
property for indebtedness treated as worthless or partially worthless 
for taxable years ending before the taxable year in which occurs the 
reacquisition, see paragraph (e) of this section.
    (3) Basis of indebtedness. The basis of any indebtedness of the 
purchaser to the seller which was secured by the reacquired real 
property, to the extent that such indebtedness is not discharged upon 
the reacquisition of such property, shall be zero.
    (g) Date of sale. Since the resale of the property, by being treated 
as part of the transaction constituting the original sale of the 
property, is treated as having occurred on the date of the

[[Page 173]]

original sale, in determining whether any of the time requirements of 
section 121 or section 1034 are satisfied for purposes of this section 
the date of the original sale is used, except to the extent provided in 
paragraph (d)(2) of this section.
    (h) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. (a) On June 30, 1964, S, a single individual over 65 
years of age, sells his principal residence to P for $25,000, the 
property not being mortgaged at the time of sale. S properly elects to 
apply the provisions of section 121 to the sale. Under the contract, P 
pays $5,000 down and executes a note for $20,000 with stated interest at 
6 percent, the principal being payable in installments of $5,000 each on 
January 1 of each year and the note being secured by the real property 
which is sold. At the time of sale P's note has a fair market value of 
$20,000. S does not elect to report the gain on the installment method 
but treats the transaction as a deferred-payment sale, title to the 
property being transferred to P at the time of sale. S uses the calendar 
year as the taxable year and the cash receipts and disbursements method 
of accounting. After making two annual payments of $5,000 each on the 
note, P defaults on the contract, and on March 1, 1967, S reacquires the 
real property in full satisfaction of P's indebtedness, title to the 
property being voluntarily reconveyed to S. On November 1, 1967, S sells 
the property to T for $35,000. The assumption is made that no fixing-up 
expenses are incurred for work performed on the principal residence in 
order to assist in the sale of the property in 1964 or in the resale of 
the property in 1967. At the time of sale in 1964 the property has an 
adjusted basis of $15,000. S does not treat any indebtedness with 
respect to the sale in 1964 as being worthless or partially worthless or 
make any capital expenditures with respect to the property after such 
sale. In his return for 1964, S includes in income $2,000 capital gain 
from the sale of his residence.
    (b) The results obtained before and after the reacquisition of the 
property are as follows:

------------------------------------------------------------------------
                                                Before         After
                                            reacquisition  reacquisition
------------------------------------------------------------------------
Adjusted sales price:
  $5,000 + $20,000........................      $25,000    .............
  $15,000 + $35,000.......................  .............      $50,000
Less: Adjusted basis of property at time         15,000         15,000
 of sale..................................
                                           -----------------------------
Gain on sale..............................       10,000         35,000
                                           =============================
Gain excluded from income under section
 121:.....................................
  $10,000 x $20,000/$25,000...............        8,000    .............
  $35,000 x $20,000/$50,000...............  .............       14,000
Gain included in income after applying
 section 121:
  $10,000-$8,000..........................        2,000    .............
  $35,000-$14,000.........................  .............       21,000
------------------------------------------------------------------------

    (c) S is required to show the additional inclusion of $19,000 
capital gain ($21,000 -$2,000) in income on his return for 1967.
    Example 2. (a) The facts are the same as in example (1) except that 
on April 1, 1965, S purchases a new residence at a cost of $30,000 and 
qualifies for the nonrecognition of gain under section 1034 in respect 
of the sale of his principal residence on June 30, 1964. In his return 
for 1964, S does not include any capital gain in income as a result of 
the sale of the old residence.
    (b) The results obtained before and after the reacquisition of the 
property are as follows:

------------------------------------------------------------------------
                                                Before         After
                                            reacquisition  reacquisition
------------------------------------------------------------------------
Application of section 121 (see example
 (1)):
  Adjusted sales price....................      $25,000        $50,000
  Less: Adjusted basis of property at time       15,000         15,000
   of sale................................
                                           -----------------------------
  Gain on sale............................       10,000         35,000
                                           =============================
  Gain excluded from income under section         8,000         14,000
   121....................................
  Gain not excluded from income under             2,000         21,000
   section 121............................
Application of section 1034: Adjusted
 sales price:
  $25,000-$8,000..........................       17,000    .............
  $50,000-$14,000.........................  .............       36,000
Less: Cost of new residence...............       30,000         30,000
                                           -----------------------------
Gain recognized under section 1034 on sale            0          6,000
 of old residence.........................
                                           =============================
Gain not recognized under section 1034 on
 sale of old residence:
  ($10,000-[$8,000 + $0]).................        2,000    .............
  ($35,000-[$14,000 + $6,000])............  .............       15,000
Adjusted basis of new residence on April
 1, 1965:
  $30,000-$2,000..........................       28,000    .............
  $30,000-$15,000.........................  .............       15,000
------------------------------------------------------------------------

    (c) The $6,000 of capital gain on the sale of the old residence is 
required to be included in income on the return for 1967. The adjusted 
basis on April 1, 1965, for determining gain on a sale or exchange of 
the new residence at any time on or after that date is $15,000, after 
taking into account the reacquisition and resale of the old residence.
    Example 3. The facts are the same as in example (2) except that S 
sells the new residence on June 20, 1965, for $40,000 and includes 
$12,000 of capital gain ($40,000-

[[Page 174]]

$28,000) on its sale in his income on the return for 1965. S is required 
to include the additional capital gain of $13,000 ([$40,000- $15,000]-
$12,000) on the sale of the new residence in his income on the return 
for 1967. For this purpose, the assumption is also made that there are 
no additional adjustments to the basis of the new residence after April 
1, 1965.

[T.D. 6916, 32 FR 5929, Apr. 13, 1967; 32 FR 6971, May 6, 1967]



Sec.  1.1038-3  Election to have section 1038 apply for taxable years 
beginning after December 31, 1957.

    (a) In general. If an election is made in the manner provided by 
paragraph (b) of this section, the applicable provisions of Sec. Sec.  
1.1038-1 and 1.1038-2 shall apply to all reacquisitions of real property 
occurring in each and every taxable year beginning after December 31, 
1957, and before September 3, 1964, for which the assessment of a 
deficiency, or the credit or refund of an overpayment, is not prevented 
on September 2, 1964, by the operation of any law or rule of law. The 
election so made shall apply to all taxable years beginning after 
December 31, 1957, and before September 3, 1964, for which the 
assessment of a deficiency, or the credit or refund of an overpayment, 
is not prevented on September 2, 1964, by the operation of any law or 
rule of law and shall apply to every reacquisition occurring in such 
taxable years. The fact that the assessment of a deficiency, or the 
credit or refund of an overpayment, is prevented for any other taxable 
year or years affected by the election will not prohibit the making of 
an election under this section. For example, if an individual who uses 
the calendar year as the taxable year were to sell in 1960 real property 
used as his principal residence in respect of the sale of which gain is 
not recognized under section 1034, and if such property were reacquired 
by the seller in 1962 and resold within 1 year, he would be permitted to 
make an election under this section with respect to such reacquisition 
even though on September 2, 1964, the period of limitations on 
assessment or refund has run for 1960. An election under this section 
shall be deemed a consent to the application of the provisions of this 
section.
    (b) Time and manner of making election--(1) In general. (i) An 
election to have the provisions of Sec.  1.1038-2 apply to 
reacquisitions of real property occurring in taxable years beginning 
after December 31, 1957, and before September 3, 1964, shall be made by 
filing on or before September 3, 1965, a return, an amended return, or a 
claim for refund, whichever is proper, for each taxable year in which 
the resale of such real property occurs. If the return for any such year 
is not due on or before such date and has not been filed, the election 
with respect to such taxable year shall be made by filing on or before 
such date the statement described in subparagraph (2) of this paragraph.
    (ii) An election to have the provisions of Sec.  1.1038-1 apply to 
reacquisitions of real property occurring in taxable years beginning 
after December 31, 1957, and before September 3, 1964, shall be made by 
filing on or before September 3, 1965, a return, an amended return, or a 
claim for refund, whichever is proper, for each taxable year in which 
such reacquisitions occur. If the return for any such year is not due on 
or before such date and has not been filed, the election with respect to 
such taxable year shall be made by filing on or before such date the 
statement described in subparagraph (2) of this paragraph.
    (iii) If the facts are such that Sec.  1.1038-2 applies to a 
reacquisition of property except that the reacquisition occurs in a 
taxable year beginning after December 31, 1957, and before September 3, 
1964, an election may not be made under this paragraph to have the 
provisions of Sec.  1.1038-1 apply to such reacquisition.
    (iv) Once made, an election under this paragraph may not be revoked 
after September 3, 1965. To any return, amended return, or claim for 
refund filed under this subparagraph there shall be attached the 
statement described in subparagraph (2) of this paragraph.
    (2) Statement to be attached. The statement described in 
subparagraph (1) of this paragraph shall indicate--
    (i) The name, address and account number of the taxpayer, and the 
fact that the taxpayer is electing to have

[[Page 175]]

the provisions of section 1038 apply to the reacquisitions of real 
property,
    (ii) The taxable years in which the reacquisitions of property occur 
and any other taxable year or years the tax for which is affected by the 
application of section 1038 to such reacquisitions,
    (iii) The office of the district director where the return or 
returns for such taxable year or years were or will be filed,
    (iv) The dates on which such return or returns were filed and on 
which the tax for such taxable year or years was paid,
    (v) The type of real property reacquired, the terms under which such 
property was sold and reacquired, and an indication of whether the 
taxpayer is applying the provisions of Sec.  1.1038-2 to the 
reacquisition of such property,
    (vi) If Sec.  1.1038-2 is being applied to the reacquisition, the 
terms under which the old residence was resold and, if applicable, the 
terms under which the new residence was sold, and
    (vii) The office where, and the date when, the election to apply 
section 121 in respect to any sale of such property was or will be made.
    (3) Place for filing. Any claim for refund, amended return, or 
statement, filed under this paragraph in respect of any taxable year, 
whether the taxable year in which occurs the reacquisition of property 
or the taxable year in which occurs the resale of the old residence, 
shall be filed in the office of the district director in which the 
return for such taxable year was or will be filed.
    (c) Extension of period of limitations on assessment or refund--(1) 
Assessment of tax. If an election is properly made under paragraph (b) 
of this section and the assessment of a deficiency for the taxable years 
to which such election applies is not prevented on September 2, 1964, by 
the operation of any law or rule of law, the period within which a 
deficiency for such taxable years may be assessed shall, to the extent 
such deficiency is attributable to the application of section 1038, not 
expire prior to one year after the date on which such election is made.
    (2) Refund of tax. If an election is properly made under paragraph 
(b) of this section and the credit or refund of any overpayment for the 
taxable years to which such election applies is not prevented on 
September 2, 1964, by the operation of any law or rule of law, the 
period within which a claim for credit or refund of an overpayment for 
such taxable years may be filed shall, to the extent such overpayment is 
attributable to the application of section 1038, not expire prior to one 
year after the date on which such election is made.
    (d) Payment of interest for period prior to September 2, 1964. No 
interest shall be payable with respect to any deficiency attributable to 
the application of the provisions of section 1038, and no interest shall 
be allowed with respect to any credit or refund of any overpayment 
attributable to the application of such section, for any period prior to 
September 2, 1964. See section 2(c)(3) of the Act of September 2, 1964 
(Pub. L. 88-750, 78 Stat. 856).

[T.D. 6916, 32 FR 5930, Apr. 13, 1967]



Sec.  1.1039-1  Certain sales of low-income housing projects.

    (a) Nonrecognition of gain. Section 1039 provides rules under which 
the taxpayer may elect not to recognize gain in certain cases where a 
qualified housing project is sold or disposed of after October 9, 1969, 
in an approved disposition and another such qualified housing project or 
projects (referred to as the replacement project) is acquired, 
constructed, or reconstructed within a specified reinvestment period. If 
the requirements of section 1039 are met, and if the taxpayer makes an 
election in accordance with the provisions of paragraph (b)(4) of this 
section, then the gain realized upon the sale or disposition is 
recognized only to the extent that the net amount realized on such sale 
or disposition exceeds the cost of the replacement project. However, 
notwithstanding section 1039, gain may be recognized by reason of the 
application of section 1245 or 1250 to the sale or disposition. (See 
Sec.  1.1245-6(b) and Sec.  1.1250-3(h). The terms qualified housing 
project, approved disposition, reinvestment period, and net amount 
realized are defined in paragraph (c) of this section.
    (b) Rules of application--(1) In general. The election under section 
1039(a) may be made only by the taxpayer owning

[[Page 176]]

the qualified housing project disposed of. Thus, if the qualified 
housing project disposed of is owned by a partnership, the partnership 
must make the election. (See section 703(b).) Similarly, if the 
qualified housing project disposed of is owned by a corporation or 
trust, the corporation or trust must make the election. In addition, the 
reinvestment of the taxpayer must be in such a manner that the taxpayer 
would be entitled to a deduction for depreciation on the replacement 
project. Thus, if the qualified housing project disposed of is owned by 
individual A, the purchase by A of stock in a corporation owning or 
constructing such a project or of an interest in a partnership owning or 
constructing such a project will not be considered as the purchase or 
construction by A of such a project.
    (2) Special rules. (i) The cost of a replacement project acquired 
before the approved disposition of a qualified housing project shall be 
taken into account under section 1039 only if such property is held by 
the taxpayer on the date of the approved disposition.
    (ii) Except as provided in section 1039 (d), no property acquired by 
the taxpayer shall be taken into account for purposes of section 
1039(a)(2) unless the unadjusted basis of such property is its cost 
within the meaning of section 1012. For example, if a qualified housing 
project is acquired in an exchange under section 1031, relating to 
exchange of property held for productive use or investment, such 
property will not be taken into account under section 1039(a)(2) because 
its basis is determined by reference to the basis of the property 
exchanged. (See section 1031(d).)
    (3) Cost of replacement project. The taxpayer's cost for the 
replacement project includes only amounts properly treated as capital 
expenditures by the taxpayer that are attributable to acquisition, 
construction, or reconstruction made within the reinvestment period (as 
defined in paragraph (c)(4) of this section). See section 263 for rules 
as to what constitutes capital expenditures. Thus, assume that a 
calendar year taxpayer realizes gain in 1970 upon the approved 
disposition of a qualified housing project occurring on January 1, 1970. 
If the taxpayer had begun construction of another qualified housing 
project on January 1, 1969, and completes such construction on June 1, 
1972, only that portion of the cost attributable to the period before 
January 1, 1972, constitutes the cost of the replacement project for 
purposes of section 1039. For purposes of determining the cost of a 
replacement project attributable to a particular period, the total cost 
of the project may be allocated to such period on the basis of the 
portion of the total project actually constructed during such period.
    (4) Election. (i) An election not to recognize the gain realized 
upon an approved disposition of a qualified housing project to the 
extent provided in section 1039(a) may be made by attaching a statement 
to the income tax return filed for the first taxable year in which any 
portion of the gain on such disposition is realized. Such a statement 
shall contain the information required by subdivision (iii) of this 
subparagraph. If the taxpayer does not file such a statement for the 
first taxable year in which any portion of the gain is realized, but 
fails to report a portion of the gain realized upon the approved 
disposition as income for such year or for any subsequent taxable year, 
then an election shall be deemed to be made under section 1039 (a) with 
respect to that portion of the gain not reported as income.
    (ii) An election may be made under section 1039(a) even though the 
replacement project has not been acquired or constructed at the time of 
election. However, if an election has been made and (a) a replacement 
project is not constructed, reconstructed, or acquired, (b) the cost of 
the replacement project is lower than the net amount realized from the 
approved disposition, or (c) a decision is made not to construct, 
reconstruct, or acquire a replacement project, then the tax liability 
for the year or years for which the election was made shall be 
recomputed and an amended return filed. An election may be made even 
though the taxpayer has filed his return and recognized gain upon the 
disposition provided that the period of limitation on filing claims for 
credit or refund prescribed by section 6511 has not expired. In such 
case, a statement containing

[[Page 177]]

the information required by subdivision (iii) of this subparagraph 
should be filed together with a claim for credit or refund for the 
taxable year or years in which gain was recognized.
    (iii) The statement referred to in subdivisions (i) and (ii) of this 
subparagraph shall contain the following information:
    (a) The date of the approved disposition;
    (b) If a replacement project has been acquired, the date of 
acquisition and cost of the project;
    (c) If a replacement project has been constructed or reconstructed 
by or for the taxpayer, the date construction was begun, the date 
construction was completed, and the percentage of construction completed 
within the reinvestment period;
    (d) If no replacement project has been constructed, reconstructed, 
or acquired prior to the time of filing of the statement, the estimated 
cost of such construction, reconstruction, or acquisition;
    (e) The adjusted basis of the project disposed of; and
    (f) The amount realized upon the approved disposition and a 
description of the expenses directly connected with the disposition and 
the taxes (other than income taxes) attributable to the disposition.
    (c) Definitions--(1) General. The definitions contained in 
subparagraphs (2) through (5) of this paragraph shall apply for purposes 
of this section.
    (2) Qualified housing project. The term qualified housing project 
means a rental or cooperative housing project for lower income families 
that has been constructed, reconstructed, or rehabilitated pursuant to a 
mortgage which is insured under section 221(d)(3) or 236 of the National 
Housing Act, provided that with respect to the housing project disposed 
of and the replacement project constructed, reconstructed, or acquired, 
the owner of the project at the time of the approved disposition and 
prior to the close of the reinvestment period is, under such sections or 
regulations issued thereunder,
    (i) Limited as to rate of return on his investment in the project, 
and
    (ii) Limited as to rentals or occupancy charges for units in the 
project.

If the owner of the project is organized and operated as a nonprofit 
cooperative or other nonprofit organization, then such owner shall be 
considered to meet the requirement of subdivision (i) of this 
subparagraph.
    (3) Approved disposition. The term approved disposition means a sale 
or other disposition of a qualified housing project to the tenants or 
occupants of units in such project, or to a nonprofit cooperative or 
other nonprofit organization formed and operated solely for the benefit 
of such tenants or occupants, provided that it is approved by the 
Secretary of Housing and Urban Development or his delegate under section 
221 (d)(3) or 236 of the National Housing Act or regulations issued 
under such sections. Evidence of such approval should be attached to the 
tax return or statement in which the election under section 1039 is 
made.
    (4) Reinvestment period. (i) The term reinvestment period means the 
period beginning 1 year before the date of the disposition and ending 1 
year after the close of the first taxable year in which any part of the 
gain from such disposition is realized, or at such later date as may be 
designated pursuant to an application made by the taxpayer. Such 
application shall be made before the expiration of one year after the 
close of the first taxable year in which any part of the gain from such 
disposition is realized, unless the taxpayer can show to the 
satisfaction of the district director that--
    (a) Reasonable cause exists for not having filed the application 
within the required period, and
    (b) The filing of such application was made within a reasonable time 
after the expiration of the required period.

The application shall contain all the information required by paragraph 
(b)(4) of this section and shall be made to the district director for 
the internal revenue district in which the return is filed for the first 
taxable year in which any of the gain from the approved disposition is 
realized.
    (ii) Ordinarily, requests for extension of the reinvestment period 
will not be granted until near the end of such period and any extension 
will usually be limited to a period not exceeding one

[[Page 178]]

year. Although granting of an extension depends upon the facts and 
circumstances of a particular case, if a predominant portion of the 
construction of the replacement project has been completed or is 
reasonably expected to be completed within the reinvestment period 
(determined without regard to any extension thereof), an extension of 
the reinvestment period will ordinarily be granted. The fact that there 
is a scarcity of replacement property for acquisition will not be 
considered sufficient grounds for granting an extension.
    (5) Net amount realized. (i) The net amount realized from the 
approved disposition of a qualified housing project is the amount 
realized from such disposition, reduced by--
    (a) The expenses paid or incurred by the taxpayer which are directly 
connected with the approved disposition, and
    (b) The amount of taxes (other than income taxes) paid or incurred 
by the taxpayer which are attributable to the approved disposition.
    (ii) Examples of expenses directly connected with an approved 
disposition of a qualified housing project include amounts paid for 
sales or other commissions, advertising, and for the preparation of a 
deed or other legal services in connection with the disposition. An 
amount paid for a repair to the building will be considered as an 
expense directly connected with the approved disposition under 
subdivision (i)(a) of this subparagraph only if such repair is required 
as a condition of sale, or is required by the Secretary of Housing and 
Urban Development or his delegate as a condition of approval of the 
disposition.
    (iii) Examples of taxes that are attributable to the approved 
disposition include local property transfer taxes and stamp taxes. A 
local real property tax is not so attributable.
    (d) Basis and holding period of replacement project--(1) Basis. If 
the taxpayer makes an election under section 1039, the basis of the 
replacement housing project shall be its cost (including costs incurred 
subsequent to the reinvestment period) reduced by the amount of gain not 
recognized under section 1039 (a). If the replacement consists of more 
than one housing project, the basis determined under this subparagraph 
shall be allocated to the properties in proportion to their respective 
costs.
    (2) Holding period. The holding period of the replacement housing 
project shall begin on the date the taxpayer acquires such project, that 
is, on the date the taxpayer first acquires possession or control of 
such project and bears the burdens and enjoys the benefits of ownership 
of the replacement project. (For special rule regarding the holding 
period of property for purposes of section 1250, see section 
1250(e)(4).)
    (e) Assessment of deficiencies--(1) Deficiency attributable to gain. 
If a taxpayer makes an election under section 1039(a) with respect to an 
approved disposition, any deficiency attributable to the gain on such 
disposition, for any taxable year in which any part of such gain is 
realized, may be assessed at any time before the expiration of 3 years 
after the date the district director or director of the regional service 
center with whom the return for such year has been filed is notified by 
the taxpayer of the acquisition or the completion of construction or 
reconstruction of the replacement qualified housing project or of the 
failure to acquire, construct, or reconstruct a replacement qualified 
housing project, as the case may be. Such a deficiency may be assessed 
before the expiration of such 3-year period notwithstanding the 
provisions of section 6212(c) or the provisions of any other law or rule 
of law which would otherwise prevent such assessment. If replacement has 
been made, such notification shall contain the information required by 
paragraph (b)(4)(iii) of this section. Such notification shall be 
attached to the return filed for the taxable year or years in which the 
replacement occurs, or in which the period for the replacement expires, 
and a copy of such notification shall be filed with the district 
director or director of regional service center with whom the election 
under section 1039(a) was required to be filed, if the return is not 
filed with such director.
    (2) Deficiency attributable to election. If gain upon an approved 
disposition is realized in two (or more) taxable years, and the 
replacement qualified housing

[[Page 179]]

project was acquired, constructed, or reconstructed before the beginning 
of the last such year, any deficiency, for any taxable year before such 
last year, which is attributable to an election by the taxpayer under 
section 1039(a) may be assessed at any time before the expiration of the 
period within which a deficiency for such last taxable year may be 
assessed, notwithstanding the provisions of section 6212(c) or 6501 or 
the provisions of any law or rule of law which would otherwise prevent 
such assessment. Thus, if gain upon an approved disposition is realized 
in 1971 and 1975, and if a replacement project is purchased in 1971, any 
deficiency for 1971 may be assessed within the period for assessing a 
deficiency for 1975.

[T.D. 7191, 37 FR 12951, June 30, 1972; 37 FR 14385, July 20, 1972, as 
amended by T.D. 7400, 41 FR 5101, Feb. 4, 1976]



Sec.  1.1041-1T  Treatment of transfer of property between spouses 
or incident to divorce (temporary).

    Q-1: How is the transfer of property between spouses treated under 
section 1041?
    A-1: Generally, no gain or loss is recognized on a transfer of 
property from an individual to (or in trust for the benefit of) a spouse 
or, if the transfer is incident to a divorce, a former spouse. The 
following questions and answers describe more fully the scope, tax 
consequences and other rules which apply to transfers of property under 
section 1041.
    (a) Scope of section 1041 in general.
    Q-2: Does section 1041 apply only to transfers of property incident 
to divorce?
    A-2: No. Section 1041 is not limited to transfers of property 
incident to divorce. Section 1041 applies to any transfer of property 
between spouses regardless of whether the transfer is a gift or is a 
sale or exchange between spouses acting at arm's length (including a 
transfer in exchange for the relinquishment of property or marital 
rights or an exchange otherwise governed by another nonrecognition 
provision of the Code). A divorce or legal separation need not be 
contemplated between the spouses at the time of the transfer nor must a 
divorce or legal separation ever occur.

    Example 1. A and B are married and file a joint return. A is the 
sole owner of a condominium unit. A sale or gift of the condominium from 
A to B is a transfer which is subject to the rules of section 1041.
    Example 2. A and B are married and file separate returns. A is the 
owner of an independent sole proprietorship, X Company. In the ordinary 
course of business, X Company makes a sale of property to B. This sale 
is a transfer of property between spouses and is subject to the rules of 
section 1041.
    Example 3. Assume the same facts as in example (2), except that X 
Company is a corporation wholly owned by A. This sale is not a sale 
between spouses subject to the rules of section 1041. However, in 
appropriate circumstances, general tax principles, including the step-
transaction doctrine, may be applicable in recharacterizing the 
transaction.

    Q-3: Do the rules of section 1041 apply to a transfer between 
spouses if the transferee spouse is a nonresident alien?
    A-3: No. Gain or loss (if any) is recognized (assuming no other 
nonrecognition provision applies) at the time of a transfer of property 
if the property is transferred to a spouse who is a nonresident alien.
    Q-4: What kinds of transfers are governed by section 1041?
    A-4: Only transfers of property (whether real or personal, tangible 
or intangible) are governed by section 1041. Transfers of services are 
not subject to the rules of section 1041.
    Q-5: Must the property transferred to a former spouse have been 
owned by the transferor spouse during the marriage?
    A-5: No. A transfer of property acquired after the marriage ceases 
may be governed by section 1041.
    (b) Transfer incident to the divorce.
    Q-6: When is a transfer of property incident to the divorce?
    A-6: A transfer of property is incident to the divorce in either of 
the following 2 circumstances--
    (1) The transfer occurs not more than one year after the date on 
which the marriage ceases, or
    (2) The transfer is related to the cessation of the marriage.

Thus, a transfer of property occurring not more than one year after the 
date on which the marriage ceases need not be related to the cessation 
of the marriage to qualify for section 1041 treatment. (See A-7 for 
transfers occurring

[[Page 180]]

more than one year after the cessation of the marriage.)
    Q-7: When is a transfer of property related to the cessation of the 
marriage?
    A-7: A transfer of property is treated as related to the cessation 
of the marriage if the transfer is pursuant to a divorce or separation 
instrument, as defined in section 71(b)(2), and the transfer occurs not 
more than 6 years after the date on which the marriage ceases. A divorce 
or separation instrument includes a modification or amendment to such 
decree or instrument. Any transfer not pursuant to a divorce or 
separation instrument and any transfer occurring more than 6 years after 
the cessation of the marriage is presumed to be not related to the 
cessation of the marriage. This presumption may be rebutted only by 
showing that the transfer was made to effect the division of property 
owned by the former spouses at the time of the cessation of the 
marriage. For example, the presumption may be rebutted by showing that 
(a) the transfer was not made within the one- and six-year periods 
described above because of factors which hampered an earlier transfer of 
the property, such as legal or business impediments to transfer or 
disputes concerning the value of the property owned at the time of the 
cessation of the marriage, and (b) the transfer is effected promptly 
after the impediment to transfer is removed.
    Q-8: Do annulments and the cessations of marriages that are void ab 
initio due to violations of state law constitute divorces for purposes 
of section 1041?
    A-8: Yes.
    (c) Transfers on behalf of a spouse.
    Q-9: May transfers of property to third parties on behalf of a 
spouse (or former spouse) qualify under section 1041?
    A-9: Yes. There are three situations in which a transfer of property 
to a third party on behalf of a spouse (or former spouse) will qualify 
under section 1041, provided all other requirements of the section are 
satisfied. The first situation is where the transfer to the third party 
is required by a divorce or separation instrument. The second situation 
is where the transfer to the third party is pursuant to the written 
request of the other spouse (or former spouse). The third situation is 
where the transferor receives from the other spouse (or former spouse) a 
written consent or ratification of the transfer to the third party. Such 
consent or ratification must state that the parties intend the transfer 
to be treated as a transfer to the nontransferring spouse (or former 
spouse) subject to the rules of section 1041 and must be received by the 
transferor prior to the date of filing of the transferor's first return 
of tax for the taxable year in which the transfer was made. In the three 
situations described above, the transfer of property will be treated as 
made directly to the nontransferring spouse (or former spouse) and the 
nontransferring spouse will be treated as immediately transferring the 
property to the third party. The deemed transfer from the 
nontransferring spouse (or former spouse) to the third party is not a 
transaction that qualifies for nonrecognition of gain under section 
1041. This A-9 shall not apply to transfers to which Sec.  1.1041-2 
applies.
    (d) Tax consequences of transfers subject to section 1041.
    Q-10: How is the transferor of property under section 1041 treated 
for income tax purposes?
    A-10: The transferor of property under section 1041 recognizes no 
gain or loss on the transfer even if the transfer was in exchange for 
the release of marital rights or other consideration. This rule applies 
regardless of whether the transfer is of property separately owned by 
the transferor or is a division (equal or unequal) of community 
property. Thus, the result under section 1041 differs from the result in 
United States v. Davis, 370 U.S. 65 (1962).
    Q-11: How is the transferee of property under section 1041 treated 
for income tax purposes?
    A-11: The transferee of property under section 1041 recognizes no 
gain or loss upon receipt of the transferred property. In all cases, the 
basis of the transferred property in the hands of the transferee is the 
adjusted basis of such property in the hands of the transferor 
immediately before the transfer. Even if the transfer is a bona

[[Page 181]]

fide sale, the transferee does not acquire a basis in the transferred 
property equal to the transferee's cost (the fair market value). This 
carryover basis rule applies whether the adjusted basis of the 
transferred property is less than, equal to, or greater than its fair 
market value at the time of transfer (or the value of any consideration 
provided by the transferee) and applies for purposes of determining loss 
as well as gain upon the subsequent disposition of the property by the 
transferee. Thus, this rule is different from the rule applied in 
section 1015(a) for determining the basis of property acquired by gift.
    Q-12: Do the rules described in A-10 and A-11 apply even if the 
transferred property is subject to liabilities which exceed the adjusted 
basis of the property?
    A-12: Yes. For example, assume A owns property having a fair market 
value of $10,000 and an adjusted basis of $1,000. In contemplation of 
making a transfer of this property incident to a divorce from B, A 
borrows $5,000 from a bank, using the property as security for the 
borrowing. A then transfers the property to B and B assumes, or takes 
the property subject to, the liability to pay the $5,000 debt. Under 
section 1041, A recognizes no gain or loss upon the transfer of the 
property, and the adjusted basis of the property in the hands of B is 
$1,000.
    Q-13: Will a transfer under section 1041 result in a recapture of 
investment tax credits with respect to the property transferred?
    A-13: In general, no. Property transferred under section 1041 will 
not be treated as being disposed of by, or ceasing to be section 38 
property with respect to, the transferor. However, the transferee will 
be subject to investment tax credit recapture if, upon or after the 
transfer, the property is disposed of by, or ceases to be section 38 
property with respect to, the transferee. For example, as part of a 
divorce property settlement, B receives a car from A that has been used 
in A's business for two years and for which an investment tax credit was 
taken by A. No part of A's business is transferred to B and B's use of 
the car is solely personal. B is subject to recapture of the investment 
tax credit previously taken by A.
    (e) Notice and recordkeeping requirement with respect to 
transactions under section 1041.
    Q-14: Does the trasnsferor of property in a transaction described in 
section 1041 have to supply, at the time of the transfer, the transferee 
with records sufficient to determine the adjusted basis and holding 
period of the property at the time of the transfer and (if applicable) 
with notice that the property transferred under section 1041 is 
potentially subject to recapture of the investment tax credit?
    A-14: Yes. A transferor of property under section 1041 must, at the 
time of the transfer, supply the transferee with records sufficient to 
determine the adjusted basis and holding period of the property as of 
the date of the transfer. In addition, in the case of a transfer of 
property which carries with it a potential liability for investment tax 
credit recapture, the transferor must, at the time of the transfer, 
supply the transferee with records sufficient to determine the amount 
and period of such potential liability. Such records must be preserved 
and kept accessible by the transferee.
    (f) Property settlements--effective dates, transitional periods and 
elections.
    Q-15: When does section 1041 become effective?
    A-15: Generally, section 1041 applies to all transfers after July 
18, 1984. However, it does not apply to transfers after July 18, 1984 
pursuant to instruments in effect on or before July 18, 1984. (See A-16 
with respect to exceptions to the general rule.)
    Q-16: Are there any exceptions to the general rule stated in A-15 
above?
    A-16: Yes. Two transitional rules provide exceptions to the general 
rule stated in A-15. First, section 1041 will apply to transfers after 
July 18, 1984 under instruments that were in effect on or before July 
18, 1984 if both spouses (or former spouses) elect to have section 1041 
apply to such transfers. Second, section 1041 will apply to all 
transfers after December 31, 1983 (including transfers under instruments 
in effect on or before July 18, 1984) if both spouses (or former 
spouses) elect

[[Page 182]]

to have section 1041 apply. (See A-18 relating to the time and manner of 
making the elections under the first or second transitional rule.)
    Q-17: Can an election be made to have section 1041 apply to some, 
but not all, transfers made after December 31, 1983, or some but not 
all, transfers made after July 18, 1984 under instruments in effect on 
or before July 18, 1984?
    A-17: No. Partial elections are not allowed. An election under 
either of the two elective transitional rules applies to all transfers 
governed by that election whether before or after the election is made, 
and is irrevocable.
    (g) Property settlements--time and manner of making the elections 
under section 1041.
    Q-18: How do spouses (or former spouses) elect to have section 1041 
apply to transfers after December 31, 1983, or to transfers after July 
18, 1984 under instruments in effect on or before July 18, 1984?
    A-18: In order to make an election under section 1041 for property 
transfers after December 31, 1983, or property transfers under 
instruments that were in effect on or before July 18, 1984, both spouses 
(or former spouses) must elect the application of the rules of section 
1041 by attaching to the transferor's first filed income tax return for 
the taxable year in which the first transfer occurs, a statement signed 
by both spouses (or former spouses) which includes each spouse's social 
security number and is in substantially the form set forth at the end of 
this answer.
    In addition, the transferor must attach a copy of such statement to 
his or her return for each subsequent taxable year in which a transfer 
is made that is governed by the transitional election. A copy of the 
signed statment must be kept by both parties.
    The election statements shall be in substantially the following 
form:
    In the case of an election regarding transfers after 1983:

                          Section 1041 Election

    The undersigned hereby elect to have the provisions of section 1041 
of the Internal Revenue Code apply to all qualifying transfers of 
property after December 31, 1983. The undersigned understand that 
section 1041 applies to all property transferred between spouses, or 
former spouses incident to divorce. The parties further understand that 
the effects for Federal income tax purposes of having section 1041 apply 
are that (1) no gain or loss is recognized by the transferor spouse or 
former spouse as a result of this transfer; and (2) the basis of the 
transferred property in the hands of the transferee is the adjusted 
basis of the property in the hands of the transferor immediately before 
the transfer, whether or not the adjusted basis of the transferred 
property is less than, equal to, or greater than its fair market value 
at the time of the transfer. The undersigned understand that if the 
transferee spouse or former spouse disposes of the property in a 
transaction in which gain is recognized, the amount of gain which is 
taxable may be larger than it would have been if this election had not 
been made.

    In the case of an election regarding preexisting decrees:

                          Section 1041 Election

    The undersigned hereby elect to have the provisions of section 1041 
of the Internal Revenue Code apply to all qualifying transfers of 
property after July 18, 1984 under any instrument in effect on or before 
July 18, 1984. The undersigned understand that section 1041 applies to 
all property transferred between spouses, or former spouses incident to 
the divorce. The parties further understand that the effects for Federal 
income tax purposes of having section 1041 apply are that (1) no gain or 
loss is recognized by the transferor spouse or former spouse as a result 
of this transfer; and (2) the basis of the transferred property in the 
hands of the transferee is the adjusted basis of the property in the 
hands of the transferor immediately before the transfer, whether or not 
the adjusted basis of the transferred property is less than, equal to, 
or greater than its fair market value at the time of the transfer. The 
undersigned understand that if the transferee spouse or former spouse 
disposes of the property in a transaction in which gain is recognized, 
the amount of gain which is taxable may be larger than it would have 
been if this election had not been made.

(Secs. 1041(d)(4), (98 Stat. 798, 26 U.S.C. 1041(d)(4)), 152(e)(2)(A) 
(98 Stat. 802, 26 U.S.C. 152(e)(2)(A)), 215(c) (98 Stat. 800, 26 U.S.C. 
215(c)) and 7805 (68A Stat. 917, 26 U.S.C. 7805) of the Internal Revenue 
Code of 1954))

[T.D. 7973, 49 FR 34452, Aug. 31, 1984; T.D. 9035, 68 FR 1536, Jan. 13, 
2003]



Sec.  1.1041-2  Redemptions of stock.

    (a) In general--(1) Redemptions of stock not resulting in 
constructive distributions. Notwithstanding Q&A-9 of Sec.  1.1041-

[[Page 183]]

1T(c), if a corporation redeems stock owned by a spouse or former spouse 
(transferor spouse), and the transferor spouse's receipt of property in 
respect of such redeemed stock is not treated, under applicable tax law, 
as resulting in a constructive distribution to the other spouse or 
former spouse (nontransferor spouse), then the form of the stock 
redemption shall be respected for Federal income tax purposes. 
Therefore, the transferor spouse will be treated as having received a 
distribution from the corporation in redemption of stock.
    (2) Redemptions of stock resulting in constructive distributions. 
Notwithstanding Q&A-9 of Sec.  1.1041-1T(c), if a corporation redeems 
stock owned by a transferor spouse, and the transferor spouse's receipt 
of property in respect of such redeemed stock is treated, under 
applicable tax law, as resulting in a constructive distribution to the 
nontransferor spouse, then the redeemed stock shall be deemed first to 
be transferred by the transferor spouse to the nontransferor spouse and 
then to be transferred by the nontransferor spouse to the redeeming 
corporation. Any property actually received by the transferor spouse 
from the redeeming corporation in respect of the redeemed stock shall be 
deemed first to be transferred by the corporation to the nontransferor 
spouse in redemption of such spouse's stock and then to be transferred 
by the nontransferor spouse to the transferor spouse.
    (b) Tax consequences--(1) Transfers described in paragraph (a)(1) of 
this section. Section 1041 will not apply to any of the transfers 
described in paragraph (a)(1) of this section. See section 302 for rules 
relating to the tax consequences of certain redemptions; redemptions 
characterized as distributions under section 302(d) will be subject to 
section 301 if received from a Subchapter C corporation or section 1368 
if received from a Subchapter S corporation.
    (2) Transfers described in paragraph (a)(2) of this section. The tax 
consequences of each deemed transfer described in paragraph (a)(2) of 
this section are determined under applicable provisions of the Internal 
Revenue Code as if the spouses had actually made such transfers. 
Accordingly, section 1041 applies to any deemed transfer of the stock 
and redemption proceeds between the transferor spouse and the 
nontransferor spouse, provided the requirements of section 1041 are 
otherwise satisfied with respect to such deemed transfer. Section 1041, 
however, will not apply to any deemed transfer of stock by the 
nontransferor spouse to the redeeming corporation in exchange for the 
redemption proceeds. See section 302 for rules relating to the tax 
consequences of certain redemptions; redemptions characterized as 
distributions under section 302(d) will be subject to section 301 if 
received from a Subchapter C corporation or section 1368 if received 
from a Subchapter S corporation.
    (c) Special rules in case of agreements between spouses or former 
spouses--(1) Transferor spouse taxable. Notwithstanding applicable tax 
law, a transferor spouse's receipt of property in respect of the 
redeemed stock shall be treated as a distribution to the transferor 
spouse in redemption of such stock for purposes of paragraph (a)(1) of 
this section, and shall not be treated as resulting in a constructive 
distribution to the nontransferor spouse for purposes of paragraph 
(a)(2) of this section, if a divorce or separation instrument, or a 
valid written agreement between the transferor spouse and the 
nontransferor spouse, expressly provides that--
    (i) Both spouses or former spouses intend for the redemption to be 
treated, for Federal income tax purposes, as a redemption distribution 
to the transferor spouse; and
    (ii) Such instrument or agreement supersedes any other instrument or 
agreement concerning the purchase, sale, redemption, or other 
disposition of the stock that is the subject of the redemption.
    (2) Nontransferor spouse taxable. Notwithstanding applicable tax 
law, a transferor spouse's receipt of property in respect of the 
redeemed stock shall be treated as resulting in a constructive 
distribution to the nontransferor spouse for purposes of paragraph 
(a)(2) of this section, and shall not be treated as a distribution to 
the transferor spouse in redemption of such stock for

[[Page 184]]

purposes of paragraph (a)(1) of this section, if a divorce or separation 
instrument, or a valid written agreement between the transferor spouse 
and the nontransferor spouse, expressly provides that--
    (i) Both spouses or former spouses intend for the redemption to be 
treated, for Federal income tax purposes, as resulting in a constructive 
distribution to the nontransferor spouse; and
    (ii) Such instrument or agreement supersedes any other instrument or 
agreement concerning the purchase, sale, redemption, or other 
disposition of the stock that is the subject of the redemption.
    (3) Execution of agreements. For purposes of this paragraph (c), a 
divorce or separation instrument must be effective, or a valid written 
agreement must be executed by both spouses or former spouses, prior to 
the date on which the transferor spouse (in the case of paragraph (c)(1) 
of this section) or the nontransferor spouse (in the case of paragraph 
(c)(2) of this section) files such spouse's first timely filed Federal 
income tax return for the year that includes the date of the stock 
redemption, but no later than the date such return is due (including 
extensions).
    (d) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. Corporation X has 100 shares outstanding. A and B each 
own 50 shares. A and B divorce. The divorce instrument requires B to 
purchase A's shares, and A to sell A's shares to B, in exchange for 
$100x. Corporation X redeems A's shares for $100x. Assume that, under 
applicable tax law, B has a primary and unconditional obligation to 
purchase A's stock, and therefore the stock redemption results in a 
constructive distribution to B. Also assume that the special rule of 
paragraph (c)(1) of this section does not apply. Accordingly, under 
paragraphs (a)(2) and (b)(2) of this section, A shall be treated as 
transferring A's stock of Corporation X to B in a transfer to which 
section 1041 applies (assuming the requirements of section 1041 are 
otherwise satisfied), B shall be treated as transferring the Corporation 
X stock B is deemed to have received from A to Corporation X in exchange 
for $100x in an exchange to which section 1041 does not apply and 
sections 302(d) and 301 apply, and B shall be treated as transferring 
the $100x to A in a transfer to which section 1041 applies.
    Example 2. Assume the same facts as Example 1, except that the 
divorce instrument provides as follows: ``A and B agree that the 
redemption will be treated for Federal income tax purposes as a 
redemption distribution to A.'' The divorce instrument further provides 
that it ``supersedes all other instruments or agreements concerning the 
purchase, sale, redemption, or other disposition of the stock that is 
the subject of the redemption.'' By virtue of the special rule of 
paragraph (c)(1) of this section and under paragraphs (a)(1) and (b)(1) 
of this section, the tax consequences of the redemption shall be 
determined in accordance with its form as a redemption of A's shares by 
Corporation X and shall not be treated as resulting in a constructive 
distribution to B. See section 302.
    Example 3. Assume the same facts as Example 1, except that the 
divorce instrument requires A to sell A's shares to Corporation X in 
exchange for a note. B guarantees Corporation X's payment of the note. 
Assume that, under applicable tax law, B does not have a primary and 
unconditional obligation to purchase A's stock, and therefore the stock 
redemption does not result in a constructive distribution to B. Also 
assume that the special rule of paragraph (c)(2) of this section does 
not apply. Accordingly, under paragraphs (a)(1) and (b)(1) of this 
section, the tax consequences of the redemption shall be determined in 
accordance with its form as a redemption of A's shares by Corporation X. 
See section 302.
    Example 4. Assume the same facts as Example 3, except that the 
divorce instrument provides as follows: ``A and B agree the redemption 
shall be treated, for Federal income tax purposes, as resulting in a 
constructive distribution to B.'' The divorce instrument further 
provides that it ``supersedes any other instrument or agreement 
concerning the purchase, sale, redemption, or other disposition of the 
stock that is the subject of the redemption.'' By virtue of the special 
rule of paragraph (c)(2) of this section, the redemption is treated as 
resulting in a constructive distribution to B for purposes of paragraph 
(a)(2) of this section. Accordingly, under paragraphs (a)(2) and (b)(2) 
of this section, A shall be treated as transferring A's stock of 
Corporation X to B in a transfer to which section 1041 applies (assuming 
the requirements of section 1041 are otherwise satisfied), B shall be 
treated as transferring the Corporation X stock B is deemed to have 
received from A to Corporation X in exchange for a note in an exchange 
to which section 1041 does not apply and sections 302(d) and 301 apply, 
and B shall be treated as transferring the note to A in a transfer to 
which section 1041 applies.

    (e) Effective date. Except as otherwise provided in this paragraph, 
this section is applicable to redemptions of stock on or after January 
13, 2003, except for redemptions of stock that are pursuant

[[Page 185]]

to instruments in effect before January 13, 2003. For redemptions of 
stock before January 13, 2003 and redemptions of stock that are pursuant 
to instruments in effect before January 13, 2003, see Sec.  1.1041-
1T(c), A-9. However, these regulations will be applicable to redemptions 
described in the preceding sentence of this paragraph (e) if the spouses 
or former spouses execute a written agreement on or after August 3, 2001 
that satisfies the requirements of one of the special rules in paragraph 
(c) of this section with respect to such redemption. A divorce or 
separation instrument or valid written agreement executed on or after 
August 3, 2001, and before May 13, 2003 that meets the requirements of 
the special rule in Regulations Project REG-107151-00 published in 2001-
2 C.B. 370 (see Sec.  601.601(d)(2) of this chapter) will be treated as 
also meeting the requirements of the special rule in paragraph (c)(2) of 
this section.

[T.D. 9035, 68 FR 1536, Jan. 13, 2003]



Sec.  1.1042-1T  Questions and answers relating to the sales of stock 
to employee stock ownership plans or certain cooperatives (temporary).

    Q-1: What does section 1042 provide?
    A-1: (a) Section 1042 provides rules under which a taxpayer may 
elect not to recognize gain in certain cases where qualified securities 
are sold to a qualifying employee stock ownership plan or worker-owned 
cooperative in taxable years of the seller beginning after July 18, 
1984, and qualified replacement property is purchased by the taxpayer 
within the replacement period. If the requirements of Q&A-2 of this 
section are met, and if the taxpayer makes an election under section 
1042(a) in accordance with Q&A-3 of this section, the gain realized by 
the taxpayer on the sale of the qualified securities is recognized only 
to the extent that the amount realized on such sale exceeds the cost to 
the taxpayer of the qualified replacement property.
    (b) Under section 1042, the term qualified securities means employer 
securities (as defined in section 409(l)) with respect to which each of 
the following requirements is satisfied: (1) The employer securities 
were issued by a domestic corporation; (2) for at least one year before 
and immediately after the sale, the domestic corporation that issued the 
employer securities (and each corporation that is a member of a 
controlled group of corporations with such corporation for purposes of 
section 409(l)) has no stock outstanding that is readily tradeable on an 
established market; (3) as of the time of the sale, the employer 
securities have been held by the taxpayer for more than 1 year; and (4) 
the employer securities were not received by the taxpayer in a 
distribution from a plan described in section 401(a) or in a transfer 
pursuant to an option or other right to acquire stock to which section 
83, 422, 422A, 423, or 424 applies.
    (c) The term replacement period means the period which begins 3 
months before the date on which the sale of qualified securities occurs 
and which ends 12 months after the date of such sale. A replacement 
period may include any period which occurs prior to July 19, 1984.
    (d) The term qualified replacement property means any securities (as 
defined in section 165(g)(2)) issued by a domestic corporation which 
does not, for the taxable year of such corporation in which the 
securities are purchased by the taxpayer, have passive investment income 
(as defined in section 1362(d)(3)(D)) that exceeds 25 percent of the 
gross receipts of such corporation for the taxable year preceding the 
taxable year of purchase. In addition, securities of the domestic 
corporation that issued the employer securities qualifying under section 
1042 (and of any corporation that is a member of a controlled group of 
corporations with such corporation for purposes of section 409(l)) will 
not qualify as qualified replacement property.
    (e) For purposes of section 1042(a), there is a purchase of 
qualified replacement property only if the basis of such property is 
determined by reference to its cost to the taxpayer. If the basis of the 
qualified replacement property is determined by reference to its basis 
in the hands of the transferor thereof or another person, or by 
reference to the basis of property (other than cash or its equivalent) 
exchanged for such

[[Page 186]]

property, then the basis of such property is not determined solely by 
reference to its cost to the taxpayer.
    Q-2: What is a sale of qualified securities for purposes of section 
1042(b)?
    A-2: (a) Under section 1042(b), a sale of qualified securities is 
one under which all of the following requirements are met:
    (1) The qualified securities are sold to an employee stock ownership 
plan (as defined in section 4975(e)(7)) maintained by the corporation 
that issued the qualified securities (or by a member of the controlled 
group of corporations with such corporation for purposes of section 
409(l)) or to an eligible worker-owned cooperative (as defined in 
section 1042(c)(2));
    (2) The employee stock ownership plan or eligible worker-owned 
cooperative owns, immediately after the sale, 30 percent or more of the 
total value of the employer securities (within the meaning of section 
409(l) outstanding as of such time;
    (3) No portion of the assets of the employee stock ownership plan or 
eligible worker-owned cooperative attributable to qualified securities 
that are sold to the plan or cooperative by the taxpayer or by any other 
person in a sale with respect to which an election under section 1042(a) 
is made accrue under the plan or are allocated by the cooperative, 
either directly or indirectly and either concurrently with or at any 
time thereafter, for the benefit of (i) the taxpayer; (ii) any person 
who is a member of the family of the taxpayer (within the meaning of 
section 267(c)(4)); or (iii) any person who owns (after the application 
of section 318(a)), at any time after July 18, 1984, and until 
immediately after the sale, more than 25 percent of in value of the 
outstanding portion of any class of stock of the corporation that issued 
the qualified securities (or of any member of the controlled group of 
corporations with such corporation for purposes of section 409(l)). For 
purposes of this calculation, stock that is owned, directly or 
indirectly, by or for a qualified plan shall not be treated as 
outstanding.
    (4) The taxpayer files with the Secretary (as part of the required 
election described in Q&A-3 of this section) a verified written 
statement of the domestic corporation (or corporations) whose employees 
are covered by the plan acquiring the qualified securities or of any 
authorized officer of the eligible workerowned cooperative, consenting 
to the application of section 4978(a) with respect to such corporation 
or cooperative.
    (b) For purposes of determining whether paragraph (a)(2) of this 
section is satisfied, sales of qualified securities by two or more 
taxpayers may be treated as a single sale if such sales are made as part 
of a single, integrated transaction under a prearranged agreement 
between the taxpayers.
    (c) For purposes of determining whether paragraph (a)(3) of this 
section is satisfied with respect to the prohibition against an accrual 
or allocation of qualified securities, the accrual or allocation of any 
benefits or contributions or other assets that are not attributable to 
qualified securities sold to the employee stock ownership plan or 
eligible worker-owned cooperative in a sale with respect to which an 
election under section 1042(a) is made (including any accrual or 
allocation under any other plan or arrangement maintained by the 
corporation or any member of the controlled group of corporations with 
such corporation for purposes of section 409(l)) must be made without 
regard to the allocation of such qualified securities. Paragraph (a)(3) 
of this section above may be illustrated in part by the following 
example: Individuals A, B, and C own 50, 25, and 25, respectively, of 
the 100 outstanding shares of common stock of Corporation X. Such shares 
constitute qualified securities as defined in Q&A-1 of this section. A 
and B, but not C, are employees of Corporation X. For the benefit of all 
its employees, Corporation X establishes an employee stock ownership 
plan that obtains a loan meeting the exemption requirements of section 
4975(d)(3). The loan proceeds are used by the plan to purchase the 100 
shares of qualified securities from A, B, and C, all of whom elect 
nonrecognition treatment under section 1042(a) with respect to the gain 
realized on their sale of such securities. Under the requirements of 
paragraph (a)(3) of this section, no part of the assets of the plan 
attributable to the 100

[[Page 187]]

shares of qualified securities may accrue under the plan (or under any 
other plan or arrangement maintained by Corporation X) for the benefit 
of A or B or any person who is a member of the family of A or B (as 
determined under section 267(c)(4)). Furthermore, no other assets of the 
plan or assets of the employer may accrue for the benefit of such 
individuals in lieu of the receipt of assets attributable to such 
qualified securities.
    (d) A sale under section 1042(a) shall not include any sale of 
securities by a dealer or underwriter in the ordinary course of its 
trade or business as a dealer or underwriter, whether or not guaranteed.
    Q-3: What is the time and manner for making the election under 
section 1042(a)?
    A-3: (a) The election not to recognize the gain realized upon the 
sale of qualified securities to the extent provided under section 
1042(a) shall be made in a statement of election attached to the 
taxpayer's income tax return filed on or before the due date (including 
extensions of time) for the taxable year in which the sale occurs. If a 
taxpayer does not make a timely election under this section to obtain 
section 1042(a) nonrecognition treatment with respect to the sale of 
qualified securities, it may not subsequently make an election on an 
amended return or otherwise. Also, an election once made is irrevocable.
    (b) The statement of election shall provide that the taxpayer elects 
to treat the sale of securities as a sale of qualified securities under 
section 1042(a), and shall contain the following information:
    (1) A description of the qualified securities sold, including the 
type and number of shares;
    (2) The date of the sale of the qualified securities;
    (3) The adjusted basis of the qualified securities;
    (4) The amount realized upon the sale of the qualified securities;
    (5) The identity of the employee stock ownership plan or eligible 
worker-owned cooperative to which the qualified securities were sold; 
and
    (6) If the sale was part of a single, interrelated transaction under 
a prearranged agreement between taxpayers involving other sales of 
qualified securities, the names and taxpayer identification numbers of 
the other taxpayers under the agreement and the number of shares sold by 
the other taxpayers. See Q&A-2 of this section.

If the taxpayer has purchased qualified replacement property at the time 
of the election, the taxpayer must attach as part of the statement of 
election a statement of purchase describing the qualified replacement 
property, the date of the purchase, and the cost of the property, and 
declaring such property to be the qualified replacement property with 
respect to the sale of qualified securities. Such statement of purchase 
must be notarized by the later of thirty days after the purchase or 
March 6, 1986. In addition, the statement of election must be 
accompanied by the verified written statement of consent required under 
Q&A-2 of this section with respect to the qualified securities sold.
    (c) If the taxpayer has not purchased qualified replacement property 
at the time of the filing of the statement of election, a timely 
election under this Q&A shall not be considered to have been made unless 
the taxpayer attaches the notarized statement of purchase described 
above to the taxpayer's income tax return filed for the taxable year 
following the year for which the election under section 1042(a) was 
made. Such notarized statement of purchase shall be filed with the 
district director or the director of the regional service center with 
whom such election was originally filed, if the return is not filed with 
such director.
    Q-4: What is the basis of qualified replacement property?
    A-4: If a taxpayer makes an election under section 1042(a), the 
basis of the qualified replacement property purchased by the taxpayer 
during the replacement period shall be reduced by an amount equal to the 
amount of gain which was not recognized. If more than one item of 
qualified replacement property is purchased, the basis of each of such 
items shall be reduced by an amount determined by multiplying the total 
gain not recognized by reason of the application of section 1042(a) by a 
fraction, the numerator of which is the

[[Page 188]]

cost of such item of property and the denominator of which is the total 
cost of all such items of property. For the rule regarding the holding 
period of qualified replacement property, see section 1223(13).
    Q-5: What is the statute of limitations for the assessment of a 
deficiency relating to the gain on the sale of qualified securities?
    A-5: (a) If any gain is realized by the taxpayer on the sale of any 
qualified securities and such gain has not been recognized under section 
1042(a) in accordance with the requirements of this section, the 
statutory period provided in section 6501(a) for the assessment of any 
deficiency with respect to such gain shall not expire prior to the 
expiration of 3 years from the date of receipt, by the district director 
or director of regional service center with whom the statement of 
election under 1042(a) was originally filed, of:
    (1) A notarized statement of purchase as described in Q&A-3
    (2) A written statement of the taxpayer's intention not to purchase 
qualified replacement property within the replacement period; or
    (3) A written statement of the taxpayer's failure to purchase 
qualified replacement property within the replacement period.

In those situations when a taxpayer is providing a written statement of 
an intention not to purchase or of a failure to purchase qualified 
replacement property, the statement shall be accompanied, where 
appropriate, by an amended return for the taxable year in which the gain 
from the sale of the qualified securities was realized, in order to 
reflect the inclusion in gross income for that year of gain required to 
be recognized in connection with such sale.
    (b) Any gain from the sale of qualified securities which is required 
to be recognized due to a failure to meet the requirements under section 
1042 shall be included in the gross income for the taxable year in which 
the gain was realized. If any gain from the sale of qualified securities 
is not recognized under section 1042(a) in accordance with the 
requirements of this section, any deficiency attributable to any portion 
of such gain may be assessed at any time before the expiration of the 3-
year period described in this Q&A, notwithstanding the provision of any 
law or rule of law which would otherwise prevent such assessment.
    Q-6: When does section 1042 become effective?
    A-6: Section 1042 applies to sales of qualified securities in 
taxable years of sellers beginning after July 18, 1984.

[T.D. 8073, 51 FR 4333, Feb. 4, 1986]



Sec.  1.1044(a)-1  Time and manner for making election under 
the Omnibus Budget Reconciliation Act of 1993.

    (a) Description. Section 1044(a), as added by section 13114 of the 
Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66, 107 Stat. 
430), generally allows individuals and C corporations that sell publicly 
traded securities after August 9, 1993, to elect not to recognize 
certain gain from the sale if the taxpayer purchases common stock or a 
partnership interest in a specialized small business investment company 
(SSBIC) within the 60-day period beginning on the date the publicly 
traded securities are sold.
    (b) Time and manner for making the election. The election under 
section 1044(a) must be made on or before the due date (including 
extensions) for the income tax return for the year in which the publicly 
traded securities are sold. The election is to be made by reporting the 
entire gain from the sale of publicly traded securities on Schedule D of 
the income tax return in accordance with instructions for Schedule D, 
and by attaching a statement to Schedule D showing--
    (1) How the nonrecognized gain was calculated;
    (2) The SSBIC in which common stock or a partnership interest was 
purchased;
    (3) The date the SSBIC stock or partnership interest was purchased; 
and
    (4) The basis of the SSBIC stock or partnership interest.
    (c) Revocability of election. The election described in this section 
is revocable with the consent of the Commissioner.
    (d) Effective date. The rules set forth in this section are 
effective December 12, 1996.

[T.D. 8688, 61 FR 65322, Dec. 12, 1996]

[[Page 189]]



Sec.  1.1045-1  Application to partnerships.

    (a) Overview of section. A partnership that holds qualified small 
business stock (QSB stock) (as defined in paragraph (g)(1) of this 
section) for more than 6 months, sells such QSB stock, and purchases 
replacement QSB stock (as defined in paragraph (g)(2) of this section) 
may elect to apply section 1045. An eligible partner (as defined in 
paragraph (g)(3) of this section) of a partnership that sells QSB stock, 
may elect to apply section 1045 if the eligible partner purchases 
replacement QSB stock directly or through a purchasing partnership (as 
defined in paragraph (c)(1)(i) of this section). A taxpayer (other than 
a C corporation) that holds QSB stock for more than 6 months, sells such 
QSB stock and purchases replacement QSB stock through a purchasing 
partnership may elect to apply section 1045. A section 1045 election is 
revocable only with the prior written consent of the Commissioner. To 
obtain the Commissioner's prior written consent, the person who made the 
section 1045 election must submit a request for a private letter ruling. 
(For further guidance, see Rev. Proc. 2007-1, 2007-1 CB 1 (or any 
applicable successor) and Sec.  601.601(d)(2)(ii)(b) of this chapter.) 
Paragraph (b) of this section provides rules for partnerships that elect 
to apply section 1045. Paragraph (c) of this section provides rules for 
certain taxpayers other than C corporations and for eligible partners 
that elect to apply section 1045. Paragraph (d) of this section provides 
a limitation on the amount of gain that an eligible partner does not 
recognize under section 1045. Paragraph (e) of this section provides 
rules for partnership distributions of QSB stock to an eligible partner. 
Paragraph (f) of this section provides rules for contributions of QSB 
stock or replacement QSB stock to a partnership. Paragraph (g) of this 
section provides definitions of certain terms used in section 1045 and 
this section. Paragraph (h) of this section provides reporting rules for 
partnerships and partners that elect to apply section 1045. Paragraph 
(i) of this section provides examples illustrating the provisions of 
this section. Paragraph (j) of this section contains the effective/
applicability date.
    (b) Partnership election--(1) Partnership purchase of replacement 
QSB stock. A partnership that holds QSB stock for more than 6 months, 
sells such QSB stock, and purchases replacement QSB stock may elect in 
accordance with paragraph (h) of this section to apply section 1045. If 
the partnership elects to apply section 1045, then, subject to the 
provisions of paragraphs (b)(4) and (d) of this section, each eligible 
partner shall not recognize its distributive share of any partnership 
section 1045 gain (as determined under paragraph (b)(2) of this 
section). For this purpose, partnership section 1045 gain equals the 
partnership's gain from the sale of the QSB stock reduced by the greater 
of--
    (i) The amount of the gain from the sale of the QSB stock that is 
treated as ordinary income; or
    (ii) The excess of the amount realized by the partnership on the 
sale over the total cost of all replacement QSB stock purchased by the 
partnership (excluding the cost of any replacement QSB stock purchased 
by the partnership that is otherwise taken into account under section 
1045).
    (2) Partner's distributive share of partnership section 1045 gain. A 
partner's distributive share of partnership section 1045 gain shall be 
in the same proportion as the partner's distributive share of the 
partnership's gain from the sale of the QSB stock. For this purpose, the 
partnership's gain from the sale of QSB stock and the partner's 
distributive share of that gain are determined without regard to basis 
adjustments under section 743(b) and paragraph (b)(3)(ii) of this 
section.
    (3) Basis adjustments--(i) Partner's interest in a partnership. The 
adjusted basis of an eligible partner's interest in a partnership shall 
not be increased under section 705(a)(1) by gain from a partnership's 
sale of QSB stock that is not recognized by the partner as the result of 
a partnership election under paragraph (b)(1) of this section.
    (ii) Partnership's replacement QSB stock--(A) Rule. The basis of a 
partnership's replacement QSB stock is reduced (in the order acquired) 
by the amount of gain from the partnership's sale of QSB stock that is 
not recognized by an eligible partner as a result

[[Page 190]]

of the partnership's election under section 1045. The basis adjustment 
with respect to any amount described in this paragraph (b)(3)(ii) 
constitutes an adjustment to the basis of the partnership's replacement 
QSB stock with respect to that partner only. The effect of such a basis 
adjustment is determined under the principles of Sec.  1.743-1(g), (h), 
and (j) except as modified in this paragraph (b)(3)(ii)(A). If a 
partnership sells QSB stock with respect to which a basis adjustment has 
been made under this paragraph (b)(3)(ii), and the partnership makes an 
election under paragraph (b)(1) of this section with respect to the sale 
and purchases replacement QSB stock, the basis adjustment shall carry 
over to the replacement QSB stock except to the extent otherwise 
provided in this paragraph (b)(3)(ii). The basis adjustment that carries 
over to the replacement QSB stock shall be reduced (but not below zero) 
by the eligible partner's distributive share of the excess, if any, of 
the greater of the amount determined under paragraph (b)(1)(i) or (ii) 
of this section from the sale of the QSB stock, over the partnership's 
gain from the sale of the QSB stock (determined without regard to basis 
adjustments under section 743 or paragraph (b)(3)(ii) of this section). 
The excess amount that reduces the basis adjustment shall be accounted 
for as gain in accordance with Sec.  1.743-1(j)(3). See Example 5 of 
paragraph (i) of this section. For purposes of this paragraph 
(b)(3)(ii), a partnership must presume that a partner did not recognize 
that partner's distributive share of the partnership section 1045 gain 
as a result of the partnership's section 1045 election unless the 
partner notifies the partnership to the contrary as described in 
paragraph (b)(5)(ii) of this section. However, if a partnership knows 
that a particular partner is classified, for Federal tax purposes, as a 
C corporation, then the partnership may presume that the partner did not 
defer recognition of its distributive share of the partnership section 
1045 gain, even in the absence of a notification by the partner. If a 
partnership makes an election under section 1045, but an eligible 
partner opts out of the election under paragraph (b)(4) of this section 
and provides to the partnership the notification required under 
paragraph (b)(5)(ii) of this section, no basis adjustments under this 
paragraph (b)(3)(ii) are required with respect to that partner as a 
result of the section 1045 election by the partnership.
    (B) Tiered-partnership rule. If a partnership (upper-tier 
partnership) holds an interest in another partnership (lower-tier 
partnership) that makes an election under section 1045, the portion of 
the lower-tier partnership's basis adjustment as provided in paragraph 
(b)(3)(ii)(A) of this section in the replacement QSB stock must be 
segregated and allocated to the upper-tier partnership and any eligible 
partner as defined in paragraph (g)(3)(iii) of this section. Similarly, 
that portion of the basis of the upper-tier partnership's interest in 
the lower-tier partnership attributable to the basis adjustment as 
provided in paragraph (b)(3)(ii)(A) of this section in the lower-tier 
partnership's replacement QSB stock must be segregated and allocated 
solely to any eligible partner as defined in paragraph (g)(2)(iii) of 
this section.
    (C) Statement of adjustments. A partnership that must adjust the 
basis of replacement QSB stock under this paragraph (b) must attach a 
statement to the partnership return for the taxable year in which the 
partnership purchases replacement QSB stock setting forth the 
computation of the adjustment, the replacement QSB stock to which the 
adjustment has been made, the date(s) on which such QSB stock was 
acquired by the partnership, and the amount of the adjustment that is 
allocated to each partner.
    (4) Eligible partners may opt out of partnership's section 1045 
election. An eligible partner may opt out of the partnership's section 
1045 election with respect to QSB stock either by recognizing the 
partner's distributive share of the partnership section 1045 gain, or by 
making a partner section 1045 election under paragraph (c) of this 
section with respect to the partner's distributive share of the 
partnership section 1045 gain. See paragraph (b)(5)(ii) of this section 
for applicable notification requirements. Opting out of a partnership's 
section 1045 election under this paragraph (b)(4) does not constitute a

[[Page 191]]

revocation of the partnership's election, and such election shall 
continue to apply to other partners of the partnership.
    (5) Notice requirements--(i) Partnership notification to partners. A 
partnership that makes an election under paragraph (b)(1) of this 
section must notify all of its partners of the election and the purchase 
of replacement QSB stock, in accordance with the applicable forms and 
instructions, and separately state each partner's distributive share of 
partnership section 1045 gain from the sale of QSB stock under section 
702. Each partner shall determine whether the partner is an eligible 
partner within the meaning of paragraph (g)(3) of this section and 
report the partner's distributive share of partnership section 1045 gain 
from the partnership's sale of QSB stock, including gain not recognized, 
in accordance with the applicable forms and instructions.
    (ii) Partner notification to partnership. Any partner that must 
recognize all or part of the partner's distributive share of partnership 
section 1045 gain must notify the partnership, in writing, of the amount 
of partnership section 1045 gain that is recognized by the partner. 
Similarly, an eligible partner that opts out of a partnership's section 
1045 election under paragraph (b)(4) of this section must notify the 
partnership, in writing, that the partner is opting out of the 
partnership's section 1045 election.
    (c) Partner election--(1) In general--(i) Rule. An eligible partner 
of a partnership that sells QSB stock (selling partnership) may elect in 
accordance with paragraph (h) of this section to apply section 1045 if 
replacement QSB stock is purchased by the eligible partner. An eligible 
partner of a selling partnership may elect in accordance with paragraph 
(h) of this section to apply section 1045 if replacement QSB stock is 
purchased by a partnership in which the taxpayer is a partner (directly 
or through an upper-tier partnership) on the date on which the 
partnership acquires the replacement QSB stock (purchasing partnership). 
A taxpayer other than a C corporation that sells QSB stock held for more 
than 6 months at the time of the sale may elect in accordance with 
paragraph (h) of this section to apply section 1045 if replacement QSB 
stock is purchased by a purchasing partnership (including a selling 
partnership).
    (ii) Partner purchase of replacement QSB stock. Subject to paragraph 
(d) of this section, an eligible partner of a selling partnership that 
elects to apply section 1045 with respect to the eligible partner's 
purchase of replacement QSB stock must recognize its distributive share 
of gain from the sale of QSB stock by the selling partnership only to 
the extent of the greater of--
    (A) The amount of the eligible partner's distributive share of the 
selling partnership's gain from the sale of the QSB stock that is 
treated as ordinary income; or
    (B) The excess of the eligible partner's share of the selling 
partnership's amount realized (as determined under paragraph (c)(2) of 
this section) on the sale by the selling partnership of the QSB stock 
(excluding the cost of any replacement QSB stock purchased by the 
selling partnership) over the cost of any replacement QSB stock 
purchased by the eligible partner (excluding the cost of any replacement 
QSB stock that is otherwise taken into account under section 1045).
    (iii) Partnership purchase of replacement QSB stock--(A) Partner of 
a selling partnership. Subject to paragraph (d) of this section, an 
eligible partner that treats its interest in QSB stock purchased by a 
purchasing partnership as a purchase of replacement QSB stock by the 
eligible partner and that elects to apply section 1045 with respect to 
such purchase must recognize its total gain (the eligible partner's 
distributive share of gain from the selling partnership's sale of QSB 
stock and any gain taken into account under paragraph (c)(5) of this 
section from the sale of replacement QSB stock) only to the extent of 
the greater of--
    (1) The amount of the eligible partner's distributive share of the 
selling partnership's gain from the sale of the QSB stock that is 
treated as ordinary income; or
    (2) The excess of the eligible partner's share of the selling 
partnership's amount realized (as determined under paragraph (c)(2) of 
this section) on the sale by the selling partnership of the

[[Page 192]]

QSB stock (excluding the cost of any replacement QSB stock purchased by 
the selling partnership) over the eligible partner's share of the 
purchasing partnership's cost of the replacement QSB stock, as 
determined under paragraph (c)(3) of this section (excluding the cost of 
any QSB stock that is otherwise taken into account under section 1045).
    (B) Taxpayer other than a C corporation. Subject to paragraph (d) of 
this section, a taxpayer other than a C corporation that treats its 
interest in QSB stock purchased by a purchasing partnership with respect 
to which the taxpayer is a partner as a purchase of replacement QSB 
stock by the taxpayer must recognize its gain from the sale of the QSB 
stock only to the extent of the greater of--
    (1) The amount of gain from the sale of the QSB stock that is 
treated as ordinary income; or
    (2) The excess of the amount realized by the taxpayer on the sale of 
the QSB stock over the partner's share of the purchasing partnership's 
cost of the replacement QSB stock, as determined under paragraph (c)(3) 
of this section (excluding the cost of any QSB stock that is otherwise 
taken into account under section 1045).
    (2) Eligible partner's share of amount realized by partnership--(i) 
General rule. The eligible partner's share of the amount realized by the 
selling partnership is the amount realized by the partnership on the 
sale of the QSB stock (excluding the cost of any replacement QSB stock 
otherwise taken into account under section 1045) multiplied by the 
following fraction--
    (A) The numerator of which is the eligible partner's distributive 
share of the partnership's realized gain from the sale of the QSB stock; 
and
    (B) The denominator of which is the partnership's realized gain on 
the sale of the QSB stock.
    (ii) General rule modified for determining eligible partner's share 
of amount realized by purchasing partnership upon a sale of replacement 
QSB stock in certain situations--(A) No gain realized or loss realized 
on sale of replacement QSB stock. If a purchasing partnership does not 
realize a gain or realizes a loss from the sale of replacement QSB stock 
for which an election under this section was made for purposes of 
applying paragraph (c)(1)(iii)(A) of this section, the eligible 
partner's share of the amount realized is--
    (1) The greater of--
    (i) The amount determined in paragraph (c)(2)(i) of this section 
from a prior sale of QSB stock (that is not otherwise taken into account 
under paragraph (c)(2) of this section) in which the eligible partner 
had a distributive share of gain allocated to the eligible partner that 
was not recognized under paragraph (c)(1)(iii)(A) of this section; or
    (ii) The amount realized by a taxpayer other than a C corporation 
from a prior sale of QSB stock (that is not otherwise taken into account 
under paragraph (c)(2) of this section) in which the taxpayer realized 
gain that was not recognized under paragraph (c)(1)(iii)(B) of this 
section; less
    (2) The eligible partner's distributive share of any loss recognized 
on the sale of replacement QSB stock, if applicable.
    (B) Eligible partner's interest in purchasing partnership is reduced 
and gain realized on sale of replacement QSB stock. If an eligible 
partner's interest in a purchasing partnership is reduced subsequent to 
the sale of QSB stock and the purchasing partnership realizes a gain 
from the sale of the replacement QSB stock, the eligible partner's share 
of the amount realized upon a sale of replacement QSB stock must be 
determined under paragraph (c)(2)(i) of this section based on the 
distributive share of the partnership's realized gain that would have 
been allocated to the eligible partner if the eligible partner's 
interest in the partnership had not been reduced.
    (iii) Eligible partner's share of the amount realized. For purposes 
of determining the eligible partner's share of the amount realized by 
the partnership, the partnership's realized gain from the sale of QSB 
stock and the eligible partner's distributive share of that gain are 
determined without regard to basis adjustments under section 743(b) and 
paragraphs (b)(3)(ii) and (c) of this section.

[[Page 193]]

    (3) Partner's share of the cost of QSB stock purchased by a 
purchasing partnership. The partner's share of the cost (adjusted basis) 
of replacement QSB stock purchased by a purchasing partnership is the 
percentage of the partnership's future income and gain, if any, that is 
reasonably expected to be allocated to the partner (determined without 
regard to any adjustment under section 1045) with respect to the 
replacement QSB stock that was purchased by the partnership, multiplied 
by the cost of that replacement QSB stock. The assumptions made by a 
partnership in determining the reasonably expected allocation of income 
and gain must be consistent for each partner. For example, a partnership 
may not treat the same item of income or gain as being reasonably 
expected to be allocated to more than one partner.
    (4) Basis adjustments--(i) Eligible partner's interest in selling 
partnership. Under section 705(a)(1), the adjusted basis of an eligible 
partner's interest in a selling partnership that sells QSB stock is 
increased by the partner's distributive share of gain without regard to 
paragraph (c)(1) of this section. However, if the selling partnership is 
also a purchasing partnership, the adjusted basis of an eligible 
partner's interest in a partnership that sells QSB stock may be reduced 
under paragraph (c)(4)(iii) of this section.
    (ii) Replacement QSB stock. A partner's basis in any replacement QSB 
stock that is purchased by the partner, as well as the adjusted basis of 
any replacement QSB stock that is purchased by a purchasing partnership 
and that is treated as the partner's replacement QSB stock must be 
reduced (in the order replacement QSB stock is acquired by the partner 
and purchasing partnership, as applicable) by the partner's distributive 
share of the gain on the sale of the selling partnership's QSB stock 
that is not recognized by the partner under paragraph (c)(1) of this 
section, or by the gain on a sale of QSB stock by the partner that is 
not recognized by the partner under section 1045, as applicable. If 
replacement QSB stock is purchased by the purchasing partnership, the 
purchasing partnership shall maintain its adjusted basis in the 
replacement QSB stock without regard to any basis adjustments required 
by this paragraph (c)(4)(ii). The eligible partner, however, shall in 
computing its distributive share of income, gain, loss and deduction 
from the purchasing partnership with respect to the replacement QSB 
stock take into account the variation between the adjusted basis in the 
QSB stock as determined under this paragraph (c)(4)(ii) and the adjusted 
basis determined without regard to this paragraph (c)(4)(ii). A partner 
must retain records setting forth the computation of this basis 
adjustment, the replacement QSB stock to which the adjustment has been 
made, and the date(s) on which such stock was acquired. See Examples 7 
and 8 of paragraph (i) of this section.
    (iii) Partner's basis in purchasing partnership interest. A partner 
that treats the partner's interest in QSB stock purchased by a 
purchasing partnership as the partner's replacement QSB stock must 
reduce (in the order replacement QSB stock is acquired) the adjusted 
basis of the partner's interest in the purchasing partnership by the 
partner's distributive share of the gain on the sale of the selling 
partnership's QSB stock that is not recognized by the partner pursuant 
to paragraph (c)(1) of this section, or by the gain on a sale of QSB 
stock by the partner that is not recognized by the partner under section 
1045, as applicable. Similarly, a partner of an upper-tier partnership 
that treats the partner's interest in QSB stock purchased by a lower-
tier purchasing partnership as the partner's replacement QSB stock must 
reduce (in the order replacement QSB stock is acquired) the adjusted 
basis of the partner's interest in the upper-tier partnership by the 
partner's distributive share of the gain on the sale of the selling 
partnership's QSB stock that is not recognized by the partner pursuant 
to paragraph (c)(1) of this section, or by the gain on a sale of QSB 
stock by the partner that is not recognized by the partner under section 
1045, as applicable.

[[Page 194]]

    (iv) Increase in basis on sale of QSB stock by purchasing 
partnership. A partner that recognizes gain under paragraph (c)(5) of 
this section must increase the adjusted basis of the partner's interest 
in the purchasing partnership under section 705(a)(1) by the amount of 
the gain recognized by that partner. Similarly, a partner in an upper-
tier partnership that recognizes gain under paragraph (c)(5) of this 
section must increase the adjusted basis of the partner's interest in 
the upper-tier partnership under section 705(a)(1) by the amount of the 
gain recognized by that partner.
    (5) Partner recognition of gain. At the time that either the partner 
or the purchasing partnership (whichever applies) sells or exchanges 
replacement QSB stock, the amount recognized by the partner is 
determined by taking into account the basis adjustments described in 
paragraph (c)(4)(ii) of this section. Similarly, a partner of an upper-
tier partnership that owns an interest in a lower-tier partnership that 
holds replacement QSB stock must take into account the basis adjustments 
described in paragraph (c)(4)(ii) of this section in determining the 
amount recognized by the partner on a sale of the interest in the lower-
tier partnership by the upper-tier partnership or the partner's 
distributive share of gain from the upper-tier partnership. See 
paragraph (e)(4) of this section for rules applicable to certain 
distributions of replacement QSB stock.
    (d) Nonrecognition limitation--(1) In general. For purposes of this 
section, the amount of gain that an eligible partner does not recognize 
under paragraphs (b)(1) and (c)(1) of this section cannot exceed the 
nonrecognition limitation. Except as otherwise provided in paragraph 
(d)(2) of this section, the nonrecognition limitation is equal to the 
product of--
    (i) The partnership's realized gain from the sale of the QSB stock, 
determined without regard to any basis adjustment under section 734(b) 
or section 743(b) (other than basis adjustments described in paragraph 
(b)(3)(ii) of this section); and
    (ii) The eligible partner's smallest percentage interest in 
partnership capital as determined in paragraph (d)(2) of this section. 
See Example 9 of paragraph (i) of this section.
    (2) Eligible partner's smallest percentage interest in partnership 
capital. An eligible partner's smallest percentage interest in 
partnership capital is the eligible partner's percentage share of 
capital determined at the time of the acquisition of the QSB stock as 
adjusted prior to the time the QSB stock is sold to reflect any 
reduction in the capital of the eligible partner including a reduction 
as a result of a disproportionate capital contribution by other 
partners, a disproportionate capital distribution to the eligible 
partner or the transfer of an interest by the eligible partner, but 
excluding income and loss allocations.
    (3) Special rule for tiered partnerships. For purposes of paragraph 
(d)(1)(ii) of this section, if an eligible partner is treated as owning 
an interest in a lower-tier purchasing partnership through an upper-tier 
partnership, the eligible partner's percentage interest in the 
purchasing partnership shall be proportionately adjusted to reflect the 
eligible partner's percentage interest in the upper-tier partnership.
    (e) Partnership distribution of QSB stock to a partner--(1) In 
general. Subject to paragraphs (e)(2) and (3) of this section, in the 
case of a partnership distribution of QSB stock to a partner, the 
partner shall be treated for purposes of this section as--
    (i) Having acquired such stock in the same manner as the 
partnership; and
    (ii) Having held such stock during any continuous period immediately 
preceding the distribution during which it was held by the partnership. 
See Examples 10 and 11 of paragraph (i) of this section.
    (2) Eligibility under section 1202(c). Paragraph (e)(1) of this 
section does not apply unless all eligibility requirements with respect 
to QSB stock as defined in section 1202(c) are met by the distributing 
partnership with respect to its investment in QSB stock.
    (3) Distribution nonrecognition limitation--(i) Generally. The 
amount of gain that an eligible partner does not recognize under this 
section on the sale of QSB stock that was distributed by the partnership 
to the partner cannot exceed the distribution nonrecognition

[[Page 195]]

limitation. For this purpose, the distribution nonrecognition limitation 
is--
    (A) The partner's section 1045 amount realized (determined under 
paragraph (e)(3)(ii) of this section); reduced by
    (B) The partner's section 1045 adjusted basis (determined under 
paragraph (e)(3)(iii) of this section).
    (ii) Section 1045 amount realized--(A) QSB stock received in 
liquidation of partner's interest and in certain nonliquidating 
distributions. If a partner receives QSB stock from the partnership in a 
distribution in liquidation of the partner's interest in the partnership 
or as part of a series of related distributions by the partnership in 
which the partnership distributes all of the partnership's QSB stock of 
a particular type, then the partner's section 1045 amount realized is 
the partner's amount realized from the sale of the distributed QSB 
stock, multiplied by a fraction--
    (1) The numerator of which is the partner's smallest percentage 
interest in partnership capital determined under paragraph (e)(3)(ii)(B) 
of this section; and
    (2) The denominator of which is the partner's percentage interest in 
that type of QSB stock immediately after the distribution (determined 
under paragraph (e)(3)(iv) of this section).
    (B) Partner's smallest percentage interest in partnership capital. A 
partner's smallest percentage interest in partnership capital is the 
partner's percentage share of capital determined at the time of the 
acquisition of the QSB stock as adjusted prior to the time the QSB stock 
is distributed to the partner to reflect any reduction in the capital of 
the partner including a reduction as a result of a disproportionate 
capital contribution by other partners, a disproportionate capital 
distribution to the partner, or the transfer of a capital interest by 
the partner, but excluding income and loss allocations.
    (C) QSB stock received in other distributions. If a partner receives 
QSB stock in a distribution from the partnership that is not described 
in paragraph (e)(3)(ii)(A) of this section, the partner's section 1045 
amount realized is the partner's amount realized from the sale of the 
distributed QSB stock multiplied by the partner's smallest percentage 
interest in partnership capital determined under paragraph (e)(3)(ii)(B) 
of this section.
    (iii) Section 1045 adjusted basis--(A) QSB stock received in 
liquidation of partner's interest and in certain nonliquidating 
distributions. If a partner receives QSB stock from the partnership in a 
distribution in liquidation of the partner's interest in the partnership 
or as part of a series of related distributions by the partnership in 
which the partnership distributes all of the partnership's QSB stock of 
a particular type, then the partner's section 1045 adjusted basis is the 
product of--
    (1) The partnership's basis in all of the QSB stock of the type 
distributed (without regard to basis adjustments under section 734(b) or 
section 743(b), other than basis adjustments described in paragraphs 
(b)(3)(ii) and (c)(4)(ii) of this section);
    (2) The partner's smallest percentage interest in partnership 
capital determined under paragraph (e)(3)(ii)(B) of this section; and
    (3) The proportion of the distributed QSB stock that was sold by the 
partner.
    (B) QSB stock received in other distributions. If a partner receives 
QSB stock in a distribution from the partnership that is not described 
in paragraph (e)(3)(iii)(A) of this section, the partner's section 1045 
adjusted basis is the product of--
    (1) The partnership's basis in the QSB stock sold by the partner 
(without regard to basis adjustments under section 734(b) or section 
743(b), other than basis adjustments described in paragraphs (b)(3)(ii) 
and (c)(4)(ii) of this section); and
    (2) The partner's smallest percentage interest in partnership 
capital determined under paragraph (e)(3)(ii)(B) of this section.
    (iv) Partner's percentage interest in distributed QSB stock. For 
purposes of this paragraph (e)(3), a partner's percentage interest in a 
type of QSB stock immediately after a partnership distribution is the 
value (as of the date of the distribution) of the QSB stock distributed 
to the partner divided by the value (as of the date of the distribution) 
of all of

[[Page 196]]

that type of QSB stock that was acquired by the partnership.
    (v) QSB stock of the same type. For purposes of this paragraph 
(e)(3), QSB stock will be of the same type as the distributed QSB stock 
if it has the same issuer and the same rights and preferences as the 
distributed QSB stock and was acquired by the partnership at original 
issue.
    (4) Distribution of replacement QSB stock to a partner that reduces 
another partner's interest in the replacement QSB stock. For purposes of 
this section, a partner must recognize gain upon a distribution of 
replacement QSB stock to another partner that reduces the partner's 
share of the replacement QSB stock held by a partnership. The amount of 
gain that the partner must recognize is determined based on the amount 
of gain that the partner would recognize upon a sale of the distributed 
replacement QSB stock for its fair market value on the date of the 
distribution but not to exceed the amount that was previously not 
recognized by the partner under section 1045 with respect to the 
distributed replacement QSB stock. Any gain recognized by a partner 
whose interest is reduced must be taken into account in determining the 
adjusted basis of the partner's interest in the partnership and also 
taken into account in determining the partnership's adjusted basis in 
the QSB stock distributed to another partner under paragraph (e)(3) of 
this section.
    (f) Contribution of QSB stock or replacement QSB stock to a 
partnership. Section 721 applies to a contribution of QSB stock to a 
partnership. Except as provided in section 721(b), any gain that was not 
recognized by the taxpayer under section 1045 is not recognized when the 
taxpayer contributes QSB stock to a partnership in exchange for a 
partnership interest. Stock that is contributed to a partnership is not 
QSB stock in the hands of the partnership. See Example 12 of paragraph 
(i) of this section.
    (g) Definitions. For purposes of section 1045 and this section, the 
following terms are defined as follows:
    (1) Qualified small business stock. The term qualified small 
business stock (QSB stock) has the meaning provided in section 1202(c). 
The term ``QSB stock'' does not include an interest in a partnership 
that purchases or holds QSB stock. See Example 1 of paragraph (i) of 
this section.
    (2) Replacement QSB stock. The term replacement QSB stock is any QSB 
stock purchased within 60 days beginning on the date of a sale of QSB 
stock.
    (3) Eligible partner--(i) In general. Except as provided in 
paragraphs (e)(1), (g)(3)(ii), (iii) and (iv) of this section, an 
eligible partner with respect to QSB stock is a taxpayer other than a C 
corporation that holds an interest in a partnership on the date the 
partnership acquires the QSB stock and at all times thereafter for more 
than 6 months until the partnership sells or distributes the QSB stock.
    (ii) Acquisition by gift or at death. For purposes of paragraph 
(g)(3)(i) of this section, a taxpayer who acquires from a partner (other 
than a C corporation) by gift or at death an interest in a partnership 
that holds QSB stock is treated as having held the acquired interest in 
the partnership during the period the partner (other than a C 
corporation) held the interest in the partnership.
    (iii) Tiered partnership. For purposes of paragraph (g)(3)(i) of 
this section, if a partnership (upper-tier partnership) holds an 
interest in another partnership (lower-tier partnership) that holds QSB 
stock, then the upper-tier partnership's ownership of the lower-tier 
partnership is disregarded and each partner of the upper-tier 
partnership is treated as owning the interest in the lower-tier 
partnership directly. The partner of the upper-tier partnership is 
treated as owning the interest in the lower-tier partnership during the 
period in which both--
    (A) The partner of the upper-tier partnership held an interest in 
the upper-tier partnership; and
    (B) The upper-tier partnership held an interest in the lower-tier 
partnership. See Examples 3 and 4 of paragraph (i) of this section.
    (iv) Multiple tiers of partnerships. Principles similar to those 
described in paragraph (g)(3)(iii) of this section apply where a 
taxpayer holds an interest in a lower-tier partnership through multiple 
tiers of partnerships.

[[Page 197]]

    (4) Month(s). For purposes of this section, the term month(s) means 
a period commencing on the same numerical day of any calendar month as 
the day on which the QSB stock is sold and ending with the close of the 
day preceding the numerically corresponding day of the succeeding 
calendar month or, if there is no corresponding day, with the last day 
of the succeeding calendar month.
    (h) Reporting and election rules--(1) Time and manner of making 
election. A partnership making an election under section 1045 (as 
described under paragraph (b)(1) of this section) must do so on the 
partnership's timely filed (including extensions) Federal income tax 
return for the taxable year during which the sale of QSB stock occurs. A 
partner making an election under section 1045 (as described under 
paragraph (c)(1) of this section) must do so on the partner's timely 
filed (including extensions) Federal income tax return for the taxable 
year during which the partner's distributive share of the partnership's 
gain from the sale of the QSB stock is taken into account by such 
partner under section 706. In addition, a partnership or partner making 
an election under section 1045 must make such election in accordance 
with the applicable forms and instructions.
    (2) Purchases, distributions, and sales of QSB stock or replacement 
QSB stock by partnerships. A partnership that purchases, distributes to 
a partner, or sells or exchanges QSB stock or replacement QSB stock must 
provide information to the Commissioner and to the partnership's 
partners to the extent provided by the applicable forms and 
instructions.
    (3) Nonrecognition of gain by eligible partners. An eligible partner 
that does not recognize gain under section 1045 must provide information 
to the Commissioner to the extent provided by the applicable forms and 
instructions.
    (i) Examples. The provisions of this section are illustrated by the 
following examples:

    Example 1. Sale of a partnership interest. On January 1, 2008, A, an 
individual, X, a C corporation, and Y, a C corporation, form PRS, a 
partnership. A, X, and Y each contribute $250 to PRS and agree to share 
all partnership items equally. PRS purchases QSB stock for $750 on 
February 1, 2008. On November 4, 2008, A sells A's interest in PRS for 
$500, realizing $250 of capital gain. Under paragraph (g)(1) of this 
section, an interest in a partnership that holds QSB stock is not 
treated as QSB stock. Therefore, the sale of an interest in a 
partnership that holds QSB stock is not treated as a sale of QSB stock, 
and A may not elect to apply section 1045 with respect to A's $250 gain 
from the sale of A's interest in PRS.
    Example 2. Election by partner; replacement by partnership. (i) 
Assume the same facts as in Example 1, except that A does not sell A's 
interest in PRS. Instead, PRS sells the QSB stock (QSB1 stock) for 
$1,500 on November 3, 2008. PRS realizes $750 of gain from the sale of 
the QSB1 stock (none of which is treated as ordinary income) and 
allocates $250 of gain to each of A, X, and Y. PRS does not make a 
section 1045 election. On November 30, 2008, A contributes $500 to ABC, 
a partnership, in exchange for a 10 percent interest in ABC. ABC then 
purchases QSB stock (QSB2 stock) for $5,000 on December 1, 2008. ABC has 
no other assets. A makes an election under paragraph (c)(1) of this 
section and treats A's percentage interest in ABC's QSB2 stock as 
replacement QSB stock under paragraph (c)(1)(iii) of this section with 
respect to the $250 gain PRS allocated to A. Under paragraph (c)(3) of 
this section, A's share of the cost of QSB2 stock purchased by ABC is 
$500 (A's reasonably expected income and gain with respect to QSB2 
stock, or 10 percent multiplied by the cost of the QSB2 stock, $5,000). 
Under paragraph (c)(1)(iii) of this section, A will not recognize the 
$250 gain PRS allocated to A, because A's share of the amount realized 
by PRS, $500 (the total amount realized by the partnership on the sale 
of the QSB1 stock ($1,500) multiplied by A's share of the gain from the 
sale of the QSB1 stock ($250) over the total gain realized by the 
partnership on the sale of the QSB1 stock ($750)), does not exceed A's 
share of ABC's cost of the QSB2 stock acquired by ABC, $500. Under 
paragraph (c)(4)(ii) of this section, A must reduce A's share of ABC's 
basis in the QSB2 stock by $250. Under paragraph (c)(4)(iii) of this 
section, A must reduce A's basis in A's interest in ABC by $250. Under 
paragraph (c)(4)(i) of this section, A's basis in A's interest in PRS is 
increased by $250.
    (ii) Assume the same facts as in paragraph (i) of this Example 2, 
except that A does not contribute $500 to ABC in exchange for a 
partnership interest. Instead, on November 30, 2008, EFG, a partnership 
in which A has an existing 10 percent partnership interest, purchases 
QSB stock for $5,000. Under paragraph (c)(1) of this section, A may 
treat A's 10 percent interest in EFG's QSB stock as replacement QSB 
stock with respect to the $250 of gain PRS allocated to A.

[[Page 198]]

    (iii) Assume the same facts as in paragraph (i) of this Example 2, 
except that ABC owns QSB stock that ABC purchased on November 10, 2008, 
and ABC does not purchase QSB stock on December 1, 2008. Under paragraph 
(c)(1) of this section, ABC is not a purchasing partnership with respect 
to A for the QSB stock ABC purchased on November 10, 2008. A may not 
treat A's percentage interest in ABC's QSB stock as replacement QSB 
stock to defer the $250 gain PRS allocated to A, because A acquired its 
interest in ABC after ABC acquired the QSB stock.
    (iv) Assume the same facts as in paragraph (i) of this Example 2, 
except that ABC sells QSB2 stock on July 30, 2009, for $5,000. ABC 
realizes no gain or loss on the sale of QSB2 stock. A desires to 
continue to rollover the $250 gain from the sale of QSB1 stock. Under 
paragraph (c)(2)(ii)(A) of this section, A's share of the amount 
realized is $500, which was A's share of the amount realized on the 
prior sale of QSB1 stock. Accordingly, A must elect to apply section 
1045 and purchase $500 of replacement QSB stock either directly or 
through a purchasing partnership to continue to defer the $250 gain from 
the sale of QSB1 stock.
    Example 3. Tiered partnerships; partnership election. (i) On January 
1, 2008, A, an individual, and B, an individual, each contribute $500 to 
UTP (upper-tier partnership) for equal partnership interests. On 
February 1, 2008, UTP and C, an individual, each contribute $1,000 to 
LTP (lower-tier partnership) for equal partnership interests. On March 
1, 2008, LTP purchases QSB stock for $500. On April 1, 2008, D, an 
individual, joins UTP by contributing $500 to UTP for a \1/3\ interest 
in UTP. On December 1, 2008, LTP sells the QSB stock for $2,000. Under 
paragraph (g)(3)(iii) of this section, A, B, and D are treated as owning 
an interest in LTP during the period in which each of the partners held 
an interest in UTP and UTP held an interest in LTP. Therefore, under 
paragraphs (g)(3)(i) and (iii) of this section, A and B are eligible 
partners, and D and UTP are not eligible partners with respect to the 
QSB stock sold by LTP. Under paragraph (g)(3)(i) of this section, C is 
also an eligible partner with respect to the QSB stock sold by LTP.
    (ii) Assume the same facts as in paragraph (i) of this Example 3. 
LTP realizes a gain of $1,500 on the December 1, 2008, sale of QSB 
stock. LTP allocates $750 of gain to each of UTP and C. UTP, in turn, 
allocates $250 (of the $750 of gain allocated to UTP) to each of A, B, 
and D. LTP makes a section 1045 election. On January 1, 2009, LTP 
purchases replacement QSB stock for $2,000. Under paragraph (b)(5)(ii) 
of this section, D notifies UTP that it recognizes $250 of gain and UTP 
notifies LTP. Because A, B, and C are eligible partners with respect to 
the QSB stock sold by LTP, A and B may each defer $250 of LTP's section 
1045 gain and C may defer $750 of LTP's section 1045 gain. LTP must 
decrease its basis in the replacement QSB stock by the $750 of 
partnership section 1045 gain that was allocated to C and by $500 of the 
partnership section 1045 gain that was allocated to UTP. These basis 
reductions are with respect to UTP (A and B) and C only. Under paragraph 
(b)(3)(ii)(B) of this section, the basis of UTP's interest in LTP 
attributable to the LTP's replacement QSB stock must be segregated and 
allocated to A and B. In addition, A and B each have a $250 negative 
basis adjustment in their respective interests in UTP. If UTP sells its 
interest in LTP for $1,250, A and B would each recognize $250 of gain 
from the sale of the LTP interest. D would not recognize any gain or 
loss from the sale.
    Example 4. Tiered partnerships; partner election. (i) On January 1, 
2008, A, an individual, and X, a C corporation, form UTP, a partnership. 
A and X each contribute $250 to UTP and agree to share all partnership 
items equally. Also, on January 1, 2008, UTP and Y, a C corporation, 
form LTP, a partnership. UTP and Y contribute $500 and $250, 
respectively, to LTP. UTP and Y agree to share all partnership items 
equally. LTP purchases QSB stock for $750 on February 1, 2008. On 
November 3, 2008, LTP sells the QSB stock for $1,500. LTP realizes $750 
of gain from the sale of the QSB stock (none of which is treated as 
ordinary income) and allocates $250 gain to Y and $500 gain to UTP. Of 
the $500 gain allocated to UTP from the sale of QSB stock, $250 is 
allocated to A and $250 is allocated to X. LTP purchases replacement QSB 
stock (replacement QSB1 stock) for $1,350 on December 15, 2008. LTP does 
not make an election under section 1045. Under the rules provided in 
paragraph (c) of this section, A makes an election under section 1045 on 
its timely filed return for the taxable year for which the distributive 
share of gain from the sale of QSB stock is taken into account by A 
under section 706. Under paragraph (c)(1)(iii) of this section, A treats 
A's interest in replacement QSB1 stock as replacement stock with respect 
to A's distributive share of LTP's section 1045 gain. On March 30, 2009, 
LTP sells replacement QSB1 stock for $1,650. LTP realizes $300 of gain 
from the sale of replacement QSB1 stock (none of which is treated as 
ordinary income) and allocates $100 to Y and $200 to UTP.
    (ii) Under paragraph (c)(1)(iii) of this section, A must recognize 
its distributive share of gain from LTP's sale of QSB stock ($250) only 
to the extent of the greater of A's distributive share of LTP's gain 
from the sale of QSB stock that is treated as ordinary income ($0) or 
the amount by which A's share of the amount realized by LTP's sale of 
QSB stock exceeds A's share of LTP's cost of the replacement QSB1 stock, 
$50 (\1/3\ of $1,500, or $500, minus \1/3\ of $1,350, or $450). Because 
Y is

[[Page 199]]

not an eligible partner of LTP under paragraph (g)(3) of this section, Y 
must recognize its $250 distributive share of partnership gain from the 
sale of the QSB stock. Also, X is not an eligible partner under 
paragraph (g)(3) of this section, and it must recognize its $250 
distributive share of gain from UTP attributable to UTP's distributive 
share of $500 of LTP's gain from the sale of QSB stock.
    (iii) Under section 705(a)(1), the adjusted basis of Y's interest in 
LTP is increased by $250, and the adjusted basis of UTP's interest in 
LTP is increased by $500. Under section 705(a)(1), the adjusted basis of 
X's interest in UTP is increased by $250, and the adjusted basis of A's 
interest in UTP is increased by $250. However, under paragraph 
(c)(4)(iii) of this section, the adjusted basis of A's interest in UTP 
is reduced by the $200 of partnership section 1045 gain that was not 
recognized by A.
    (iv) Under paragraph (c)(4)(ii) of this section, the LTP's adjusted 
basis in replacement QSB1 stock is reduced by the $200 of gain from the 
sale of QSB stock that is not recognized by A, as a result of A's 
election under section 1045. A must retain records setting forth the 
computation of this basis adjustment, the replacement QSB stock to which 
the adjustment is made, and dates the stock was acquired. LTP's adjusted 
basis in the replacement QSB1 stock is maintained without regard to the 
eligible partner's adjustment provided in paragraph (c)(4)(ii) of this 
section.
    (v) On the sale of replacement QSB1 stock, LTP realizes a gain of 
$300, $100 of which is allocated to Y and $200 of which is allocated to 
UTP. UTP allocates $100 of this gain to A. Under paragraph (c)(5) of 
this section, in determining A's amount recognized upon the sale of 
replacement QSB1 stock by LTP, A must take into account A's basis 
adjustment of $200. Accordingly, A recognizes a total gain of $300 upon 
the sale of replacement QSB1 stock, absent an additional section 1045 
election by A or LTP. Under paragraph (c)(4)(iv) of this section, the 
adjusted basis of A's interest in UTP is increased by $300 under section 
705(a)(1).
    (vi) Assume the same facts as in paragraph (i) of this Example 4, 
except that UTP sells its entire interest in LTP on March 30, 2009, for 
$1,200. UTP realizes a gain of $200 on the sale of its interest in LTP 
($1,200 amount realized less $1,000 adjusted basis) and allocates $100 
of this gain to A. Under paragraph (c)(5) of this section, in 
determining A's amount recognized upon the sale of UTP's interest in 
LTP, A must take into account A's basis adjustment of $200. Accordingly, 
A recognizes a total gain of $300 upon the sale of the interest in LTP. 
Under paragraph (c)(4)(iv) of this section, the adjusted basis in A's 
interest in UTP is increased by $300 under section 705(a)(1).
    Example 5. Partnership sale of QSB stock and purchase and sale of 
replacement QSB stock. (i) On January 1, 2008, A, an individual, X, a C 
corporation, and Y, a C corporation, form PRS, a partnership. A, X, and 
Y each contribute $250 to PRS and agree to share all partnership items 
equally. PRS purchases QSB stock for $750 on February 1, 2008. On 
November 3, 2008, PRS sells the QSB stock for $1,500. PRS realizes $750 
of gain from the sale of the QSB stock (none of which is treated as 
ordinary income) and allocates $250 of gain to each of A, X, and Y. PRS 
purchases replacement QSB stock (replacement QSB1 stock) for $1,350 on 
December 15, 2008. On its timely filed return for the taxable year 
during which the sale of the QSB stock occurs, PRS makes an election to 
apply section 1045. A does not make an election to apply section 1045 
with respect to the November 3, 2008, sale of QSB stock. PRS knows that 
X and Y are C corporations. On March 30, 2009, PRS sells replacement 
QSB1 stock for $1,650. PRS realizes $300 of gain from the sale of 
replacement QSB1 stock (none of which is treated as ordinary income) and 
allocates $100 of gain to each of A, X, and Y. A does not make an 
election to apply section 1045 with respect to the March 30, 2009, sale 
of replacement QSB1 stock.
    (ii) Under paragraph (b)(1) of this section, the partnership section 
1045 gain from the November 3, 2008, sale of QSB stock is $600 ($750 
gain less $150 ($1,500 amount realized on the sale of QSB stock less 
$1,350 cost of replacement QSB1 stock)). This amount must be allocated 
among the partners in the same proportions as the entire gain from the 
sale of QSB stock is allocated to the partners, \1/3\ ($200) to A, \1/3\ 
($200) to X, and \1/3\ ($200) to Y.
    (iii) Because neither X nor Y is an eligible partner under paragraph 
(g)(3) of this section, X and Y must each recognize its $250 
distributive share of partnership gain from the sale of QSB stock. 
Because A is an eligible partner under paragraph (g)(3) of this section, 
A may defer recognition of A's $200 distributive share of partnership 
section 1045 gain. A is not required to separately elect to apply 
section 1045. A must recognize A's remaining $50 distributive share of 
the partnership's gain from the sale of QSB stock.
    (iv) Under section 705(a)(1), the adjusted bases of X's and Y's 
interests in PRS are each increased by $250. Under section 705(a)(1) and 
paragraph (b)(3)(i) of this section, the adjusted basis of A's interest 
in PRS is not increased by the $200 of partnership section 1045 gain 
that was not recognized by A, but is increased by A's remaining $50 
distributive share of gain.
    (v) PRS must decrease its basis in the replacement QSB1 stock by the 
$200 of partnership section 1045 gain that was allocated to A. This 
basis reduction is a reduction with

[[Page 200]]

respect to A only. PRS then adjusts A's distributive share of gain from 
the sale of replacement QSB1 stock to reflect the effect of A's basis 
adjustment under paragraph (b)(3)(ii) of this section. In accordance 
with the principles of Sec.  1.743-1(j)(3), the amount of A's gain from 
the March 30, 2009, sale of replacement QSB1 stock in which A has a $200 
negative basis adjustment equals $300 (A's share of PRS' gain from the 
sale of replacement QSB1 stock ($100), increased by the amount of A's 
negative basis adjustment for replacement QSB1 stock ($200)). 
Accordingly, upon the sale of replacement QSB1 stock, A recognizes $300 
of gain, and X and Y each recognize $100 of gain.
    (vi) Assume the same facts as in paragraph (i) of this Example 5, 
except that PRS purchases replacement QSB stock (replacement QSB2 stock) 
on April 15, 2009, for $1,150 and PRS makes an election to apply section 
1045 with respect to the March 30, 2009, sale of replacement QSB1 stock. 
Under paragraph (b)(3)(ii)(A) of this section, PRS' $200 basis 
adjustment in QSB1 stock relating to the November 3, 2008, sale of QSB 
stock carries over to the basis adjustment for QSB2 stock. This basis 
adjustment is an adjustment with respect to A only. The $200 basis 
adjustment is reduced by A's distributive share of the excess of $500 
(the greater of the amount determined under paragraph (b)(1)(i), $0, or 
(ii) of this section, $500 ($1,650 amount realized on the sale of QSB1 
stock less $1,150 cost of replacement QSB2 stock)) over $300 (PRS' gain 
from the sale of QSB1 stock), or $67 ($200 ($500 minus $300) divided by 
3). Under paragraph (b)(3)(ii)(A), A must account for the $67 excess 
amount that reduces PRS' basis adjustment in QSB2 stock as gain in 
accordance with Sec.  1.743-1(j)(3). Therefore, A now has a $133 
negative basis adjustment with respect to replacement QSB2 stock (($200) 
negative basis adjustment from the November 3, 2008, sale of QSB stock 
plus $67 positive basis adjustment from the March 30, 2009, sale of QSB1 
stock). A also recognizes the $100 of gain allocated by PRS to A from 
the March 30, 2009, sale of replacement QSB1 stock for total gain 
recognition of $167 ($100 plus $67).
    Example 6. Partnership sale of QSB stock; election by eligible 
partner; replacement QSB stock purchased by purchasing partnership. (i) 
Assume the same facts as in Example 5 except that PRS does not make an 
election under section 1045 with respect to the sale of either the QSB 
stock on November 3, 2008, or the QSB1 stock on March 30, 2009. However, 
A makes an election under section 1045 with respect to the sale of QSB 
stock and treats the purchase of QSB1 stock on December 15, 2008, by 
PRS, as the purchase of replacement QSB stock. Additionally, A makes an 
election under section 1045 with respect to the sale of QSB1 stock and 
treats the purchase of QSB2 stock on April 15, 2009, by PRS, as the 
purchase of replacement QSB stock.
    (ii) A's distributive share of gain from the November 3, 2008, sale 
of QSB stock is $250 (A's \1/3\ interest in $750 of total PRS gain). 
Under paragraph (c)(1)(iii) of this section, A must recognize only $50 
of A's distributive share of PRS' gain of $250, that is the excess of 
A's share of the amount realized on the sale of QSB stock, or $500 (the 
total amount realized by PRS on the sale of QSB stock ($1,500) 
multiplied by A's share of the gain from the sale of QSB stock ($250) 
over the total gain realized by PRS on the sale of QSB stock ($750)), 
minus A's share of PRS' cost of QSB1 stock, or $450 (\1/3\ of $1,350). 
Under section 705(a)(1) and paragraph (c)(4)(i) of this section, A's 
adjusted basis in its interest in PRS is increased by $250. However, 
under paragraph (c)(4)(iii) of this section, because PRS is a purchasing 
partnership, A's adjusted basis of its interest in PRS is then reduced 
by the deferred gain of $200. Also under paragraph (c)(4)(ii) of this 
section, PRS' adjusted basis in QSB1 stock is reduced by the gain not 
recognized of $200 and A must take into account such adjusted basis in 
computing A's income, gain, loss or deduction with respect to QSB1 
stock. A must retain records setting forth the computation of this basis 
adjustment, the replacement QSB stock to which the adjustment is made, 
and dates the stock was acquired.
    (iii) A's distributive share of gain from the March 30, 2009, sale 
of QSB1 stock is $100 (A's \1/3\ interest in $300 of total PRS gain) and 
under paragraph (c)(5) of this section, A must take into account A's 
$200 basis adjustment with respect to the QSB1 stock that was sold. 
Accordingly, A's total gain from the sale of QSB1 stock is $300. Under 
paragraph (c)(1)(iii) of this section, A must recognize only $167 of A's 
total gain of $300, that is, the excess of A's share of the amount 
realized on the sale of QSB1 stock, or $550 (the total amount realized 
by PRS on the sale of QSB1 stock ($1,650) multiplied by A's share of the 
gain from the sale of QSB1 stock ($100) over the total gain realized by 
PRS on the sale of QSB1 stock ($300)) minus A's share of PRS' cost of 
QSB2 stock, or $383 (\1/3\ of $1,150). Under section 705(a)(1), A's 
adjusted basis in A's interest in PRS is increased by A's $100 
distributive share of gain from the sale of QSB1 stock. Under paragraph 
(c)(4)(iv) of this section, A's adjusted basis of A's interest in PRS is 
increased by the additional $67 of gain recognized under paragraph 
(c)(5) of this section. Also, under paragraph (c)(4)(ii) of this 
section, PRS' adjusted basis in QSB2 stock is reduced by the gain not 
recognized of $133 ($300 minus $167) and A must take into account such 
adjusted basis in computing A's income, gain, loss or deduction with 
respect to QSB2 stock. A must retain records setting forth the 
computation of this basis adjustment, the replacement QSB stock to which 
the adjustment is made, and dates the stock was acquired.

[[Page 201]]

    Example 7. Partnership sale of QSB stock and partner purchase of 
replacement QSB stock. (i) Assume the same facts as in paragraph (i) of 
Example 5, except that PRS does not make an election under section 1045 
with respect to the sale of the QSB stock and does not purchase 
replacement QSB stock. On November 30, 2008, A, an eligible partner 
under paragraph (g)(3) of this section, purchases replacement QSB stock 
for $500. A elects pursuant to paragraph (c) of this section to apply 
section 1045 on A's timely filed return for the taxable year that A is 
required to include A's distributive share of PRS' gain from the sale of 
the QSB stock.
    (ii) Under paragraph (c)(2) of this section, A's share of the amount 
realized from PRS' sale of the QSB stock is $500 (the total amount 
realized by the partnership on the sale of the QSB stock ($1,500) 
multiplied by A's share of the gain from the sale of the QSB stock 
($250) over the total gain realized by the partnership on the sale of 
the QSB stock ($750)). Because A purchased, within 60 days of PRS' sale 
of the QSB stock, replacement QSB stock for a cost equal to A's share of 
the partnership's amount realized on the sale of the QSB stock, and 
because A made an election pursuant to paragraph (c) of this section to 
apply section 1045, A defers recognition of A's $250 distributive share 
of gain from PRS' sale of the QSB stock. Under section 705(a)(1) and 
paragraph (c)(4)(i) of this section, the adjusted basis of A's interest 
in PRS is increased by $250. Under paragraph (c)(4)(ii) of this section, 
A's adjusted basis in the replacement QSB stock is $250 ($500 cost minus 
$250 nonrecognition amount).
    Example 8. Partial replacement by partnership; partial replacement 
by partner. (i) On January 1, 2008, A, an individual, and X, a C 
corporation, form PRS, a partnership. A and X each contribute $500 to 
PRS and agree to share all partnership items equally. PRS purchases QSB 
stock on February 1, 2008, for $1,000 and subsequently sells the QSB 
stock on January 31, 2010, for $3,000. PRS realizes $2,000 of gain from 
the sale of the QSB stock (none of which is treated as ordinary income) 
and allocates $1,000 of gain to each of A and X. On February 10, 2010, 
PRS purchases replacement QSB stock for $2,200. On March 20, 2010, A 
purchases replacement QSB stock for $400. PRS makes an election to apply 
section 1045 under paragraph (b)(1) of this section with respect to the 
partnership section 1045 gain from the sale of QSB stock and A does not 
opt out of PRS' section 1045 election under paragraph (b)(4) of this 
section. Also, A makes an election under paragraph (c)(1) of this 
section with respect to the remaining gain from the sale of the QSB 
stock.
    (ii) Under paragraph (b)(1) of this section, partnership section 
1045 gain is $1,200 ($2,000 less $800 ($3,000 amount realized on the 
sale of the QSB stock minus $2,200 cost of the replacement QSB stock)). 
This amount is allocated among the partners in the same proportions as 
the entire gain from the sale of the QSB stock is allocated to the 
partners, \1/2\ to A ($600), and \1/2\ to X ($600). Because A is an 
eligible partner, A defers recognition of A's $600 distributive share of 
partnership section 1045 gain.
    (iii) A also made an election under section 1045 and purchased, 
within 60 days of PRS' sale of the QSB stock, replacement QSB stock for 
$400. Therefore, under paragraph (c)(1) of this section, A may defer a 
portion of A's distributive share of the remaining gain from the 
partnership's sale of the QSB stock. A must recognize that remaining 
gain to the extent that A's share of the amount realized by PRS on the 
sale of the QSB stock (excluding the cost of the QSB stock that was 
replaced by PRS) exceeds the cost of the replacement QSB stock purchased 
by A during the 60-day period following the sale of the QSB stock. The 
amount realized by PRS on the sale of the QSB stock (excluding the cost 
of the QSB stock that was replaced by PRS) is $800 ($3,000 minus 
$2,200). Under paragraph (c)(2) of this section, A's share of that 
amount realized is $400 ($1,000 (A's share of the realized gain from the 
sale of the QSB stock) / $2,000 (PRS total realized gain from the sale 
of the QSB stock) multiplied by $800). Because the replacement QSB stock 
purchased by A cost $400, A defers recognition of all of the remaining 
gain from the sale of the QSB stock.
    (iv) The adjusted basis of A's interest in PRS is not increased by 
the $600 gain that was not recognized pursuant to paragraph (b)(1) of 
this section, but is increased by the $400 gain that was not recognized 
pursuant to paragraph (c)(1) of this section. See paragraphs (b)(3)(i) 
and (c)(4)(i) of this section. PRS must decrease its basis in the 
replacement QSB stock by the $600 of partnership section 1045 gain that 
was allocated to A. See paragraph (b)(3)(ii) of this section. A must 
decrease A's basis in the replacement QSB stock purchased by A by the 
$400 not recognized pursuant to paragraph (c)(1) of this section. See 
paragraph (c)(4)(ii) of this section.
    Example 9. Change in partner's interest in partnership while 
partnership holds QSB stock. (i) On January 1, 2008, A, an individual, 
and X, a C corporation, form PRS, a partnership. A and X each contribute 
$500 to PRS and agree to share all partnership items equally. PRS 
purchases QSB stock on February 1, 2008, for $1,000. On August 2, 2008, 
A sells a 25 percent interest in PRS to Z. On July 10, 2009, A 
repurchases the 25 percent interest from Z for $500. PRS makes a timely 
election under section 754 for the 2008 taxable year. Under section 
743(b), A has a positive basis adjustment of $250. On January 31, 2011, 
PRS sells the QSB stock for $3,000. PRS realizes $2,000 of gain from the 
sale of the QSB stock (none of which is treated as ordinary income) and 
allocates $1,000 of gain to each of A and

[[Page 202]]

X. On February 10, 2010, PRS purchases replacement QSB stock for $3,000. 
PRS makes an election to apply section 1045 under paragraph (b)(1) of 
this section with respect to the partnership section 1045 gain from the 
sale of QSB stock.
    (ii) Of the $2,000 of realized gain from the sale of the QSB stock, 
PRS allocates $1,000 to A and $1,000 to X. However, A has a positive 
basis adjustment of $250 under section 743(b) as a result of the 
purchase of the 25 percent interest in PRS from Z; therefore, A's share 
of the gain is reduced to $750. Because A is an eligible partner under 
paragraph (g)(3) of this section, A may defer recognition of A's 
distributive share of gain from the sale of the QSB stock subject to the 
nonrecognition limitation described in paragraph (d) of this section. 
The smallest percentage interest that A held in PRS capital during the 
time that PRS held the QSB stock is 25 percent. Under the nonrecognition 
limitation, A may not defer more than 25 percent of the partnership gain 
realized from the sale of the QSB stock (determined without regard to 
any basis adjustment under section 734(b) or section 743(b), other than 
a basis adjustment described in paragraph (b)(3)(ii) of this section). 
Because the partnership's realized gain determined without regard to A's 
basis adjustment under section 743(b) is $2,000, A may defer recognition 
of $500 (25 percent of $2,000) of the gain from the sale of the QSB 
stock. A must recognize the remaining $250 of that gain.
    Example 10. Sale by partner of QSB stock received in a liquidating 
distribution. (i) On January 1, 2008, A, an individual, and X, a C 
corporation, form PRS, a partnership. A and X each contribute $1,500 to 
PRS and agree to share all partnership items equally. PRS purchases QSB 
stock on February 1, 2008, for $3,000. On May 1, 2008, when the QSB 
stock has appreciated in value to $4,000, A contributes $1,000 to PRS, 
increasing A's interest in PRS capital to 60 percent. On June 1, 2011, 
when the QSB stock is still worth $4,000, PRS makes a liquidating 
distribution of $3,000 worth of QSB stock to A. Under section 732, A's 
basis in the distributed QSB stock is $2,500. A sells the QSB stock on 
August 4, 2011, for $6,000, realizing a gain of $3,500 (none of which is 
treated as ordinary income). A purchases replacement QSB stock on August 
30, 2011, for $5,500, and makes an election under section 1045 with 
respect to the August 4, 2011, sale of QSB stock.
    (ii) A is an eligible partner under paragraph (g)(3) of this 
section. Therefore, under paragraph (e)(1) of this section, A is treated 
as having acquired the distributed QSB stock in the same manner as PRS 
and as having held the QSB stock since February 1, 2008, its original 
issue date. Because A purchased, within 60 days of A's sale of the QSB 
stock, replacement QSB stock, A is eligible to defer a portion of A's 
gain from the sale of the QSB stock. A must recognize gain, however, to 
the extent that A's amount realized on the sale of the QSB stock, 
$6,000, exceeds the cost of the replacement QSB stock purchased by A 
during the 60-day period beginning on the date of the sale of the QSB 
stock, $5,500. Accordingly, A must recognize $500 of the gain from the 
sale of the QSB stock. A defers recognition of the remaining $3,000 of 
gain to the extent that such gain does not exceed the distribution 
nonrecognition limitation under paragraph (e)(3) of this section.
    (iii) Under paragraph (e)(3)(i) of this section, A's nonrecognition 
limitation with respect to the sale of the QSB stock is A's section 1045 
amount realized with respect to the stock, reduced by A's section 1045 
adjusted basis with respect to the stock. A's amount realized from the 
sale is the product of A's amount realized from the sale, $6,000; and a 
fraction--
    (1) The numerator of which is A's smallest percentage interest in 
PRS capital with respect to such stock, 50 percent; and
    (2) The denominator of which is A's percentage interest in that type 
of partnership QSB stock immediately after the distribution, 75 percent 
(the value of the stock distributed to A, $3,000, divided by the value 
of all QSB stock of that type acquired by PRS, $4,000).
    (iv) Therefore, A's section 1045 amount realized is $4,000 ($6,000 
multiplied by 50/75). Because PRS distributed the QSB stock to A in 
liquidation of A's interest in PRS, A's section 1045 adjusted basis is 
the product of PRS' basis in all of the QSB stock of the type 
distributed, $3,000; A's smallest percentage interest in PRS capital 
with respect to QSB stock of the type distributed, 50 percent; and the 
percentage of the distributed QSB stock that was sold by A, 100 percent. 
Therefore, A's section 1045 adjusted basis is $1,500 (the product of 
$3,000, 50 percent, and 100 percent)) and A's nonrecognition limitation 
amount on the sale of the QSB stock is $2,500 ($4,000 section 1045 
amount realized minus $1,500 section 1045 adjusted basis). Accordingly, 
A defers recognition of $2,500 of the remaining $3,000 gain from the 
sale of the QSB stock and must recognize $500 of the remaining $3,000 
gain. Accordingly, A's total gain recognized from the sale of the QSB 
stock is $1,000.
    (v) A's basis in the replacement QSB stock is $3,000 (cost of the 
replacement QSB stock, $5,500, reduced by the gain not recognized under 
section 1045, $2,500).
    Example 11. Sale by partner of QSB stock received in a 
nonliquidating distribution. (i) The facts are the same as in Example 
10, except that, on June 1, 2011, PRS distributes only $2,000 of the QSB 
stock to A, reducing A's interest in PRS capital from 60 percent to 33 
percent. PRS' basis in the distributed QSB stock is $1,500. On November 
1, 2011, A sells for $2,500 the QSB stock distributed by PRS

[[Page 203]]

to A and purchases, within 60 days of the date of sale of the QSB stock, 
replacement QSB stock for $2,500. A makes a timely election to apply 
section 1045 with respect to A's sale of the distributed QSB stock.
    (ii) Under section 732, A's basis in the distributed QSB stock is 
$1,500. Therefore, A realizes a gain on the sale of the distributed QSB 
stock of $1,000. Because A made an election to apply section 1045 to the 
sale, and because A purchased, within 60 days of A's sale of the QSB 
stock, replacement QSB stock at a cost equal to the amount realized on 
the sale of the distributed QSB stock, A defers recognition of the gain 
from the sale of the QSB stock to the extent that such gain does not 
exceed the distribution nonrecognition limitation.
    (iii) Under paragraph (e)(3) of this section, the nonrecognition 
limitation with respect to A's sale of the QSB stock is A's section 1045 
amount realized reduced by A's section 1045 adjusted basis. Because PRS 
did not distribute all of the particular type of QSB stock and the 
distribution of the QSB stock to A was not in liquidation of A's 
interest in PRS, under paragraph (e)(3)(ii)(C) of this section A's 
section 1045 amount realized is $1,250 (A's amount realized from the 
sale of the distributed QSB stock, $2,500, multiplied by A's smallest 
percentage interest in PRS capital with respect to such stock, 50 
percent). Under paragraph (e)(3)(iii)(B) of this section, A's section 
1045 adjusted basis is the product of the partnership's basis in the QSB 
stock sold by the partner, $1,500, and A's smallest percentage interest 
in the partnership capital with respect to such stock, 50 percent. 
Therefore, A's section 1045 adjusted basis is $750 (50 percent of 
$1,500), and A's nonrecognition limitation amount on the sale of the QSB 
stock is $500 ($1,250 section 1045 amount realized minus $750 section 
1045 adjusted basis). As this amount is less than the amount of gain 
that A is eligible to defer under section 1045, $1,000, A defers 
recognition of only $500 of the gain from the sale of the QSB stock. A 
must recognize the remaining $500 of that gain.
    (iv) A's basis in the replacement QSB stock is $2,000 (cost of the 
replacement QSB stock, $2,500, reduced by the gain not recognized under 
section 1045, $500).
    Example 12. Contribution of replacement QSB stock to a partnership. 
(i) On January 1, 2008, A, an individual, B, an individual, and X, a C 
corporation, form PRS, a partnership. A, B, and X each contribute $250 
to PRS and agree to share all partnership items equally. On February 1, 
2008, PRS purchases QSB stock for $750. PRS sells the QSB stock on 
November 3, 2008, for $1,050. PRS realizes $300 of gain from the sale of 
the QSB stock (none of which is treated as ordinary income) and 
allocates $100 of gain to each of its partners. PRS informs the partners 
that it does not intend to make an election under section 1045 with 
respect to the sale of the QSB stock. Each partner's share of the amount 
realized from the sale of the QSB stock is $350. On November 30, 2008, 
A, an eligible partner within the meaning of paragraph (g)(3) of this 
section, purchases replacement QSB stock for $350 and makes a section 
1045 election under paragraph (c)(1) of this section. Subsequently, A 
transfers the replacement QSB stock to ABC, a partnership, in exchange 
for an interest in ABC.
    (ii) Because A purchased within 60 days of PRS' sale of the QSB 
stock, replacement QSB stock for a cost equal to A's share of the 
partnership's amount realized on the sale of the QSB stock, and because 
A made a valid election to apply section 1045 with respect to A's share 
of the gain from PRS' sale of the QSB stock, A does not recognize A's 
$100 distributive share of the gain from PRS' sale of the QSB stock. 
Before the contribution of the replacement QSB stock to ABC, A's 
adjusted basis in the replacement QSB stock is $250 ($350 cost minus 
$100 nonrecognition amount). A does not recognize gain upon the 
contribution of QSB stock to ABC under section 721(a). Upon the 
contribution of the replacement QSB stock to ABC, A's basis in the ABC 
partnership interest is $250, and ABC's basis in the replacement QSB 
stock is $250. However, the replacement QSB stock does not qualify as 
QSB stock in ABC's hands. Neither A nor ABC will be eligible to defer 
gain under section 1045 on a subsequent sale of the replacement QSB 
stock.
    (j) Effective date/applicability--In general. This section applies 
to sales of QSB stock on or after August 14, 2007.

[T.D. 9353, 72 FR 45349, Aug. 14, 2007, as amended by T.D. 9353, 72 FR 
57487, Oct. 10, 2007]

                              Special Rules



Sec.  1.1051-1  Basis of property acquired during affiliation.

    (a)(1) The basis of property acquired by a corporation during a 
period of affiliation from a corporation with which it was affiliated 
shall be the same as it would be in the hands of the corporation from 
which acquired. This rule is applicable if the basis of the property is 
material in determining tax liability for any year, whether a separate 
return or a consolidated return is made in respect of such year. For the 
purpose of this section, the term period of affiliation means the period 
during which such corporations were affiliated (determined in accordance 
with the law applicable thereto), but does not include any taxable year 
beginning on or

[[Page 204]]

after January 1, 1922, unless a consolidated return was made, nor any 
taxable year after the taxable year 1928.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example: The X Corporation, the Y Corporation, and the Z Corporation 
were affiliated for the taxable year 1920. During that year the X 
Corporation transferred assets to the Y Corporation for $120,000 cash, 
and the Y Corporation in turn transferred the assets during the same 
year to the Z Corporation for $130,000 cash. The assets were acquired by 
the X Corporation in 1916 at a cost of $100,000. The basis of the assets 
in the hands of the Z Corporation is $100,000.

    (b) The basis of property acquired by a corporation during any 
period, in the taxable year 1929 or any subsequent taxable year, in 
respect of which a consolidated return was made or was required under 
the regulations governing the making of consolidated returns, shall be 
determined in accordance with such regulations. The basis in the case of 
property held by a corporation during any period, in the taxable year 
1929 or any subsequent taxable year, in respect of which a consolidated 
return is made or is required under the regulations governing the making 
of consolidated returns, shall be adjusted in respect of any items 
relating to such period in accordance with such regulations.
    (c) Except as otherwise provided in the regulations promulgated 
under section 1502 of the Internal Revenue Code of 1954 or the 
regulations under section 141 of the Internal Revenue Code of 1939 or 
the Revenue Act of 1938 (52 Stat. 447), 1936 (49 Stat. 1652), 1934 (48 
Stat. 683), 1932 (47 Stat. 169), or 1928 (45 Stat. 791), the basis of 
property after a consolidated return period shall be the same as the 
basis immediately prior to the close of such period.



Sec.  1.1052-1  Basis of property established by Revenue Act of 1932.

    Section 1052(a) provides that if property was acquired after 
February 28, 1913, in any taxable year beginning before January 1, 1934, 
and the basis of the property, for the purposes of the Revenue Act of 
1932 (47 Stat. 169), was prescribed by section 113(a) (6), (7), or (9) 
of that act, then for purposes of subtitle A of the Code, the basis 
shall be the same as the basis prescribed in the Revenue Act of 1932. 
For the rules applicable in determining the basis of stocks or 
securities under section 113(a)(9) of the Revenue Act of 1932 in case of 
certain distributions after December 31, 1923, and in any taxable year 
beginning before January 1, 1934, see 26 CFR (1939) 39.113 (a)(12)-1 
(Regulations 118).



Sec.  1.1052-2  Basis of property established by Revenue Act of 1934.

    Section 1052(b) provides that if property was acquired after 
February 28, 1913, in any taxable year beginning before January 1, 1936, 
and the basis of the property for the purposes of the Revenue Act of 
1934 (48 Stat. 683) was prescribed by section 113(a) (6), (7), or (8) of 
that act, then for purposes of subtitle A of the Code, the basis shall 
be the same as the basis prescribed in the Revenue Act of 1934. For 
example, if after December 31, 1920, and in any taxable year beginning 
before January 1, 1936, property was acquired by a corporation by the 
issuance of its stock or securities in connection with a transaction 
which is not described in section 112(b)(5) of the Internal Revenue Code 
of 1939 but which is described in section 112(b)(5) of the Revenue Act 
of 1934, the basis of the property so acquired shall be the same as it 
would be in the hands of the transferor, with proper adjustments to the 
date of the exchange.



Sec.  1.1052-3  Basis of property established by 
the Internal Revenue Code of 1939.

    Section 1052(c) provides that if property was acquired after 
February 28, 1913, in a transaction to which the Internal Revenue Code 
of 1939 applied and the basis thereof was prescribed by section 113(a) 
(6), (7), (8), (13), (15), (18), (19) or (23) of such Code, then for 
purposes of subtitle A of the Internal Revenue Code of 1954, the basis 
shall be the same as the basis prescribed in the Internal Revenue Code 
of 1939. In such cases, see section 113(a) of the Internal Revenue Code 
of 1939 and the regulations thereunder.

[[Page 205]]



Sec.  1.1053-1  Property acquired before March 1, 1913.

    (a) Basis for determining gain. In the case of property acquired 
before March 1, 1913, the basis as of March 1, 1913, for determining 
gain is the cost or other basis, adjusted as provided in section 1016 
and other applicable provisions of chapter 1 of the Code, or its fair 
market value as of March 1, 1913, whichever is greater.
    (b) Basis for determining loss. In the case of property acquired 
before March 1, 1913, the basis as of March 1, 1913, for determining 
loss is the basis determined in accordance with part II (section 1011 
and following), subchapter O, chapter 1 of the Code, or other applicable 
provisions of chapter 1 of the Code, without reference to the fair 
market value as of March 1, 1913.
    (c) Example. The application of paragraphs (a) and (b) of this 
section may be illustrated by the following example:

    Example: (i) On March 1, 1908, a taxpayer purchased for $100,000, 
property having a useful life of 50 years. Assuming that there were no 
capital improvements to the property, the depreciation sustained on the 
property before March 1, 1913, was $10,000 (5 years @ $2,000), so that 
the original cost adjusted, as of March 1, 1913, for depreciation 
sustained prior to that date is $90,000. On that date the property had a 
fair market value of $94,500 with a remaining life of 45 years.
    (ii) For the purpose of determining gain from the sale or other 
disposition of the property on March 1, 1954, the basis of the property 
is the fair market value of $94,500 as of March 1, 1913, adjusted for 
depreciation allowed or allowable after February 28, 1913, computed on 
$94,500. Thus, the substituted basis, $94,500, is reduced by the 
depreciation adjustment from March 1, 1913, to February 28, 1954, in the 
aggregate of $86,100 (41 years @ $2,100), leaving an adjusted basis for 
determining gain of $8,400 ($94,500 less $86,100).
    (iii) For the purpose of determining loss from the sale or other 
disposition of such property on March 1, 1954, the basis of the property 
is its cost, adjusted for depreciation sustained before March 1, 1913, 
computed on cost, and the amount of depreciation allowed or allowable 
after February 28, 1913, computed on the fair market value of $94,500 as 
of March 1, 1913. In this example, the amount of depreciation sustained 
before March 1, 1913, is $10,000 and the amount of depreciation 
determined for the period after February 28, 1913, is $86,100. 
Therefore, the aggregate amount of depreciation for which the cost 
($100,000) should be adjusted is $96,100 ($10,000 plus $86,100), and the 
adjusted basis for determining loss on March 1, 1954, is $3,900 
($100,000 less $96,100).

    (d) Fair market value. The determination of the fair market value of 
property on March 1, 1913, is generally a question of fact and shall be 
established by competent evidence. In determining the fair market value 
of stock or other securities, due regard shall be given to the fair 
market value of the corporate assets as of such date, and other 
pertinent factors. In the case of property traded in on public 
exchanges, actual sales on or near the basic date afford evidence of 
value. In general, the fair market value of a block or aggregate of a 
particular kind of property is not to be determined by a forced-sale 
price, or by an estimate of what a whole block or aggregate would bring 
if placed upon the market at one and the same time. In such a case the 
value should be determined by ascertaining as the basis the fair market 
value of each unit of the property. All relevant facts and elements of 
value as of the basic date should be considered in each case.



Sec.  1.1054-1  Certain stock of Federal National Mortgage Association.

    (a) In general. The basis in the hands of the initial holder of a 
share of stock which is issued pursuant to section 303(c) of the Federal 
National Mortgage Association Charter Act (12 U.S.C., section 1718) in a 
taxable year beginning after December 31, 1959, shall be an amount equal 
to the issuance price of the stock reduced by the amount, if any, 
required by section 162(d) to be treated (with respect to such share) as 
an ordinary and necessary business expense. See section 162(d) and Sec.  
1.162-19. For purposes of this section the initial holder is the 
original purchaser who is issued stock of the Federal National Mortgage 
Association (FNMA) pursuant to section 303(c) of the Act and who appears 
on the books of FNMA as the initial holder. See Sec.  1.162-19.
    (b) Example. The provisions of this section may be illustrated by 
the following example:

    Example: Pursuant to section 303(c) of the Federal National Mortgage 
Association Charter Act a certificate of FNMA stock is issued to A as of 
January 1, 1961. The

[[Page 206]]

issuance price of the stock was $100 and the fair market value of the 
stock on the date of issue was $69. A was required by section 162(d) to 
treat $31 as a business expense for the year 1961. The basis of the 
share of stock in the hands of A, the initial holder, shall be $69, the 
amount paid for the stock ($100) reduced by $31.

[T.D. 6690, 28 FR 12254, Nov. 19, 1963]



Sec.  1.1055-1  General rule with respect to redeemable ground rents.

    (a) Character of a redeemable ground rent. For purposes of subtitle 
A of the Code (1) a redeemable ground rent (as defined in section 
1055(c) and paragraph (b) of this section) shall be treated as being in 
the nature of a mortgage, and (2) real property held subject to 
liabilities under such a redeemable ground rent shall be treated as held 
subject to liabilities under a mortgage. Thus, under section 1055(a) and 
this paragraph, the transfer of property subject to a redeemable ground 
rent has the same effect as the transfer of property subject to a 
mortgage, the acquisition of property subject to a redeemable ground 
rent is to be treated the same as the acquisition of property subject to 
a mortgage, and the holding of property subject to a redeemable ground 
rent is to be treated in the same manner as the holding of property 
subject to a mortgage. See section 163(c) for the treatment of any 
annual or periodic rental payment under a redeemable ground rent as 
interest.
    (b) Definition of redeemable ground rent. For purposes of subtitle A 
of the Code, the term redeemable ground rent means only a ground rent 
with respect to which all the following conditions are met:
    (1) There is a lease of land which is assignable by the lessee 
without the consent of the lessor.
    (2) The term of the lease is for a period in excess of 15 years, 
taking into account all periods for which the lease may be renewed at 
the option of the lessee.
    (3) The lessee has a present or future right to terminate the lease 
and to acquire the lessor's interest in the land (i.e., to redeem the 
ground rent) by the payment of a determined or determinable amount, 
which amount is referred to in Sec. Sec.  1.1055-2, 1.1055-3, and 
1.1055-4 as a redemption price. Such right must exist by virtue of State 
or local law. If the lessee's right to terminate the lease and to 
acquire the lessor's interest is not granted by State or local law but 
exists solely by virtue of a private agreement or privately created 
condition, the ground rent is not a redeemable ground rent.
    (4) The lessor's interest in the land subject to the lease is 
primarily a security interest to protect the payment to him of the 
annual or periodic rental payments due under the lease.
    (c) Effective date. In general, the provisions of section 1055 and 
paragraph (a) of this section take effect on April 11, 1963, and apply 
with respect to taxable years ending on or after such date. See Sec.  
1.1055-3 for rules for determining the basis of real property acquired 
subject to liabilities under a redeemable ground rent regardless of when 
such property was acquired. See also Sec.  1.1055-4 for rules for 
determining the basis of a redeemable ground rent in the hands of a 
holder who reserved or created such ground rent in connection with a 
transfer, occurring before April 11, 1963, of the right to hold real 
property subject to liabilities under such ground rent.

[T.D. 6821, 30 FR 6216, May 4, 1965]



Sec.  1.1055-2  Determination of amount realized on the transfer of the right 
to hold real property subject to liabilities under a redeemable ground rent.

    In determining the amount realized from a transfer, occurring on or 
after April 11, 1963, of the right to hold real property subject to 
liabilities under a redeemable ground rent, such ground rent shall be 
accounted for in the same manner as a mortgage for an amount of money 
equal to the redemption price of the ground rent. The provisions of this 
section apply in respect of any such transfer even though such ground 
rent was created prior to April 11, 1963. For provisions relating to the 
determination of the amount of and recognition of gain or loss from the 
sale or other disposition of property, see section 1001 and the 
regulations thereunder.

[T.D. 6821, 30 FR 6217, May 4, 1965]

[[Page 207]]



Sec.  1.1055-3  Basis of real property held subject to liabilities 
under a redeemable ground rent.

    (a) In general. The provisions of section 1055(a) and paragraph (a) 
of Sec.  1.1055-1 are applicable in determining the basis of real 
property held on or after April 11, 1963, in any case where the property 
at the time of acquisition was subject to liabilities under a redeemable 
ground rent. (See section 1055(b)(2).) Thus, if on or after April 11, 
1963, a taxpayer holds real property which was subject to liabilities 
under a redeemable ground rent at the time he acquired it, the basis of 
such property in the hands of such taxpayer, regardless of when the 
property was acquired, will include the redeemable ground rent in the 
same manner as if it were a mortgage in an amount equal to the 
redemption price of such ground rent. Likewise, if on or after April 11, 
1963, a taxpayer holds real property which was subject to liabilities 
under a redeemable ground rent at the time he acquired it and which has 
a substituted basis in his hands, the basis of the property in the hands 
of the taxpayer's predecessor in interest is to be determined by 
treating the redeemable ground rent in the same manner as a mortgage in 
an amount equal to the redemption price of such ground rent.
    (b) Illustrations. The provisions of this section may be illustrated 
by the following examples:

    Example 1. On April 11, 1963, taxpayer A held residential property 
which he acquired on January 15, 1963, for a purchase price of $10,000 
and which, at the time he acquired it, was subject to a ground rent 
redeemable for a redemption price of $1,600. A's basis for the property 
includes the purchase price ($10,000) plus the redeemable ground rent in 
the same manner as if it were a mortgage for $1,600.
    Example 2. In 1962, taxpayer X, a corporation, acquired real 
property subject to a redeemable ground rent in a transfer to which 
section 351 (relating to transfer of property to corporation controlled 
by transferor) applied and in which the basis of the property to X was 
the transferor's basis. X still held the property on April 11, 1963. The 
transferor's basis in the property is to be determined by treating the 
redeemable ground rent to which it was subject in the transferor's hands 
as if it were a mortgage.

[T.D. 6821, 30 FR 6217, May 4, 1965]



Sec.  1.1055-4  Basis of redeemable ground rent reserved or created 
in connection with transfers of real property before April 11, 1963.

    (a) In general. In the case of a redeemable ground rent created or 
reserved in connection with a transfer, occurring before April 11, 1963, 
of the right to hold real property subject to liabilities under such 
ground rent, the basis of such ground rent on or after April 11, 1963, 
in the hands of the person who reserved or created the ground rent is 
the amount which was taken into account in respect of such ground rent 
in computing the amount realized from the transfer of such real 
property. Thus, if no such amount was taken into account, such basis 
shall be determined without regard to section 1055. (See section 
1055(b)(3).)
    (b) The provisions of this section may be illustrated by the 
following examples:

    Example 1. The taxpayer, who was in the business of building houses, 
purchased an undeveloped lot of land for $500 and built a house thereon 
at a cost of $10,000. Subsequently, he transferred the right to hold the 
lot improved by the house for a consideration of $12,000, and an annual 
ground rent for such property of $120 which was redeemable for a 
redemption price of $2,000. The taxpayer reported a $2,000 gain on the 
transfer, treating the amount realized as $12,000 and his cost allocable 
to the interest transferred as $10,000. Since the builder did not take 
the redeemable ground rent into account in computing gain on the 
transfer, his basis for such ground rent is $500 (the cost of the land 
not offset against the consideration received for the transfer). Thus, 
if he subsequently sells the redeemable ground rent (or if it is 
redeemed from him) for $2,000, he has no gain of $1,500 in the year of 
sale (or redemption).
    Example 2. Assume the same facts as in Example 1 except that the 
builder reported a gain of $3,500 on the transfer, treating the amount 
realized as $14,000 ($12,000 cash plus $2,000 for the redeemable ground 
rent) and his costs as $10,500 ($10,000 for the house and $500 for the 
lot). Since the taxpayer took the entire amount of the redeemable ground 
rent into account in computing his gain, his basis for such ground rent 
is $2,000. Thus, if he subsequently sells the redeemable ground rent (or 
if it is redeemed from him) for $2,000, he has no gain or loss on the 
transaction.
    Example 3. Assume the same facts as in Example 1 except that the 
builder reported a gain of $3,000 on the transfer. He computed this gain 
by treating the amount realized as $12,000 but treating his cost 
allocable to the

[[Page 208]]

interest transferred as $12,000/$14,000ths of his total $10,500 cost, or 
$9,000. Since the builder still has remaining $1,500 of unallocated 
cost, his basis for the redeemable ground rent is $1,500. Thus, if he 
subsequently sells the redeemable ground rent (or if it is redeemed from 
him) for $2,000, he has a gain of $500 in the year of sale (or 
redemption).

[T.D. 6821, 30 FR 6217, May 4, 1965]



Sec.  1.1059(e)-1  Non-pro rata redemptions.

    (a) In general. Section 1059(d)(6) (exception where stock held 
during entire existence of corporation) and section 1059(e)(2) 
(qualifying dividends) do not apply to any distribution treated as an 
extraordinary dividend under section 1059(e)(1). For example, if a 
redemption of stock is not pro rata as to all shareholders, any amount 
treated as a dividend under section 301 is treated as an extraordinary 
dividend regardless of whether the dividend is a qualifying dividend.
    (b) Reorganizations. For purposes of section 1059(e)(1), any 
exchange under section 356 is treated as a redemption and, to the extent 
any amount is treated as a dividend under section 356(a)(2), it is 
treated as a dividend under section 301.
    (c) Effective date. This section applies to distributions announced 
(within the meaning of section 1059(d)(5)) on or after June 17, 1996.

[T.D. 8724, 62 FR 38028, July 16, 1997]



Sec.  1.1059A-1  Limitation on taxpayer's basis or inventory cost 
in property imported from related persons.

    (a) General rule. In the case of property imported into the United 
States in a transaction (directly or indirectly) by a controlled 
taxpayer from another member of a controlled group of taxpayers, except 
for the adjustments permitted by paragraph (c) (2) of this section, the 
amount of any costs taken into account in computing the basis or 
inventory cost of the property by the purchasing U.S. taxpayer and which 
costs are also taken into account in computing the valuation of the 
property for customs purposes may not, for purposes of the basis or 
inventory cost, be greater than the amount of the costs used in 
computing the customs value. For purposes of this section, the terms 
controlled taxpayer and group of controlled taxpayers shall have the 
meaning set forth in Sec.  1.482-1(a).
    (b) Definitions--(1) Import. For purposes of section 1059A and this 
section only, the term import means the filing of the entry 
documentation required by the U.S. Customs Service to secure the release 
of imported merchandise from custody of the U.S. Customs Service.
    (2) Indirectly. For purposes of this section, indirectly refers to a 
transaction between a controlled taxpayer and another member of the 
controlled group whereby property is imported through a person acting as 
an agent of, or otherwise on behalf of, either or both related persons, 
or as a middleman or conduit for transfer of the property between a 
controlled taxpayer and another member of the controlled group. In the 
case of the importation of property indirectly, an adjustment shall be 
permitted under paragraph (c)(2) of this section for a commission or 
markup paid to the person acting as agent, middleman, or conduit, only 
to the extent that the commission or markup: is otherwise properly 
included in cost basis or inventory cost; was actually incurred by the 
taxpayer and not remitted, directly or indirectly, to the taxpayer or 
related party; and there is a substantial business reason for the use of 
a middleman, agent, or conduit.
    (c) Customs value--(1) Definition. For purposes of this section 
only, the term customs value means the value required to be taken into 
account for purposes of determining the amount of any customs duties or 
any other duties which may be imposed on the importation of any 
property. Where an item or a portion of an item is not subject to any 
customs duty or is subject to a free rate of duty, such item or portion 
of such item shall not be subject to the provisions of section 1059A or 
this section. Thus, for example, the portion of an item that is an 
American good returned and not subject to duty (items 806.20 and 806.30, 
Tariff Schedules of the United States, 19 U.S.C. 1202); imports on which 
no duty is imposed that are valued by customs for statistical purposes 
only; and items subject to a zero rate of duty (19 U.S.C. 1202, General 
Headnote 3) are not subject to section

[[Page 209]]

1059A or this section. Also, items subject only to the user fee under 19 
U.S.C. 58(c), or the harbor maintenance tax imposed by 26 U.S.C. 4461, 
or only to both, are not subject to section 1059A or this section. This 
section imposes no limitation on a claimed basis or inventory cost in 
property which is less than the value used to compute the customs duty 
with respect to the same property. Section 1059A and this section have 
no application to imported property not subject to any customs duty 
based on value, including property subject only to a per item duty or a 
duty based on volume, because there is no customs value, within the 
meaning of this paragraph, with respect to such property.
    (2) Adjustments to customs value. To the extent not otherwise 
included in customs value, a taxpayer, for purposes of determining the 
limitation on claimed basis or inventory cost of property under this 
section, may increase the customs value of imported property by the 
amounts incurred by it and properly included in inventory cost for--
    (i) Freight charges,
    (ii) Insurance charges,
    (iii) The construction, erection, assembly, or technical assistance 
provided with respect to, the property after its importation into the 
United States, and
    (iv) Any other amounts which are not taken into account in 
determining the customs value, which are not properly includible in 
customs value, and which are appropriately included in the cost basis or 
inventory cost for income tax purposes. See Sec.  1.471-11 and section 
263A.

Appropriate adjustments may also be made to customs values when the 
taxpayer has not allocated the value of assists to individual articles 
but rather has reported the value of assists on a periodic basis in 
accordance with 19 CFR 152.103(e). When 19 CFR 152.103(e) has been 
utilized for customs purposes, the taxpayer may adjust his customs 
values by allocating the value of the assists to all imported articles 
to which the assists relate. To the extent that an amount attributable 
to an adjustment permitted by this section is paid by a controlled 
taxpayer to another member of the group of controlled taxpayers, an 
adjustment is permitted under this section only to the extent that the 
amount incurred represents an arm's length charge within the meaning of 
Sec.  1.482-1(d)(3).
    (3) Offsets to adjustments. To the extent that a customs value is 
adjusted under paragraph (c)(2) of this section for purposes of 
calculating the limitation on claimed cost basis or inventory cost under 
this section, the amount of the adjustments must be offset (reduced) by 
amounts that properly reduce the cost basis of inventory and that are 
not taken into account in determining customs value, such as rebates and 
other reductions in the price actually incurred, effected between the 
purchaser and related seller after the date of importation of the 
property.
    (4) Application of section 1059A to property having dutiable and 
nondutiable portions. When an item of imported property is subiect to a 
duty upon the full value of the imported article, less the cost or value 
of American goods returned, and the taxpayer claims a basis or inventory 
cost greater than the customs value reported for the item, the claimed 
tax basis or inventory cost in the dutiable portion of the item is 
limited under section 1059A and this section to the customs value of the 
dutiable portion under paragraph (c)(1). The claimed tax basis or 
inventory cost in the nondutiable portion of the item is determined by 
multiplying the customs value of the nondutiable portion by a fraction 
the numerator of which is the amount by which the claimed basis or 
inventory cost of the item exceeds the customs value of the item and the 
denominator of which is the customs value of the item and adding this 
amount to the customs value of the nondutiable portion of the item. The 
claimed tax basis or inventory cost in the dutiable portion is 
determined by multiplying the customs value of the dutiable portion by a 
fraction the numerator of which is the amount by which the claimed basis 
or inventory cost of the item exceeds the customs value of the item and 
the denominator of which is the customs value of the item and adding 
this amount to the customs value of the dutiable portion of the item. 
However, the taxpayer

[[Page 210]]

may not claim a tax basis or inventory cost in the dutiable portion 
greater than the customs value of this portion of the item.
    (5) Allocation of adjustments to property having dutiable and 
nondutiable portions. When an item of imported property is subject to a 
duty upon the full value of the imported article, less the cost or value 
of American goods returned, and the taxpayer establishes that the 
customs value may be increased by adjustments permitted under paragraph 
(c)(2) of this section for purposes of the section 1059A limitation, the 
taxpayer's basis or inventory cost of the dutiable portion of the item 
is determined by multiplying the customs value of the dutiable portion 
times the percentage that the adjustments represent of the total customs 
value of the item and adding this amount to the customs value of the 
dutiable portion of the item. The taxpayer's basis or inventory cost of 
the nondutiable portion of the item is determined in the same manner. 
The amount so determined for the dutiable portion of the item is the 
section 1059A limitation for this portion of the item.
    (6) Alternative method of demonstrating compliance. In lieu of 
calculating all adjustments and offsets to adjustments to customs value 
for an item of property pursuant to paragraph (c) (2) and (3) of this 
section, a taxpayer may demonstrate compliance with this section and 
section 1059A by comparing costs taken into account in computing basis 
or inventory costs of the property and the costs taken into account in 
computing customs value at any time after importation, provided that in 
any such comparison the same costs are included both in basis or 
inventory costs and in customs value. If, on the basis of such 
comparison, the basis or inventory cost is equal to or less than the 
customs value, the taxpayer shall be deemed to have met the requirements 
of this section and section 1059A.
    (7) Relationship of section 1059A to section 482. Neither this 
section nor section 1059A limits in any way the authority of the 
Commissioner to increase or decrease the claimed basis or inventory cost 
under section 482 or any other appropriate provision of law. Neither 
does this section or section 1059A permit a taxpayer to adjust upward 
its cost basis or inventory cost for property appropriately determined 
under section 482 because such basis or inventory cost is less than the 
customs value with respect to such property.
    (8) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays 
$2,000 to Y for merchandise imported into the United States and an 
additional $150 for ocean freight and insurance. The customs value of 
the shipment is determined to be the amount actually paid by X ($2,000) 
and does not include the charges for ocean freight and insurance. For 
purposes of computing the limitation on its inventory cost for the 
merchandise under section 1059A and this section, X is permitted, under 
paragraph (c)(2) of this section, to increase the customs value ($2,000) 
by amounts it paid for ocean freight and insurance charges ($150). Thus, 
the inventory cost claimed by X in the merchandise may not exceed 
$2,150.
    Example 2. Assume the same facts as in Example 1 except that, 
subsequent to the date of importation of the merchandise, Y grants to X 
a rebate of $200 of the purchase price. At the time of sale, the rebate 
was contingent upon the volume of merchandise ultimately bought by X 
from Y. The value of the merchandise, for customs purposes, is not 
decreased by the rebate paid to X by Y. Therefore, the customs value, 
for customs purposes, of the merchandise remains the same ($2,000). For 
purposes of computing its inventory cost, X was permitted, under 
paragraph (c)(2) of this section, to increase the customs value for 
purposes of section 1059A of $2,000 by the amounts it paid for ocean 
freight and insurance charges ($150). However, under paragraph (c)(3) of 
this section, X is required to reduce the amount of the customs value by 
the lesser of the amount of the rebate or the amount of any positive 
adjustments to the original customs value. The inventory price claimed 
by X may not exceed $2,000 ($2,000 customs value, plus $150 
transportation adjustment, less $150 offsetting rebate adjustment). 
While X's limitation under section 1059A is $2,000, X may not claim a 
basis or inventory cost in the merchandise in excess of $1,950. See 
I.R.C. section 1012; and section 1.471-2.
    Example 3. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays 
$10,000 to Y for merchandise imported into the United States. The 
merchandise is composed, in part, of American goods returned. The 
customs value of the merchandise, on

[[Page 211]]

which a customs duty is imposed, is determined to be $8,000 ($10,000, 
the amount declared by X, less $2,000, the value of the American goods 
returned). For income tax purposes, X claims a cost basis in the 
merchandise of $11,000. None of the adjustments permitted by paragraph 
(c)(2) of this section is applicable. The portion of the merchandise 
constituting American goods returned represented 20 percent of the total 
customs value of the merchandise. Since the cost basis claimed by X for 
income tax purposes represents a 10 percent increase over the customs 
valuation (before reduction for American goods returned), the claimed 
tax basis in the dutiable content is considered to be $8,800 and in the 
portion constituting American goods returned is $2,200. Since a customs 
duty was imposed only on the dutiable content of the merchandise, the 
limitation in section 1059A and this section is applicable only to the 
claimed tax basis in this portion of the merchandise. Accordingly, under 
paragraph (a) of this section, X is limited to a cost basis of $10,200 
in the merchandise. This amount represents a cost basis of $8,000 in the 
dutiable content and of $2,200 in the portion of the merchandise 
constituting American goods returned.
    Example 4. Assume the same facts as in Example 3 except that X 
establishes that it is entitled to increase its customs value by $1,000 
in adjustments permitted by paragraph (c)(2) of this section. Since the 
adjustments to customs value that X is entitled to under paragraph 
(c)(2) of this section are 10 percent of the customs value, for purposes 
of determining the limitation under section 1059A and this section, both 
the dutiable content and the portion of the merchandise constituting 
American goods returned shall be increased to an amount 10 percent 
greater than the respective values determined for customs purposes, or 
$8,800 for the dutiable content and $2,200 for the portion of the 
merchandise constituting American goods returned. Accordingly, under 
paragraph (a) of this section, X is limited to a cost basis of $11,000 
in the merchandise.
    Example 5. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays 
$10,000 to Y for merchandise imported into the United States. The 
customs value of the merchandise, on which a customs duty is imposed, is 
determined to be $10,000. Subsequent to the date of importation of the 
merchandise, Y grants to X a rebate of $1,000 of the purchase price. The 
value of the merchandise, for customs purposes, is not decreased by the 
rebate paid to X by Y. Notwithstanding the fact that X correctly 
reported and paid customs duty on a value of $10,000 and that its 
limitation on basis or inventory cost under this section is $10,000, X 
may not claim a basis or inventory cost in the merchandise in excess of 
$9,000. See I.R.C. section 1012; and section 1.471-2.
    Example 6. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays 
$5,000 to Y for merchandise imported into the United States. The 
merchandise is not subject to a customs duty or is subject to a free 
rate of duty and is valued by customs solely for statistical purposes. 
Accordingly, pursuant to paragraph (c)(1) of this section, the 
merchandise is not subject to the provisions of section 1059A or this 
section.
    Example 7. Assume the same facts as in Example 6, except that the 
merchandise is subject to a customs duty based on value and that the 
customs value (taking into account no costs other than the value of the 
goods) is determined to be $5,000. Assume further that the $5,000 
payment is only for the value of the goods, no other cost is reflected 
in that payment, and only the $5,000 payment to Y is reflected in X's 
inventory cost or basis prior to inclusion of any other amounts properly 
included in inventory or cost basis. Pursuant to paragraph (c)(6) of 
this section, X, by demonstrating these facts is deemed to meet the 
requirements of this section and section 1059A.
    Example 8. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays $9 
to Y for merchandise imported into the United States and an additional 
$1 for ocean freight. The customs value of the article does not include 
the $l paid for ocean freight. Furthermore, for customs purposes the 
value is calculated pursuant to computed value and is determined to be 
$8. For purposes of computing the limitation on its inventory cost for 
the article under section 1059A and this section, X is permitted, under 
paragraph (c)(2) of this section, to increase the customs value ($8) by 
the amount it paid for ocean freight ($1). Thus, the inventory cost 
claimed by X in the article may not exceed $9.

    (9) Averaged customs values. In cases of transactions in which (i) 
an appropriate transfer price is properly determined for tax purposes by 
reference to events occurring after importation, (ii) the value for 
customs purposes of one article is higher and of a second article is 
lower than the actual transaction values, (iii) the relevant articles 
have been appraised on the basis of a value estimated at the time of 
importation in accordance with customs regulations, and (iv) the entries 
have been liquidated upon importation, the section 1059A limitation on 
the undervalued article may be increased up to the amount of actual 
transaction value by the amount of the duty overpaid on

[[Page 212]]

the overvalued article times a fraction the numerator of which is ``1'' 
and the denominator of which is the rate of duty on the undervalued 
article. This paragraph (c)(9) applies exclusively to cases of property 
imported in transactions that are open for tax purposes in which the 
actual transaction value cannot be determined and the entry has been 
liquidated for customs purposes on the basis of a value estimated at the 
time of importation in accordance with customs regulations; in these 
cases, the property is appropriately valued for tax purposes by 
reference to a formula, in existence at the time of importation, based 
on subsequent events and valued for customs purposes by a different 
formula. This paragraph (c)(9) does not apply where customs value is 
correctly determined for purposes of liquidating the entry and where the 
customs value is subsequently adjusted for tax purposes, for example by 
a rebate, under paragraph (c)(2) of this section. The application of 
paragraph (c)(9) may be illustrated by the following example:

    Example: Corporation X, a United States taxpayer, and Y Corporation 
are members of a group of controlled corporations. X purchases Articles 
A and B from Y on consignment and imports the Articles into the United 
States. The purchase price paid by X will be determined as a percentage 
of the sale prices that X realizes. Rather than deferring liquidation, 
customs liquidates the entry on the basis of estimated values and the 
customs duties are paid by X. Ultimately, it is determined that Article 
A was undervalued and Article B was overvalued by X for customs 
purposes. The section 1059A limitation for Article A is computed as 
follows:

------------------------------------------------------------------------
                                                   Article A   Article B
------------------------------------------------------------------------
Finally-determined customs value................          $9          $9
Transaction value...............................         $10          $5
Duty rate.......................................         10%          5%
Customs duty paid...............................        $.90        $.45
Duty overpaid or (underpaid)....................      ($.10)        $.20
------------------------------------------------------------------------

    The section 1059A limitation on Article A may be increased by the 
amount of the duty over-paid on Article B, $.20, times 1/.10, up to the 
amount of the transaction value. Therefore, the section 1059A limitation 
on Article A is $9.00 plus $1.00, or a total of $10.00. The section 
1059A limitation on Article B is reduced (but never below transaction 
value) by $2.00 to $7.00.

    (d) Finality of customs value and of other determinations of the 
U.S. Customs Service. For purposes of section 1059A and this section, a 
taxpayer is bound by the finally-determined customs value and by every 
final determination made by the U.S. Customs Service, including, but not 
limited to, dutiable value, the value attributable to the cost or value 
of products of the United States, and classification of the product for 
purposes of imposing any duty. The customs value is considered to be 
finally determined, and all U.S. Customs Service determinations are 
considered final, when liquidation of the entry becomes final. For this 
purpose, the term liquidation means the ascertainment of the customs 
duties occurring on the entry of the property, and liquidation of the 
entry is considered to become final after 90 days following notice of 
liquidation to the importer, unless a protest is filed. If the importer 
files a protest, the customs value will be considered finally determined 
and all other U.S. Customs Service determinations will be considered 
final either when a decision by the Customs Service on the protest is 
not contested after expiration of the period allowed to contest the 
decision or when a judgment of the Court of International Trade becomes 
final. For purposes of this section, any adjustments to the customs 
value resulting from a petition under 19 U.S.C. section 1516 (requests 
by interested parties unrelated to the importer for redetermination of 
the appraised value, classification, or the rate of duty imposed on 
imported merchandise) or reliquidation under 19 U.S.C. section 1521 
(reliquidation by the Customs Service upon a finding that fraud was 
involved in the original liquidation) will not be taken into account. 
However, reliquidation under 19 U.S.C. section 1501 (voluntary 
reliquidation by the Customs Service within 90 days of the original 
liquidation to correct errors in appraisement, classification, or any 
element entering into a liquidation or reliquidation) or reliquidation 
under 19 U.S.C. section 1520(c)(1) (to correct a clerical error, mistake 
of fact, or other inadvertance within one year of a liquidation or 
reliquidation) will be taken into account in the same manner as, and 
take the

[[Page 213]]

place of, the original liquidation in determining customs value.
    (e) Drawbacks. For purposes of this section, a drawback, that is, a 
refund or remission (in whole or in part) of a customs duty because of a 
particular use made (or to be made) of the property on which the duty 
was assessed or collected, shall not affect the determination of the 
customs value of the property.
    (f) Effective date. Property imported by a taxpayer is subject to 
section 1059A and this section if the entry documentation required to be 
filed to obtain the release of the property from the custody of the 
United States Customs Service was filed after March 18, 1986. Section 
1059A and this section will not apply to imported property where (1) the 
entry documentation is filed prior to September 3, 1987; and (2) the 
importation was liquidated under the circumstances described in 
paragraph (c)(9) of this section.

[T.D. 8260, 54 FR 37311, Sept. 8, 1989]



Sec.  1.1060-1  Special allocation rules for certain asset acquisitions.

    (a) Scope--(1) In general. This section prescribes rules relating to 
the requirements of section 1060, which, in the case of an applicable 
asset acquisition, requires the transferor (the seller) and the 
transferee (the purchaser) each to allocate the consideration paid or 
received in the transaction among the assets transferred in the same 
manner as amounts are allocated under section 338(b)(5) (relating to the 
allocation of adjusted grossed-up basis among the assets of the target 
corporation when a section 338 election is made). In the case of an 
applicable asset acquisition described in paragraph (b)(1) of this 
section, sellers and purchasers must allocate the consideration under 
the residual method as described in Sec. Sec.  1.338-6 and 1.338-7 in 
order to determine, respectively, the amount realized from, and the 
basis in, each of the transferred assets. For rules relating to 
distributions of partnership property or transfers of partnership 
interests which are subject to section 1060(d), see Sec.  1.755-2T.
    (2) Effective dates--(i) In general. The provisions of this section 
apply to any asset acquisition occurring after March 15, 2001. However, 
paragraphs (b)(9) and (c)(5) of this section apply only to applicable 
asset acquisitions occurring on or after April 10, 2006. A purchaser or 
a seller may make an irrevocable election to apply the rules in 
Sec. Sec.  1.338-11 (including the applicable provisions in Sec. Sec.  
1.197-2(g)(5), 1.381(c)(22)-1, 846 and 1060) to an applicable asset 
acquisition occurring before April 10, 2006. Paragraph (a)(2)(ii) of 
this section describes the time and manner of the election for the 
purchaser and paragraph (a)(2)(iii) of this section prescribes the time 
and manner of the election for the seller. The seller may make the 
election to apply the regulations retroactively without regard to 
whether the purchaser also makes the election. For rules applicable to 
asset acquisitions on or before March 15, 2001, see Sec.  1.1060-1T in 
effect before March 16, 2001 (see 26 CFR part 1 revised April 1, 2000).
    (ii) Time and manner of making the election for the purchaser. The 
purchaser may make an election described in this paragraph (a)(2) by 
attaching a statement to its original or amended income tax return for 
the taxable year that includes the applicable asset sale. The statement 
must be entitled ``Election to Retroactively Apply the Rules in Sec.  
1.338-11 (Including the Applicable Provisions in Sec. Sec.  1.197-
2(g)(5), 1.381(c)(22)-1, 846 and 1060) to an Applicable Asset 
Acquisition Completed Before April 10, 2006'' and must include the 
following information--
    (A) The name and E.I.N. for the purchaser; and
    (B) The following declaration (or a substantially similar 
declaration): The purchaser has amended its income tax returns for the 
taxable year that includes the applicable asset acquisition and for all 
affected subsequent years to reflect the rules in Sec.  1.338-11 
(Including the Applicable Provisions in Sec. Sec.  1.197-2(g)(5), 
1.381(c)(22)-1,846 and 1060).
    (iii) Time and manner of making the election for the seller. The 
seller may make an election described in this paragraph (a)(2) by 
attaching a statement to its original or amended income tax return for 
the taxable year that includes the applicable asset sale. The statement 
must be entitled ``Election to retroactively apply the rules in

[[Page 214]]

Sec.  1.338-11 (including the applicable provisions in Sec. Sec.  1.197-
2(g)(5), 1.381(c)(22)-1, 846 and 1060) to an applicable asset 
acquisition completed before April 10, 2006'' and must include the 
following information--
    (A) The name and E.I.N. for the seller; and
    (B) The following declaration (or a substantially similar 
declaration): The seller has amended its income tax returns for the 
taxable year that includes the applicable asset acquisition and for all 
affected subsequent years to reflect the rules in Sec.  1.338-11 
(including the applicable provisions in Sec. Sec.  1.197-2(g)(5), 
1.381(c)(22)-1, 846 and 1060).
    (3) Outline of topics. In order to facilitate the use of this 
section, this paragraph (a)(3) lists the major paragraphs in this 
section as follows:

(a) Scope.
(1) In general.
(2) Effective date.
(3) Outline of topics.
(b) Applicable asset acquisition.
(1) In general.
(2) Assets constituting a trade or business.
(i) In general.
(ii) Goodwill or going concern value.
(iii) Factors indicating goodwill or going concern value.
(3) Examples.
(4) Asymmetrical transfers of assets.
(5) Related transactions.
(6) More than a single trade or business.
(7) Covenant entered into by the seller.
(8) Partial non-recognition exchanges.
(9) Insurance business.
(c) Allocation of consideration among assets under the residual method.
(1) Consideration.
(2) Allocation of consideration among assets.
(3) Certain costs.
(4) Effect of agreement between parties.
(5) Insurance business.
(d) Examples.
(e) Reporting requirements.
(1) Applicable asset acquisitions.
(i) In general.
(ii) Time and manner of reporting.
(A) In general.
(B) Additional reporting requirement.
(C) Election described in Sec.  1.338-6(c)(5).
(2) Transfers of interests in partnerships.

    (b) Applicable asset acquisition--(1) In general. An applicable 
asset acquisition is any transfer, whether direct or indirect, of a 
group of assets if the assets transferred constitute a trade or business 
in the hands of either the seller or the purchaser and, except as 
provided in paragraph (b)(8) of this section, the purchaser's basis in 
the transferred assets is determined wholly by reference to the 
purchaser's consideration.
    (2) Assets constituting a trade or business--(i) In general. For 
purposes of this section, a group of assets constitutes a trade or 
business if--
    (A) The use of such assets would constitute an active trade or 
business under section 355; or
    (B) Its character is such that goodwill or going concern value could 
under any circumstances attach to such group.
    (ii) Goodwill or going concern value. Goodwill is the value of a 
trade or business attributable to the expectancy of continued customer 
patronage. This expectancy may be due to the name or reputation of a 
trade or business or any other factor. Going concern value is the 
additional value that attaches to property because of its existence as 
an integral part of an ongoing business activity. Going concern value 
includes the value attributable to the ability of a trade or business 
(or a part of a trade or business) to continue functioning or generating 
income without interruption notwithstanding a change in ownership. It 
also includes the value that is attributable to the immediate use or 
availability of an acquired trade or business, such as, for example, the 
use of the revenues or net earnings that otherwise would not be received 
during any period if the acquired trade or business were not available 
or operational.
    (iii) Factors indicating goodwill or going concern value. In making 
the determination in this paragraph (b)(2), all the facts and 
circumstances surrounding the transaction are taken into account. 
Whether sufficient consideration is available to allocate to goodwill or 
going concern value after the residual method is applied is not relevant 
in determining whether goodwill or going concern value could attach to a 
group of assets. Factors to be considered include--
    (A) The presence of any intangible assets (whether or not those 
assets are section 197 intangibles), provided, however, that the 
transfer of such an asset in the absence of other assets will not

[[Page 215]]

be a trade or business for purposes of section 1060;
    (B) The existence of an excess of the total consideration over the 
aggregate book value of the tangible and intangible assets purchased 
(other than goodwill and going concern value) as shown in the financial 
accounting books and records of the purchaser; and
    (C) Related transactions, including lease agreements, licenses, or 
other similar agreements between the purchaser and seller (or managers, 
directors, owners, or employees of the seller) in connection with the 
transfer.
    (3) Examples. The following examples illustrate paragraphs (b)(1) 
and (2) of this section:

    Example 1. S is a high grade machine shop that manufactures 
microwave connectors in limited quantities. It is a successful company 
with a reputation within the industry and among its customers for 
manufacturing unique, high quality products. Its tangible assets consist 
primarily of ordinary machinery for working metal and plating. It has no 
secret formulas or patented drawings of value. P is a company that 
designs, manufactures, and markets electronic components. It wants to 
establish an immediate presence in the microwave industry, an area in 
which it previously has not been engaged. P is acquiring assets of a 
number of smaller companies and hopes that these assets will 
collectively allow it to offer a broad product mix. P acquires the 
assets of S in order to augment its product mix and to promote its 
presence in the microwave industry. P will not use the assets acquired 
from S to manufacture microwave connectors. The assets transferred are 
assets that constitute a trade or business in the hands of the seller. 
Thus, P's purchase of S's assets is an applicable asset acquisition. The 
fact that P will not use the assets acquired from S to continue the 
business of S does not affect this conclusion.
    Example 2. S, a sole proprietor who operates a car wash, both leases 
the building housing the car wash and sells all of the car wash 
equipment to P. S's use of the building and the car wash equipment 
constitute a trade or business. P begins operating a car wash in the 
building it leases from S. Because the assets transferred together with 
the asset leased are assets which constitute a trade or business, P's 
purchase of S's assets is an applicable asset acquisition.
    Example 3. S, a corporation, owns a retail store business in State X 
and conducts activities in connection with that business enterprise that 
meet the active trade or business requirement of section 355. P is a 
minority shareholder of S. S distributes to P all the assets of S used 
in S's retail business in State X in complete redemption of P's stock in 
S held by P. The distribution of S's assets in redemption of P's stock 
is treated as a sale or exchange under sections 302(a) and 302(b)(3), 
and P's basis in the assets distributed to it is determined wholly by 
reference to the consideration paid, the S stock. Thus, S's distribution 
of assets constituting a trade or business to P is an applicable asset 
acquisition.
    Example 4. S is a manufacturing company with an internal financial 
bookkeeping department. P is in the business of providing a financial 
bookkeeping service on a contract basis. As part of an agreement for P 
to begin providing financial bookkeeping services to S, P agrees to buy 
all of the assets associated with S's internal bookkeeping operations 
and provide employment to any of S's bookkeeping department employees 
who choose to accept a position with P. In addition to selling P the 
assets associated with its bookkeeping operation, S will enter into a 
long term contract with P for bookkeeping services. Because assets 
transferred from S to P, along with the related contract for bookkeeping 
services, are a trade or business in the hands of P, the sale of the 
bookkeeping assets from S to P is an applicable asset acquisition.

    (4) Asymmetrical transfers of assets. A purchaser is subject to 
section 1060 if--
    (i) Under general principles of tax law, the seller is not treated 
as transferring the same assets as the purchaser is treated as 
acquiring;
    (ii) The assets acquired by the purchaser constitute a trade or 
business; and
    (iii) Except as provided in paragraph (b)(8) of this section, the 
purchaser's basis in the transferred assets is determined wholly by 
reference to the purchaser's consideration.
    (5) Related transactions. Whether the assets transferred constitute 
a trade or business is determined by aggregating all transfers from the 
seller to the purchaser in a series of related transactions. Except as 
provided in paragraph (b)(8) of this section, all assets transferred 
from the seller to the purchaser in a series of related transactions are 
included in the group of assets among which the consideration paid or 
received in such series is allocated under the residual method. The 
principles of Sec.  1.338-1(c) are also applied in determining which 
assets are included in the group of assets among

[[Page 216]]

which the consideration paid or received is allocated under the residual 
method.
    (6) More than a single trade or business. If the assets transferred 
from a seller to a purchaser include more than one trade or business, 
then, in applying this section, all of the assets transferred (whether 
or not transferred in one transaction or a series of related 
transactions and whether or not part of a trade or business) are treated 
as a single trade or business.
    (7) Covenant entered into by the seller. If, in connection with an 
applicable asset acquisition, the seller enters into a covenant (e.g., a 
covenant not to compete) with the purchaser, that covenant is treated as 
an asset transferred as part of a trade or business.
    (8) Partial non-recognition exchanges. A transfer may constitute an 
applicable asset acquisition notwithstanding the fact that no gain or 
loss is recognized with respect to a portion of the group of assets 
transferred. All of the assets transferred, including the non-
recognition assets, are taken into account in determining whether the 
group of assets constitutes a trade or business. The allocation of 
consideration under paragraph (c) of this section is done without taking 
into account either the non-recognition assets or the amount of money or 
other property that is treated as transferred in exchange for the non-
recognition assets (together, the non-recognition exchange property). 
The basis in and gain or loss recognized with respect to the non-
recognition exchange property are determined under such rules as would 
otherwise apply to an exchange of such property. The amount of the money 
and other property treated as exchanged for non-recognition assets is 
the amount by which the fair market value of the non-recognition assets 
transferred by one party exceeds the fair market value of the non-
recognition assets transferred by the other (to the extent of the money 
and the fair market value of property transferred in the exchange). The 
money and other property that are treated as transferred in exchange for 
the non-recognition assets (and which are not included among the assets 
to which section 1060 applies) are considered to come from the following 
assets in the following order: first from Class I assets, then from 
Class II assets, then from Class III assets, then from Class IV assets, 
then from Class V assets, then from Class VI assets, and then from Class 
VII assets. For this purpose, liabilities assumed (or to which a non-
recognition exchange property is subject) are treated as Class I assets. 
See Example 1 in paragraph (d) of this section for an example of the 
application of section 1060 to a single transaction which is, in part, a 
non-recognition exchange.
    (9) Insurance business. The mere reinsurance of insurance contracts 
by an insurance company is not an applicable asset acquisition, even if 
it enables the reinsurer to establish a customer relationship with the 
owners of the reinsured contracts. However, a transfer of an insurance 
business is an applicable asset acquisition if the purchaser acquires 
significant business assets, in addition to insurance contracts, to 
which goodwill and going concern value could attach. For rules regarding 
the treatment of an applicable asset acquisition of an insurance 
business, see paragraph (c)(5) of this section.
    (c) Allocation of consideration among assets under the residual 
method--(1) Consideration. The seller's consideration is the amount, in 
the aggregate, realized from selling the assets in the applicable asset 
acquisition under section 1001(b). The purchaser's consideration is the 
amount, in the aggregate, of its cost of purchasing the assets in the 
applicable asset acquisition that is properly taken into account in 
basis.
    (2) Allocation of consideration among assets. For purposes of 
determining the seller's amount realized for each of the assets sold in 
an applicable asset acquisition, the seller allocates consideration to 
all the assets sold by using the residual method under Sec. Sec.  1.338-
6 and 1.338-7, substituting consideration for ADSP. For purposes of 
determining the purchaser's basis in each of the assets purchased in an 
applicable asset acquisition, the purchaser allocates consideration to 
all the assets purchased by using the residual method under Sec. Sec.  
1.338-6 and 1.338-7, substituting consideration for AGUB. In allocating 
consideration, the rules set forth in paragraphs (c)(3) and (4) of this 
section

[[Page 217]]

apply in addition to the rules in Sec. Sec.  1.338-6 and 1.338-7.
    (3) Certain costs. The seller and purchaser each adjusts the amount 
allocated to an individual asset to take into account the specific 
identifiable costs incurred in transferring that asset in connection 
with the applicable asset acquisition (e.g., real estate transfer costs 
or security interest perfection costs). Costs so allocated increase, or 
decrease, as appropriate, the total consideration that is allocated 
under the residual method. No adjustment is made to the amount allocated 
to an individual asset for general costs associated with the applicable 
asset acquisition as a whole or with groups of assets included therein 
(e.g., non-specific appraisal fees or accounting fees). These latter 
amounts are taken into account only indirectly through their effect on 
the total consideration to be allocated. If an election described in 
Sec.  1.338-6(c)(5) is made with respect to an applicable asset 
acquisition, any allocation of costs pursuant to this paragraph (c)(3) 
shall be made as if such election had not been made. The preceding 
sentence applies to applicable asset acquisitions occurring on or after 
September 11, 2007. For applicable asset acquisitions occurring before 
September 11, 2007, and on or after September 15, 2004, see Sec.  
1.1060-1T as contained in 26 CFR Part 1 in effect on April 1, 2007. For 
applicable asset acquisitions occurring before September 15, 2004, see 
Sec. Sec.  1.338-6 and 1.1060-1 as contained in 26 CFR Part 1 in effect 
on April 1, 2004.
    (4) Effect of agreement between parties. If, in connection with an 
applicable asset acquisition, the seller and purchaser agree in writing 
as to the allocation of any amount of consideration to, or as to the 
fair market value of, any of the assets, such agreement is binding on 
them to the extent provided in this paragraph (c)(4). Nothing in this 
paragraph (c)(4) restricts the Commissioner's authority to challenge the 
allocations or values arrived at in an allocation agreement. This 
paragraph (c)(4) does not apply if the parties are able to refute the 
allocation or valuation under the standards set forth in Commissioner v. 
Danielson, 378 F.2d 771 (3d Cir.), cert. denied, 389 U.S. 858 (1967) (a 
party wishing to challenge the tax consequences of an agreement as 
construed by the Commissioner must offer proof that, in an action 
between the parties to the agreement, would be admissible to alter that 
construction or show its unenforceability because of mistake, undue 
influence, fraud, duress, etc.).
    (5) Insurance business. If the trade or business transferred is an 
insurance business, the rules of this paragraph (c) are modified by the 
principles of Sec.  1.338-11(a) through (d). However, in transactions 
governed by section 1060, such principles apply even if the transfer of 
the trade or business is effected in whole or in part through indemnity 
reinsurance rather than assumption reinsurance, and, for the insurer or 
reinsurer, an insurance contract (including an annuity or reinsurance 
contract) is a Class VI asset regardless of whether it is a section 197 
intangible. In addition, the principles of Sec.  1.338-11(f) through (h) 
apply if the transfer occurs in connection with the complete liquidation 
of the transferor.
    (d) Examples. The following examples illustrate this section:

    Example 1. (i) On January 1, 2001, A transfers assets X, Y, and Z to 
B in exchange for assets D, E, and F plus $1,000 cash.
    (ii) Assume the exchange of assets constitutes an exchange of like-
kind property to which section 1031 applies. Assume also that goodwill 
or going concern value could under any circumstances attach to each of 
the DEF and XYZ groups of assets and, therefore, each group constitutes 
a trade or business under section 1060.
    (iii) Assume the fair market values of the assets and the amount of 
money transferred are as follows:

------------------------------------------------------------------------
                                                                  Fair
                             Asset                               market
                                                                  value
------------------------------------------------------------------------
By A:
  X...........................................................     $ 400
  Y...........................................................       400
  Z...........................................................       200
                                                               ---------
    Total.....................................................     1,000
                                                               =========
By B:
  D...........................................................        40
  E...........................................................        30
  F...........................................................        30
  Cash (amount)...............................................     1,000
                                                               ---------
    Total.....................................................     1,100
------------------------------------------------------------------------


[[Page 218]]

    (iv) Under paragraph (b)(8) of this section, for purposes of 
allocating consideration under paragraph (c) of this section, the like-
kind assets exchanged and any money or other property that are treated 
as transferred in exchange for the like-kind property are excluded from 
the application of section 1060.
    (v) Since assets X, Y, and Z are like-kind property, they are 
excluded from the application of the section 1060 allocation rules.
    (vi) Since assets D, E, and F are like-kind property, they are 
excluded from the application of the section 1060 allocation rules. 
Thus, the allocation rules of section 1060 do not apply in determining 
B's gain or loss with respect to the disposition of assets D, E, and F, 
and the allocation rules of section 1060 and paragraph (c) of this 
section are not applied to determine A's bases of assets D, E, and F. In 
addition, $900 of the $1,000 cash B gave to A for A's like-kind assets 
(X, Y, and Z) is treated as transferred in exchange for the like-kind 
property in order to equalize the fair market values of the like-kind 
assets. Therefore, $900 of the cash is excluded from the application of 
the section 1060 allocation rules.
    (vii) $100 of the cash is allocated under section 1060 and paragraph 
(c) of this section.
    (viii) A received $100 that must be allocated under section 1060 and 
paragraph (c) of this section. Since A transferred no Class I, II, III, 
IV, V, or VI assets to which section 1060 applies, in determining its 
amount realized for the part of the exchange to which section 1031 does 
not apply, the $100 is allocated to Class VII assets (goodwill and going 
concern value).
    (ix) B gave A $100 that must be allocated under section 1060 and 
paragraph (c) of this section. Since B received from A no Class I, II, 
III, IV, V, or VI assets to which section 1060 applies, the $100 
consideration is allocated by B to Class VII assets (goodwill and going 
concern value).
    Example 2. (i) On January 1, 2001, S, a sole proprietor, sells to P, 
a corporation, a group of assets that constitutes a trade or business 
under paragraph (b)(2) of this section. S, who plans to retire 
immediately, also executes in P's favor a covenant not to compete. P 
pays S $3,000 in cash and assumes $1,000 in liabilities. Thus, the total 
consideration is $4,000.
    (ii) On the purchase date, P and S also execute a separate agreement 
that states that the fair market values of the Class II, Class III, 
Class V, and Class VI assets S sold to P are as follows:

------------------------------------------------------------------------
                                                                  Fair
        Asset class                        Asset                 market
                                                                  value
------------------------------------------------------------------------
II.........................  Actively traded securities.......      $500
                                                               ---------
                                Total Class II................       500
                                                               =========
III........................  Accounts receivable..............       200
                                                               ---------
                                Total Class III...............       200
                                                               =========
V..........................  Furniture and fixtures...........       800
                             Building.........................       800
                             Land.............................       200
                             Equipment........................       400
                                                               ---------
                                Total Class V.................     2,200
                                                               =========
VI.........................  Covenant not to compete..........       900
                                                               ---------
                                Total Class VI................       900
------------------------------------------------------------------------

    (iii) P and S each allocate the consideration in the transaction 
among the assets transferred under paragraph (c) of this section in 
accordance with the agreed upon fair market values of the assets, so 
that $500 is allocated to Class II assets, $200 is allocated to the 
Class III asset, $2,200 is allocated to Class V assets, $900 is 
allocated to Class VI assets, and $200 ($4,000 total consideration less 
$3,800 allocated to assets in Classes II, III, V, and VI) is allocated 
to the Class VII assets (goodwill and going concern value).
    (iv) In connection with the examination of P's return, the 
Commissioner, in determining the fair market values of the assets 
transferred, may disregard the parties' agreement. Assume that the 
Commissioner correctly determines that the fair market value of the 
covenant not to compete was $500. Since the allocation of consideration 
among Class II, III, V, and VI assets results in allocation up to the 
fair market value limitation, the $600 of unallocated consideration 
resulting from the Commissioner's redetermination of the value of the 
covenant not to compete is allocated to Class VII assets (goodwill and 
going concern value).

    (e) Reporting requirements--(1) Applicable asset acquisitions--(i) 
In general. Unless otherwise excluded from this requirement by the 
Commissioner, the seller and the purchaser in an applicable asset 
acquisition each must report information concerning the amount of 
consideration in the transaction and its allocation among the assets 
transferred. They also must report information concerning subsequent 
adjustments to consideration.
    (ii) Time and manner of reporting--(A) In general. The seller and 
the purchaser each must file asset acquisition statements on Form 8594, 
``Asset Allocation Statement,'' with their income tax returns or returns 
of income for the taxable year that includes the first date

[[Page 219]]

assets are sold pursuant to an applicable asset acquisition. This 
reporting requirement applies to all asset acquisitions described in 
this section. For reporting requirements relating to asset acquisitions 
occurring before March 16, 2001, as described in paragraph (a)(2) of 
this section, see the temporary regulations under section 1060 in effect 
prior to March 16, 2001 (see 26 CFR part 1 revised April 1, 2000).
    (B) Additional reporting requirement. When an increase or decrease 
in consideration is taken into account after the close of the first 
taxable year that includes the first date assets are sold in an 
applicable asset acquisition, the seller and the purchaser each must 
file a supplemental asset acquisition statement on Form 8594 with the 
income tax return or return of income for the taxable year in which the 
increase (or decrease) is properly taken into account.
    (C) Election described in Sec.  1.338-6(c)(5)--(1) Availability. The 
election described in Sec.  1.338-6(c)(5) is available in respect of an 
applicable asset acquisition provided that the requirements of that 
section are satisfied. Such election may be made by the seller, 
regardless of whether the purchaser also makes the election, and may be 
made by the purchaser, regardless of whether the seller also makes the 
election.
    (2) Time and manner of making election. The election described in 
Sec.  1.338-6(c)(5) is made by taking a position on a timely filed 
original tax return for the taxable year of the applicable asset 
acquisition that is consistent with having made the election.
    (3) Irrevocability of election. The election described in Sec.  
1.338-6(c)(5) is irrevocable.
    (4) Effective/applicability date. This paragraph (e)(1)(ii)(C) 
applies to applicable asset acquisitions occurring on or after September 
11, 2007. For applicable asset acquisitions occurring before September 
11, 2007 and on or after September 15, 2004, see Sec.  1.1060-1T as 
contained in 26 CFR Part 1 in effect on April 1, 2007. For applicable 
asset acquisitions occurring before September 15, 2004, see Sec. Sec.  
1.338-6 and 1.1060-1 as contained in 26 CFR Part 1 in effect on April 1, 
2004.
    (2) Transfers of interests in partnerships. For reporting 
requirements relating to the transfer of a partnership interest, see 
Sec.  1.755-1(d).

[T.D. 8940, 66 FR 9954, Feb. 13, 2001, as amended by T.D. 9059, 68 FR 
34299, June 9, 2003; T.D. 9158, 69 FR 55742, Sept. 16, 2004; T.D. 9257, 
71 FR 18006, Apr. 10, 2006; T.D. 9358, 72 FR 51706, Sept. 11, 2007; T.D. 
9377, 73 FR 3874, Jan. 23, 2008; T.D. 9377, 73 FR 14386, Mar. 18, 2008]



Sec.  1.1061-0  Table of contents.

    This section lists the captions that appear in Sec. Sec.  1.1061-1 
through 1.1061-6.

                Sec.  1.1061-1 Section 1061 definitions.

    (a) Definitions.
    (b) Applicability date.

Sec.  1.1061-2 Applicable partnership interests and applicable trades or 
                               businesses.

    (a) API rules and examples.
    (1) Rules.
    (i) An API remains an API.
    (ii) Application of section 1061 to Unrealized API Gains and Losses.
    (iii) API Gains and Losses retain their character.
    (iv) Substantial services by the Owner Taxpayer, Passthrough 
Taxpayer or any Related Person.
    (v) Grantor trusts and entities disregarded as separate from their 
owners.
    (2) Examples.
    (b) Application of the ATB Activity Test.
    (1) In general.
    (i) Rules for applying the ATB Activity Test.
    (A) Aggregate Specified Actions taken into account.
    (B) Raising or Returning Capital Actions and Investing or Developing 
Actions are not both required to be taken in each taxable year.
    (C) Combined conduct by multiple related entities taken into 
account.
    (ii) Developing Specified Assets.
    (iii) Partnerships.
    (2) Examples.
    (c) Applicability date.

         Sec.  1.1061-3 Exceptions to the definition of an API.

    (a) A partnership interest held by an employee of another entity not 
conducting an ATB.
    (b) Partnership interest held by a corporation.
    (1) In general.
    (2) Treatment of interests held by an S corporation or a qualified 
electing fund.
    (c) Capital Interest Gains and Losses.
    (1) In general.
    (2) Capital Interest Gains and Losses defined.

[[Page 220]]

    (3) General rules for determining Capital Interest Allocations.
    (i) Commensurate with capital contributed.
    (ii) In a similar manner.
    (A) Relevant factors.
    (B) Clear identification requirement.
    (iii) Reinvestment of API Gain.
    (iv) Unrelated Non-Service Partner requirement.
    (v) Proceeds of certain loans not taken into account for Capital 
Interest Allocation purposes.
    (A) General rule.
    (B) Recourse liability.
    (vi) Items that are not included in Capital Interest Allocations.
    (4) Capital Interest Disposition Amounts.
    (i) In general.
    (ii) Determination of the Capital Interest Disposition Amount.
    (5) Capital Interest Allocations made by a Passthrough Entity that 
is an API Holder.
    (6) Examples.
    (d) Partnership interest acquired by purchase by an unrelated 
person.
    (1) Acquirer not a Related Person.
    (2) Section 1061(d) not applicable.
    (3) Acquirer not a service provider.
    (e) [Reserved]
    (f) Applicability date.
    (1) General rule.
    (2) Partnership interest held by an S corporation.
    (3) Partnership interest held by a PFIC with respect to which the 
shareholder has a QEF election in effect.

                Sec.  1.1061-4 Section 1061 computations.

    (a) Computations.
    (1) Recharacterization Amount.
    (2) One Year Gain Amount and Three Year Gain Amount.
    (i) One Year Gain Amount.
    (ii) Three Year Gain Amount.
    (3) API One Year Distributive Share Amount and API Three Year 
Distributive Share Amount.
    (i) API One Year Distributive Share Amount.
    (ii) API Three Year Distributive Share Amount.
    (4) API One Year Disposition Amount and API Three Year Disposition 
Amount.
    (i) API One Year Disposition Amount.
    (ii) API Three Year Disposition Amount.
    (b) Special rules for calculating the One Year Gain Amount and the 
Three Year Gain Amount.
    (1) One Year Gain Amount equals zero or less.
    (2) Three Year Gain Amount equals zero or less.
    (3) One Year Gain Amount less than Three Year Gain Amount.
    (4) Installment sale gain.
    (5) Special rules for capital gain dividends from regulated 
investment companies (RICs) and real estate investment trusts (REITs).
    (i) API One Year Distributive Share Amount.
    (ii) API Three Year Distributive Share Amount.
    (iii) Loss on sale or exchange of stock.
    (6) Pro rata share of qualified electing fund (QEF) net capital 
gain.
    (i) One year QEF net capital gain.
    (ii) Three year QEF net capital gain adjustment.
    (7) Items not taken into account for purposes of section 1061.
    (8) Holding period determination.
    (i) Determination of holding period for purposes of the Three Year 
Gain Amount.
    (ii) Relevant holding period.
    (9) Lookthrough Rule for certain API dispositions.
    (i) Determination that the Lookthrough Rule applies.
    (A) In general.
    (B) Determination that the Lookthrough Rule applies to the 
disposition of a Passthrough Interest.
    (ii) Application of the Lookthrough Rule.
    (10) Section 83.
    (c) Examples.
    (1) Recharacterization rules.
    (2) Special rules examples.
    (d) Applicability date.

      Sec.  1.1061-5 Section 1061(d) transfers to related persons.

    (a) In general.
    (b) Transfer.
    (c) Section 1061(d) Recharacterization Amount.
    (d) Special rules.
    (e) Section 1061(d) Related Person.
    (f) Examples.
    (g) Applicability date.

                     Sec.  1.1061-6 Reporting rules.

    (a) Owner Taxpayer filing requirements.
    (1) In general.
    (2) Failure to obtain information.
    (b) Passthrough Entity filing requirements and reporting.
    (1) Requirement to file information with the IRS and to furnish 
information to API Holder.
    (2) Requirement to request, furnish, and file information in tiered 
structures.
    (i) Requirement to request information.
    (ii) Requirement to furnish and file information.
    (iii) Timing of requesting and furnishing information.
    (A) Requesting information.
    (B) Furnishing information.
    (iv) Manner of requesting information.
    (v) Recordkeeping requirement.

[[Page 221]]

    (vi) Passthrough Entity is not furnished information to meet its 
reporting obligations under paragraph (b)(1) of this section.
    (vii) Filing requirements.
    (viii) Penalties.
    (c) Regulated investment company (RIC) and real estate investment 
trust (REIT) reporting.
    (1) Section 1061 disclosures.
    (i) One Year Amounts Disclosure.
    (ii) Three Year Amounts Disclosure.
    (2) Pro rata disclosures.
    (3) Report to shareholders.
    (d) Qualified electing fund (QEF) reporting.
    (e) Applicability date.

[T.D. 9945, 86 FR 5480, Jan. 19, 2021]



Sec.  1.1061-1  Section 1061 definitions.

    (a) Definitions. The following definitions apply solely for purposes 
of this section and Sec. Sec.  1.1061-2 through 1.1061-6.
    API Gains and Losses are any long-term capital gains and capital 
losses with respect to an API and include:
    (i) The API One Year Distributive Share Amount as defined in Sec.  
1.1061-4(a)(3)(i);
    (ii) The API Three Year Distributive Share Amount as defined in 
Sec.  1.1061-4(a)(3)(ii);
    (iii) The API One Year Disposition Amount as defined in Sec.  
1.1061-4(a)(4)(i);
    (iv) The API Three Year Disposition Amount as defined in Sec.  
1.1061-4(a)(4)(ii); and
    (v) Capital gains or losses from the disposition of Distributed API 
Property.
    API Holder is a person who holds an API.
    Applicable Partnership Interest (API) means any interest in a 
partnership which, directly or indirectly, is transferred to (or is held 
by) an Owner Taxpayer or Passthrough Taxpayer in connection with the 
performance of substantial services by the Owner Taxpayer or by a 
Passthrough Taxpayer, or by any Related Person, including services 
performed as an employee, in any ATB unless an exception in Sec.  
1.1061-3 applies. For purposes of defining an API under this section and 
section 1061 of the Internal Revenue Code (Code), an interest in a 
partnership also includes any financial instrument or contract, the 
value of which is determined in whole or in part by reference to the 
partnership (including the amount of partnership distributions, the 
value of partnership assets, or the results of partnership operations). 
An Owner Taxpayer and a Passthrough Taxpayer can hold an API directly or 
indirectly through one or more Passthrough Entities.
    Applicable Trade or Business (ATB) means any activity for which the 
ATB Activity Test with respect to Specified Actions is met, and includes 
all Specified Actions taken by Related Persons, including combining 
activities occurring in separate partnership tiers or entities as one 
ATB.
    ATB Activity Test has the meaning provided in Sec.  1.1061-2(b)(1).
    Capital account means a capital account maintained under Sec.  
1.704-1(b)(2)(iv) or similar principles.
    Capital Interest Allocations means, with respect to a partnership, 
allocations of long-term capital gain or loss made under the partnership 
agreement to an API Holder and to Unrelated Non-Service Partners based 
on such partners' capital contributed with respect to the partnership to 
the extent such allocations otherwise meet the requirements of Sec.  
1.1061-3(c). With respect to other Passthrough Entities, the principles 
of this definition apply.
    Capital Interest Disposition Amount has the meaning provided in 
Sec.  1.1061-3(c)(4).
    Capital Interest Gains and Losses has the meaning provided in Sec.  
1.1061-3(c)(2).
    Distributed API Property means property distributed by a Passthrough 
Entity to an API Holder with respect to an API if the holding period, as 
determined under sections 735 and 1223, in the API Holder's hands is 
three years or less at the time of disposition of the property by the 
API Holder.
    Indirect API means an API that is held through one or more 
Passthrough Entities.
    Investing or Developing Actions means actions involving either--
    (i) Investing in (or disposing of) Specified Assets (or identifying 
Specified Assets for such investing or disposition); or
    (ii) Developing Specified Assets (see Sec.  1.1061-2(b)(1)(ii)).
    Lookthrough Rule means the recharacterization rule described in 
Sec.  1.1061-4(b)(9).
    One Year Gain Amount has the meaning provided in Sec.  1.1061-
4(a)(2)(i).

[[Page 222]]

    Owner Taxpayer means the person subject to Federal income tax on net 
gain with respect to an API or an Indirect API during the taxable year, 
including an owner of a Passthrough Taxpayer unless the owner of the 
Passthrough Taxpayer is a Passthrough Entity itself or is excepted under 
Sec.  1.1061-3(a), (b), or (d).
    Passthrough Entity means a partnership, trust, estate, S corporation 
described in Sec.  1.1061-3(b)(2)(i), or passive foreign investment 
company described in Sec.  1.1061-3(b)(2)(ii).
    Passthrough Interest means an interest in a Passthrough Entity that 
represents in whole or in part an API.
    Passthrough Taxpayer means a Passthrough Entity that is treated as a 
taxpayer for the purpose of determining the existence of an API.
    Raising or Returning Capital Actions means actions involving raising 
or returning capital but does not include Investing or Developing 
Actions.
    Recharacterization Amount has the meaning provided in Sec.  1.1061-
4(a)(1).
    Related Person means a person or entity who is treated as related to 
another person or entity under sections 707(b) or 267(b).
    Relevant ATB means the ATB in which services were provided and in 
connection with which an API is held or was transferred.
    Section 1061(d) Recharacterization Amount has the meaning provided 
in Sec.  1.1061-5(c).
    Section 1061(d) Related Person has the meaning provided in Sec.  
1.1061-5(e).
    Section 1061 Regulations means the provisions of this section and 
Sec. Sec.  1.1061-2 through 1.1061-6.
    Specified Actions means the combination of Raising or Returning 
Capital Actions and Investing or Developing Actions.
    Specified Assets means--
    (i) Securities, including interests in partnerships qualifying as 
securities (as defined in section 475(c)(2) without regard to the last 
sentence thereof);
    (ii) Commodities (as defined in section 475(e)(2));
    (iii) Real estate held for rental or investment;
    (iv) Cash or cash equivalents; and
    (v) An interest in a partnership to the extent that the partnership 
holds Specified Assets. See Sec.  1.1061-2(b)(1)(iii).
    (vi) Specified Assets include options or derivative contracts with 
respect to any of the items provided in paragraphs (i) through (v) of 
this definition.
    Three Year Gain Amount has the meaning provided in Sec.  1.1061-
4(a)(2)(ii).
    Unrealized API Gains and Losses means, with respect to a Passthrough 
Entity's assets, all unrealized capital gains and losses that would be:
    (i) Realized if those assets were disposed of for fair market value 
in a taxable transaction on the relevant date; and
    (ii) Allocated to an API Holder with respect to its API, taking into 
account the principles of section 704(c).
    Unrelated Non-Service Partners means partners who do not (and did 
not) provide services in the Relevant ATB and who are not (and were not) 
Related Persons with respect to any API Holder in the partnership or any 
person who provides or has provided services in the Relevant ATB.
    (b) Applicability date. The provisions of this section apply to 
taxable years of Owner Taxpayers and Passthrough Entities beginning on 
or after January 19, 2021. An Owner Taxpayer or Passthrough Entity may 
choose to apply this section to a taxable year beginning after December 
31, 2017, provided that they consistently apply the Section 1061 
Regulations in their entirety to that year and all subsequent years.

[T.D. 9945, 86 FR 5480, Jan. 19, 2021]



Sec.  1.1061-2  Applicable partnership interests and applicable trades 
or businesses.

    (a) API rules and examples--(1) Rules--(i) An API remains an API. 
Once a partnership interest qualifies as an API, the partnership 
interest remains an API unless and until the requirements of one of the 
exceptions to qualification of a partnership interest as an API, set 
forth in Sec.  1.1061-3, are satisfied.
    (ii) Application of section 1061 to Unrealized API Gains and Losses. 
Unrealized API Gains and Losses are API Gains and Losses subject to 
section 1061 when the gains and losses are realized and recognized. 
Unrealized API Gains and

[[Page 223]]

Losses do not lose their character as such until they are recognized.
    (iii) API Gains and Losses retain their character. API Gains and 
Losses retain their character as API Gains and Losses as they are 
allocated from one Passthrough Entity to another Passthrough Entity and 
then to the Owner Taxpayer.
    (iv) Substantial services by an Owner Taxpayer, Passthrough 
Taxpayer, or any Related Person. If an interest in a partnership is 
transferred to or held by an Owner Taxpayer, Passthrough Taxpayer, or 
any Related Person in connection with the performance of services, the 
Owner Taxpayer, the Passthrough Taxpayer, or the Related Person is 
presumed to have provided substantial services for purposes of section 
1061.
    (v) Grantor trusts and entities disregarded as separate from their 
owners. A trust wholly described in subpart E, part I, subchapter J, 
chapter 1 of the Internal Revenue Code (that is, a grantor trust), a 
qualified subchapter S subsidiary described in section 1361(b)(3), and 
an entity with a single owner that is treated as disregarded as an 
entity separate from its owner under any provision of the Internal 
Revenue Code or any part of 26 CFR (including Sec.  301.7701-3 of this 
chapter) are disregarded for purposes of the Section 1061 Regulations.
    (2) Examples. The following examples illustrate the provisions of 
this paragraph (a).
    (i) Example 1: API. (A) A is the general partner of PRS, a 
partnership, and provides services to PRS. A is engaged in an ATB as 
defined in Sec.  1.1061-1(a). PRS transfers a PRS profits interest to A 
in connection with A's performance of substantial services with respect 
to PRS's ATB. A's interest in PRS is an API.
    (B) After 6 years, A retires and is no longer engaged in an ATB and 
does not perform any services with respect to its ATB and with respect 
to PRS. However, A retains the API in PRS. PRS continues to acquire new 
capital assets and to allocate gain to A from the disposition of those 
assets. Under paragraph (a)(1)(i) of this section, A's interest in PRS 
remains an API after A retires.
    (ii) Example 2: Contribution of an API to a partnership. Individuals 
A, B, and C each directly hold APIs in PRS, a partnership. A and B form 
a new partnership, GP, and contribute their APIs in PRS to GP. Following 
the contribution, each of A and B holds an Indirect API because each of 
A and B now indirectly holds an API in PRS through GP, a Passthrough 
Entity. Each of A's and B's interests in GP is a Passthrough Interest 
because each of A's and B's interest in GP represents an Indirect API.
    (iii) Example 3: Passthrough Interest, Indirect API, Passthrough 
Taxpayer. Each of A, B, and C provides services to, and is an equal 
partner in, GP. GP is engaged in an ATB as defined in Sec.  1.1061-1(a), 
is the general partner of PRS, and provides substantial management 
services to PRS. In connection with GP's performance of substantial 
services in an ATB, PRS issues a profits interest to GP. Because GP's 
PRS interest was received in connection with GP's providing services in 
an ATB, GP is a Passthrough Taxpayer and GP's interest in PRS is an API. 
Because A, B, and C are partners in GP, they each hold a Passthrough 
Interest in GP and an Indirect API in PRS. Each of A, B, and C is 
treated as an Owner Taxpayer because each is a partner in GP and because 
each holds an Indirect API in PRS in connection with the performance of 
its services to GP's ATB.
    (iv) Example 4: S corporation, Passthrough Interest, Indirect API, 
and Passthrough Taxpayer. A owns all of the stock of S Corp, an S 
corporation. S Corp is engaged in an ATB, as defined in Sec.  1.1061-
1(a). S Corp is the general partner of PRS, a partnership, and provides 
substantial management services to PRS. A provides substantial services 
in S Corp's ATB. In connection with S Corp providing substantial 
services to PRS, PRS issues a profits interest to S Corp. S Corp's 
interest in PRS is its only asset. Because S Corp's profits interest in 
PRS was issued to S Corp in connection with substantial services in an 
ATB, S Corp is a Passthrough Taxpayer and its interest in PRS is an API. 
Because A is a shareholder in S Corp, A holds a Passthrough Interest in 
S Corp and an Indirect API in PRS as

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a result of S Corp's API in PRS. A is treated as an Owner Taxpayer 
because A holds an interest in S Corp, a Passthrough Taxpayer, and also 
indirectly holds an API in PRS in connection with A's services in S 
Corp's ATB.
    (v) Example 5: Indirect API, Related Person, and Passthrough 
Taxpayer. Each of A, B, and C is an equal partner in partnership GP, the 
general partner of PRS. GP's Specified Actions do not satisfy the ATB 
Activity Test under Sec.  1.1061-1(a) and as a result, GP's actions do 
not establish an ATB. Management Company is a Related Person with 
respect to GP within the meaning of sections 267(b) and 707(b), is 
engaged in an ATB, and provides substantial management services to PRS 
that are sufficient to satisfy the ATB Activity Test. Management 
Company's actions are attributed to GP under paragraphs (a)(1)(iv) and 
(b)(1)(i)(C) of this section because Management Company is a Related 
Person to GP. In connection with Management Company's services to PRS, 
PRS issues a profits interest to GP. Because its PRS profits interest is 
issued to GP in connection with services provided by Management Company, 
a Related Person, GP is a Passthrough Taxpayer and its interest in PRS 
is an API. Unless an exception described in Sec.  1.1061-3 applies, 
because A, B, and C are partners in GP, they each hold a Passthrough 
Interest in GP and an Indirect API in PRS. A, B, and C are treated as 
Owner Taxpayers because they hold an interest in GP, a Passthrough 
Taxpayer.
    (b) Application of the ATB Activity Test--(1) In general. The ATB 
Activity Test is satisfied if both Raising and Returning Actions and 
Investing or Developing Actions are conducted by an Owner Taxpayer, 
Passthrough Taxpayer, or one or more Related Persons with respect to an 
Owner Taxpayer or Passthrough Taxpayer, and the total level of activity, 
including the combined activities of all Related Persons, satisfies the 
level of activity that would be required to establish a trade or 
business under section 162.
    (i) Rules for applying the ATB Activity Test--(A) Aggregate 
Specified Actions taken into account. The determination of whether the 
ATB Activity Test is satisfied is based on the combined activities 
conducted that qualify as either Raising or Returning Capital Actions 
and Investing or Developing Actions. The fact that either Raising or 
Returning Capital Actions or Investing or Developing Actions are only 
infrequently taken does not preclude the test from being satisfied if 
the combined Specified Actions meet the test.
    (B) Raising or Returning Capital Actions and Investing or Developing 
Actions are not both required to be taken in each taxable year. Raising 
or Returning Capital Actions and Investing or Developing Actions are not 
both required to be taken in each taxable year in order to satisfy the 
ATB Activity Test. For example, the ATB Activity Test will be satisfied 
if Investing or Developing Actions are not taken in the current taxable 
year, but sufficient Raising or Returning Capital Actions are taken in 
anticipation of future Investing or Developing Actions. Additionally, 
the ATB Activity Test will be satisfied if no Raising or Returning 
Capital Actions are taken in the current taxable year, but have been 
taken in a prior taxable year (regardless of whether the ATB Activity 
Test was met in the prior year), and sufficient Investing or Developing 
Actions are undertaken by the taxpayer in the current taxable year.
    (C) Combined conduct by multiple related entities taken into 
account--(1) Related Entities. If a Related Person(s) (within the 
meaning of Sec.  1.1061-1(a)) solely or primarily performs Raising or 
Returning Capital Actions and one or more other Related Person(s) solely 
or primarily performs Investing or Developing Actions, the combination 
of the activities performed by these Related Persons will be taken into 
account in determining whether the ATB Activity Test is satisfied.
    (2) Actions taken by an agent or delegate. Specified Actions taken 
by an agent or a delegate in its capacity as an agent or a delegate of a 
principal will be taken into account by the principal in determining 
whether the ATB Activity Test is satisfied with respect to the 
principal. These Specified Actions are also taken into account in 
determining whether the ATB Activity test is satisfied with respect to 
the agent or the delegate.

[[Page 225]]

    (ii) Developing Specified Assets. Developing Specified Assets takes 
place if it is represented to investors, lenders, regulators, or other 
interested parties that the value, price, or yield of a portfolio 
business may be enhanced or increased in connection with choices or 
actions of a service provider. Merely exercising voting rights with 
respect to shares owned or similar activities do not amount to 
developing Specified Assets.
    (iii) Partnerships. Investing or Developing Actions directly 
conducted with respect to Specified Assets held by a partnership are 
counted towards the ATB Activity Test. Additionally, a portion of the 
Investing or Developing Actions conducted with respect to the interests 
in a partnership that holds Specified Assets is counted towards the ATB 
Activity Test. This portion is the value of the partnership's Specified 
Assets over the value of all of the partnership's assets. Actions taken 
to manage a partnership's working capital will not be taken into account 
in determining the portion of Investing or Developing Actions conducted 
with respect to the interests in the partnership.
    (2) Examples. The following examples illustrate the application of 
the ATB Activity Test described in paragraph (b)(1) of this section.
    (i) Example 1: Combined activities of Raising or Returning Capital 
Actions and Investing or Developing Actions. During the taxable year, B 
takes a small number of actions to raise capital for new investments. B 
takes numerous actions to develop Specified Assets. B's actions with 
respect to raising capital and B's actions with respect to developing 
Specified Assets are combined for the purpose of determining whether the 
ATB Activity Test is satisfied. These actions cumulatively rise to the 
level required to establish a trade or business under section 162. Thus, 
B satisfies the ATB Activity Test.
    (ii) Example 2: Combining Specified Actions in multiple entities. 
GP, a partnership, conducts Raising or Returning Capital Actions. 
Management Company, a partnership that is a Related Person to GP, 
conducts Investing or Developing Actions. When GP's and Management 
Company's activities are combined, the ATB Activity Test is satisfied. 
Accordingly, both GP and Management Company are engaged in an ATB, and 
services performed by either GP or Management Company are performed in 
an ATB under paragraph (b)(1) of this section.
    (iii) Example 3: Investing or Developing Actions taken after Raising 
or Returning Capital Actions that do not meet the ATB Activity Test. In 
year 1, PRS engaged in Raising or Returning Capital Actions to fund 
PRS's investment in Specified Assets. However, PRS' Specified Actions 
during year 1 did not satisfy the ATB Activity Test because they did not 
satisfy the level of activity required to establish a trade or business 
under section 162. Therefore, PRS was not engaged in an ATB in year 1. 
In year 2, PRS engaged in significant Investing or Developing Actions 
but did not engage in any Raising or Returning Capital Actions. In year 
2, PRS's Investing or Developing Actions rise to the level required to 
establish a trade or business under section 162. Because PRS has 
cumulatively engaged in both Investing or Developing Actions and Raising 
or Returning Capital Actions and because the Specified Actions rise to 
the level of activity required to establish a trade or business under 
section 162, PRS is engaged in an ATB in year 2.
    (iv) Example 4: Raising or Returning Capital Actions taken in 
anticipation of Investing or Developing Actions. In year 1, A only 
conducted Raising or Returning Capital Actions. A's Raising or Returning 
Capital Actions were undertaken to raise capital to invest in Specified 
Assets with the goal of increasing their value through Investing or 
Developing Actions and rise to the level of activity required to 
establish a trade or business under section 162. A did not take 
Investing or Developing Actions during the taxable year. A's Raising or 
Returning Capital Actions satisfy the ATB Activity Test because they 
were undertaken in anticipation of also engaging in Investing or 
Developing Actions. Therefore, the ATB Activity Test is satisfied, and A 
is engaged in an ATB in year 1.
    (v) Example 5: Attribution of delegate's actions. GP is the general 
partner of PRS. GP is responsible for providing

[[Page 226]]

management services to PRS. GP contracts with Management Company to 
provide management services on GP's behalf to PRS. GP and Management 
Company are not Related Persons. The Specified Actions taken by 
Management Company on behalf of GP are attributed to GP for purposes of 
the ATB Activity Test because the Management Company is operating as a 
delegate of GP. Additionally, those Specified Actions are taken into 
account by Management Company for purposes of the ATB Activity Test and 
whether it is engaged in an ATB.
    (vi) Example 6: ATB Activity Test not satisfied. A is the manager of 
a hardware store. Partnership owns the hardware store, including the 
building in which the hardware business is conducted. In connection with 
A's services as the manager of the hardware store, a profits interest in 
Partnership is transferred to A. Partnership's business involves buying 
hardware from wholesale suppliers and selling it to customers. The 
hardware is not a Specified Asset. Although real estate is a Specified 
Asset if it is held for rental or investment purposes, Partnership holds 
the building for the purpose of conducting its hardware business and not 
for rental or investment purposes. Therefore, the building is not a 
Specified Asset as to Partnership. Partnership also maintains and 
manages a certain amount of working capital for its business, but 
actions with respect to working capital are not taken into account for 
the purpose of determining whether the ATB Activity Test is met. 
Partnership is not a Related Person with respect to any person who takes 
Specified Actions. Partnership is not engaged in an ATB because the ATB 
Activity Test is not satisfied. Although Partnership raises capital, its 
Raising or Returning Capital Actions alone do not satisfy the ATB 
Activity Test. Further, Partnership takes no Investing or Developing 
Actions because it holds no Specified Assets other than working capital. 
Partnership is not in an ATB and the profits interest transferred to A 
is not an API.
    (c) Applicability date. The provisions of this section apply to 
taxable years of Owner Taxpayers and Passthrough Entities beginning on 
or after January 19, 2021. An Owner Taxpayer or Passthrough Entity may 
choose to apply this section to a taxable year beginning after December 
31, 2017, provided that they apply the Section 1061 Regulations in their 
entirety to that year and all subsequent years.

[T.D. 9945, 86 FR 5480, Jan. 19, 2021]



Sec.  1.1061-3  Exceptions to the definition of an API.

    (a) A partnership interest held by an employee of another entity not 
conducting an ATB. An API does not include any interest transferred to a 
person in connection with the performance of substantial services by 
that person as an employee of another entity that is conducting a trade 
or business (other than an ATB) and the person provides services only to 
such other entity.
    (b) Partnership interest held by a corporation--(1) In general. An 
API does not include any interest directly or indirectly held by a 
corporation.
    (2) Treatment of interests held by an S corporation or a qualified 
electing fund. For purposes of this section, a corporation does not 
include an entity for which an election was made to treat the entity as 
a Passthrough Entity. Thus, the following entities are not treated as 
corporations for purposes of section 1061--
    (i) An S corporation for which an election under section 1362(a) is 
in effect; and
    (ii) A passive foreign investment company (PFIC) with respect to 
which the shareholder has a qualified electing fund (QEF) election under 
section 1295 in effect.
    (c) Capital Interest Gains and Losses--(1) In general. Capital 
Interest Gains and Losses are not subject to section 1061 and, 
therefore, are not included in calculating an Owner Taxpayer's 
Recharacterization Amount.
    (2) Capital Interest Gains and Losses defined. For purposes of 
paragraph (c)(1) of this section, Capital Interest Gains and Losses are 
Capital Interest Allocations that meet the requirements of paragraph 
(c)(3) of this section and Capital Interest Disposition Amounts that 
meet the requirements of paragraph (c)(4) of this section.

[[Page 227]]

    (3) General rules for determining Capital Interest Allocations--(i) 
Commensurate with capital contributed. An allocation will be considered 
a Capital Interest Allocation if the allocation to the API Holder with 
respect to its capital interest is determined and calculated in a 
similar manner as the allocations with respect to capital interests held 
by similarly situated Unrelated Non-Service Partners who have made 
significant aggregate capital contributions as described in paragraph 
(c)(3)(iv) of this section. For purposes of this paragraph (c)(3), a 
capital interest is an interest that would give the holder a share of 
the proceeds if the partnership's assets were sold at fair market value 
at the time the interest was received and the proceeds were then 
distributed in a complete liquidation of the partnership.
    (ii) In a similar manner. For purposes of paragraph (c)(3)(i) of 
this section, a Capital Interest Allocation to an API Holder will be 
treated as made in a similar manner if allocations and distribution 
rights with respect to the capital contributed by an API Holder to which 
the API Holder's Capital Interest Allocation relates are reasonably 
consistent with allocation and distribution rights with respect to 
capital contributed by Unrelated Non-Service Partners where the 
Unrelated Non-Service Partner requirement is met. For purposes of this 
paragraph (c)(3)(ii), allocation and distribution rights for an API 
Holder that are limited to a particular class of partnership capital 
interests or that are determined with respect to capital contributions 
invested in a particular partnership investment will be considered as 
made in a similar manner to allocations and distribution rights of 
Unrelated Non-Service Partners where the Unrelated Non-Service Partner 
requirement is met for the applicable interest class or partnership 
investment.
    (A) Relevant factors. For purposes of this paragraph (c)(3)(ii), the 
following factors are not exclusive, but are relevant factors in 
determining whether allocation and distribution rights with respect to 
capital contributed by an API Holder are reasonably consistent with 
allocation and distribution rights of persons meeting the Unrelated Non-
Service Partner requirement: The amount and timing of capital 
contributed, the rate of return on capital contributed, the terms, 
priority, type and level of risk associated with capital contributed, 
and the rights to cash or property distributions during the 
partnership's operations and on liquidation. Accordingly, an allocation 
to an API Holder will not fail to qualify solely because the allocation 
is subordinated to allocations made to Unrelated Non-Service Partners, 
because an allocation to an API Holder is not reduced by the cost of 
services provided by the API Holder or a Related Person to the 
partnership, where the cost of services provided includes management 
fees or API allocations, or because an API Holder has a right to receive 
tax distributions while Unrelated Non-Service Partners do not, where 
such distributions are treated as advances against future distributions.
    (B) Clear identification requirement. For purposes of this paragraph 
(c)(3)(ii), allocations will be considered made in a similar manner only 
if the allocations to the API Holder and the Unrelated Non-Service 
Partners are allocations with respect to, and corresponding to, such 
partners' contributed capital that are separate and apart from 
allocations made to the API Holder with respect to its API and where 
both the partnership agreement and the partnership's contemporaneous 
books and records clearly demonstrate that the requirements of paragraph 
(c)(3) of this section have been met.
    (iii) Reinvestment of API Gain. If an API Holder is allocated API 
Gain by a Passthrough Entity, to the extent that an amount equal to the 
API Gain is reinvested in the Passthrough Entity by the API Holder 
(either as the result of an actual distribution and recontribution of 
the API Gain amount or the retention of the API Gain amount by the 
Passthrough Entity), the amount will be treated as a contribution to the 
Passthrough Entity for a capital interest that may produce Capital 
Interest Allocations for the API Holder, provided such allocations meet 
the requirements of this paragraph (c)(3).
    (iv) Unrelated Non-Service Partner requirement. For purposes of 
paragraph (c)(3) of this section, the Unrelated

[[Page 228]]

Non-Service Partner requirement means that Unrelated Non-Service 
Partners must have made significant aggregate capital contributions in 
relation to total capital contributions of all partners. Unrelated Non-
Service Partners will be treated as having made significant aggregate 
capital contributions provided such partners possess five percent or 
more of the aggregate capital contributed to the partnership at the time 
the allocations are made. With respect to an API Holder with allocation 
and distribution rights that are attributable to a particular interest 
class or partnership investment, the Unrelated Non-Service requirement 
must be met with respect to that particular interest class or 
partnership investment.
    (v) Proceeds of certain loans not taken into account for Capital 
Interest Allocation purposes--(A) General rule. For purposes of the 
Section 1061 Regulations, an allocation is not a Capital Interest 
Allocation to the extent the allocation is attributable to the 
contribution of an amount of capital to a partnership that, directly or 
indirectly, results from, or is attributable to, any loan or other 
advance made or guaranteed, directly or indirectly, by the partnership, 
a partner in the partnership, or any Related Person with respect to such 
persons, except to the extent a loan or advance is described in 
paragraph (c)(3)(v)(B) of this section. However, the repayments on a 
loan described in the preceding sentence are taken into account as 
capital contributed (and may therefore generate Capital Interest 
Allocations) as those amounts are paid by the partner, provided that the 
loan is not repaid with the proceeds of another loan described in the 
preceding sentence.
    (B) Recourse liability. Paragraph (c)(3)(v)(A) of this section does 
not apply with respect to an allocation attributable to a contribution 
made by an individual service provider that, directly or indirectly, 
results from, or is attributable to, a loan or advance from another 
partner in the partnership (or any Related Person with respect to such 
lending or advancing partner, other than the partnership) to such 
individual service provider if the individual service provider is 
personally liable for the repayment of such loan or advance. A 
contribution made by an individual service provider includes a 
contribution made by an entity that is wholly owned by, and disregarded 
as separate from, the individual service provider as described in Sec.  
1.1061-2(a)(1)(v), including a contribution attributable to a loan or 
advance made to the disregarded entity by another partner in the 
partnership (or any Related Person with respect to such lending or 
advancing partner, other that the partnership) if the individual service 
provider is personally liable for the repayment of any and all borrowed 
amounts that are not repaid by the disregarded entity. For purposes of 
this paragraph (c)(3)(v)(B), an individual service provider is 
personally liable for the repayment of a loan or advance made by a 
partner (or any Related Person, other than the partnership) if--
    (1) The loan or advance is fully recourse to the individual service 
provider;
    (2) The individual service provider has no right to reimbursement 
from any other person; and
    (3) The loan or advance is not guaranteed by any other person.
    (vi) Items that are not included in Capital Interest Allocations. 
Capital Interest Allocations do not include--
    (A) Amounts that are treated as API Gains and Losses and Unrealized 
API Gains and Losses; or
    (B) Items that are not taken into account for purposes of section 
1061 under Sec.  1.1061-4(b)(7).
    (4) Capital Interest Disposition Amounts--(i) In general. The term 
Capital Interest Disposition Amount means the amount of long-term 
capital gain or loss recognized on the sale or disposition of all or a 
portion of a Passthrough Interest that is treated as Capital Interest 
Gain or Loss. In general, long-term capital gain or loss recognized on 
the sale or disposition of a Passthrough Interest is deemed to be API 
Gain or Loss unless it is determined under paragraph (c)(4)(ii) of this 
section to be a Capital Interest Disposition Amount.
    (ii) Determination of the Capital Interest Disposition Amount. If a 
Passthrough Interest that includes a right to allocations of Capital 
Interest Gains and

[[Page 229]]

Losses is disposed of, the amount of long-term capital gain or loss that 
is treated as a Capital Interest Disposition Amount is determined under 
the rules provided in this paragraph (c)(4)(ii).
    (A) First, determine the amount of long-term capital gain or loss 
that would be allocated to the Passthrough Interest (or the portion of 
the Passthrough Interest sold) if all the assets of the Passthrough 
Entity (including gain or loss with respect to assets described in Sec.  
1.1061-4(b)(7)) were sold for their fair market value in a fully taxable 
transaction immediately before the disposition of the Passthrough 
Interest (hypothetical asset sale). For purposes of this paragraph 
(c)(4)(ii), the assets of the Passthrough Entity include any assets held 
by a lower-tier Passthrough Entity in which the Passthrough Entity has a 
direct or indirect interest.
    (B) Second, determine the amount from the hypothetical asset sale 
that would be allocated to the Passthrough Interest (or the portion of 
the Passthrough Interest sold) as Capital Interest Allocations under 
paragraph (c)(3) of this section.
    (C) Third, if the transferor recognized long-term capital gain upon 
disposition of the Passthrough Interest and only net short-term capital 
losses, net long-term capital losses, or both, are allocated to the 
Passthrough Interest under paragraph (c)(4)(ii)(B) of this section from 
the hypothetical asset sale, all of the long-term capital gain is API 
Gain. If the transferor recognized long-term capital loss on the 
disposition of the Passthrough Interest and only net short-term capital 
gains, net long-term capital gains, or both, are allocated to the 
Passthrough Interest under paragraph (c)(4)(ii)(B) of this section, then 
all the long-term capital loss is API Loss.
    (D) If paragraph (c)(4)(ii)(C) of this section does not apply and 
long-term capital gain is recognized on the disposition of the 
Passthrough Interest, the amount of long-term capital gain that the 
transferor of the Passthrough Interest recognizes that is treated as a 
Capital Interest Disposition Amount is determined by multiplying long-
term capital gain recognized on the disposition of the Passthrough 
Interest by a fraction, the numerator of which is the amount of long-
term capital gain determined under paragraph (c)(4)(ii)(B) of this 
section, and the denominator of which is the amount of long-term capital 
gain determined under paragraph (c)(4)(ii)(A) of this section, with the 
percentage represented by the fraction limited to 100 percent. 
Alternatively, if paragraph (c)(4)(ii)(C) of this section does not apply 
and long-term capital loss is recognized on the disposition of the 
Passthrough Interest, the amount of long-term capital loss treated as a 
Capital Interest Disposition Amount is determined by multiplying the 
transferor's capital loss by a fraction, the numerator of which is the 
amount of long-term capital loss determined under paragraph 
(c)(4)(ii)(B) of this section, and the denominator of which is the 
amount of long-term capital loss determined under paragraph 
(c)(4)(ii)(A) of this section, with the percentage represented by the 
fraction limited to 100 percent.
    (E) In applying this paragraph (c)(4)(ii), allocations of amounts 
that are not included in determining the amount of long-term capital 
gain or loss recognized on the sale or disposition of the Passthrough 
Interest are not included. See, for example, section 751(a).
    (5) Capital Interest Allocations made by a Passthrough Entity that 
is an API Holder. An allocation made to a Passthrough Entity that holds 
an API in a lower-tier Passthrough Entity will be considered a Capital 
Interest Allocation if it meets the principles set forth in paragraphs 
(c)(3) and (4) of this section (other than paragraph (c)(3)(iv) of this 
section). For purposes of applying the Capital Interest Allocation rules 
in this paragraph (c)(5) to a tiered partnership structure, to the 
extent that a Capital Interest Allocation that is made by a lower-tier 
partnership to an upper-tier partnership is properly allocated to the 
upper-tier partnership's partners with respect to their capital 
interests in the upper-tier partnership in a manner that is respected 
under 704(b) (taking into account the principles of section 704(c)), 
such allocation is a Capital Interest Allocation.

[[Page 230]]

    (6) Examples. The rules of this paragraph (c) are illustrated by the 
following examples.
    (i) Example 1: Capital Interest Allocations--(A) Facts. Each of A, 
B, and C contributes $100 to GP and is an equal partner in GP, a 
partnership that is the general partner of PRS, a partnership. The 
contributions are not attributable to loans or advances described in 
paragraph (c)(3)(v)(A) of this section. PRS's other partners are 
Unrelated Non-Service Partners. Each of GP and PRS makes allocations to 
its partners in accordance with its partners' interests in that 
partnership, as described in Sec.  1.704-1(b)(3). GP holds a 20% profits 
interest in PRS that is an API that GP received in exchange for 
providing substantial services to PRS in an ATB. GP's API is an Indirect 
API to each of A, B, and C. GP contributes the $300 of capital 
contributed by A, B and C to PRS. GP's $300 contribution equals 2% of 
the contributed capital made by all of PRS's partners ($15,000). PRS's 
partnership agreement describes its partners' economic distribution 
rights with respect to its liquidating proceeds as follows: First, 
liquidating proceeds are proportionately distributed to each of GP and 
the Unrelated Non-Service Partners equal to the amount necessary to 
return each of those partners' unreturned capital; second, liquidating 
proceeds are distributed to GP with respect to its API in PRS; and, 
finally, any residual liquidating proceeds are distributed, 
proportionately, 98% to the Unrelated Non-Service Partners and 2% to GP. 
During its initial taxable year, PRS has $10,000 of net capital gain, 
causing an increase in PRS's distributable proceeds of $10,000. In 
accordance with the partners' economic rights as described in PRS's 
partnership agreement, PRS allocates $2,160 of net capital gain to GP (a 
$2,000 API allocation plus $160 ($8,000 ($10,000-$2,000) x 2%), with 
respect to GP's contributed capital) and $7,840 of net capital gain to 
the Unrelated Non-Service Partners with respect to their contributed 
capital. GP allocates $720 ($2,160/3) of this net capital gain to each 
of A, B, and C in accordance with their interests in GP.
    (B) PRS's Capital Interest Allocation Analysis. Because PRS's 
partnership agreement provides for no differences as to the amount and 
timing of capital contributed, the rate of return on capital 
contributed, the type and level of risk associated with capital 
contributed, or the rights to cash or property distributions during the 
PRS's operations and on liquidation, the allocations and distribution 
rights with respect the capital contributed by GP are reasonably 
consistent with the allocation and distribution rights with respect to 
capital contributed by Unrelated Non-Service Partners. Accordingly, GP's 
allocation of $160 is a Capital Interest Allocation that is treated as 
made in a similar manner as the allocations made to the Unrelated Non-
Service Partners.
    (C) GP Capital Interest Allocation Analysis. GP is allocated $2,160 
from PRS, consisting of a $2,000 API allocation and a $160 Capital 
Interest Allocation. The $160 Capital Interest Allocation is allocated 
equally to A, B, and C based on their capital contributions to GP. 
Therefore, they qualify as Capital Interest Allocations by GP. See 
paragraph (c)(5) of this section. The $2,000 of gain allocated by PRS's 
to GP with respect to GP's API cannot be treated as a Capital Interest 
Allocation by GP and therefore is subject to section 1061. In summary, 
A, B, and C are each allocated $720 of capital gain from PRS ($2,160/3). 
Of this amount, $667 is API Gain ($2,000/3) and $53 is a Capital 
Interest Allocation ($160/3).
    (ii) Example 2: Sale of a Passthrough Interest--(A) Facts. In Year 
1, A, B, and C form GP, a partnership. Each of A, B, and C contributes 
$100 to GP and is an equal partner in GP. The contributions are not 
attributable to loans or advances described in paragraph (c)(3)(v)(A) of 
this section. GP invests the $300 in Asset X in Year 1. GP is also the 
general partner of PRS, a partnership. PRS's other partners are 
Unrelated Non-Service Partners. GP holds a 20% profits interest in PRS 
that is an API that GP received in exchange for providing substantial 
services to PRS in an ATB. GP's API is an Indirect API to each of A, B, 
and C. Each of GP and PRS makes allocations to its partners in 
accordance with its partners' interests in that partnership, as 
described in

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Sec.  1.704-1(b)(3). In Year 3, A sells A's interest in GP to an 
unrelated third party for $800 and recognizes $700 of capital gain on 
the sale. If PRS had sold its assets in a hypothetical asset sale as 
required by paragraph (c)(4)(ii)(A) of this section and liquidated 
immediately before A sold its interest in GP, GP would have been 
allocated $1,800 of long-term capital gain with respect to GP's API in 
PRS, and GP would have allocated $600 of this $1,800 to A. If GP sold 
Asset X for its fair market value and liquidated immediately before A 
sold its interest in GP, A would have been allocated $100 of long-term 
capital gain.
    (B) Analysis. GP does not have a capital interest in PRS. Therefore, 
its allocations from PRS are allocations with respect to its API which 
are subject to section 1061. The total gain allocable to A as a result 
of the hypothetical liquidations would be $700. Under paragraph 
(c)(4)(ii)(D) of this section, $100 of the $700 of A's interest sale 
gain is A's Capital Interest Disposition Amount, and is not subject to 
section 1061.
    (iii) Example 3: Reinvestment of Realized API Gain. A, B, and C are 
partners in PRS, a partnership. At the beginning of Year 1, A is issued 
an API in PRS in exchange for providing substantial services to PRS in 
an ATB. A has no capital interest in PRS. During Year 1, PRS's assets 
appreciate by $100. At the end of Year 1, under the terms of its 
partnership agreement, if PRS were to sell all of its assets at their 
fair market value and distribute the proceeds in a complete liquidation, 
A would receive $20 with respect to its API. Thus, at the end of Year 1, 
A has $20 of Unrealized API Gain. In Year 2, PRS sells Asset X, an asset 
that PRS owned in Year 1, and allocates $8 of the long-term capital gain 
to A as API Gain. As a result, $8 of A's $20 of Unrealized API Gain 
becomes API Gain that is subject to section 1061. A reinvests A's share 
of the proceeds from the Asset X sale in PRS. As a result, under 
paragraph (c)(3)(iii) of this section, A has an $8 capital interest in 
PRS and, provided the requirements of paragraph (c)(3) of this section 
are met, A may receive future Capital Interest Allocations with respect 
to the capital interest.
    (d) Partnership interest acquired by purchase by an unrelated 
person. If a person (acquirer) acquires an interest in a partnership 
(target partnership) by taxable purchase for fair market value that, but 
for the exception set forth in this paragraph (d), would be an API, the 
transferor of the interest will be treated as selling an API but the 
acquirer will not be treated as acquiring an API if--
    (1) Acquirer not a Related Person. Immediately before the purchase, 
the acquirer is not a Related Person with respect to--
    (i) Any person who provides services in the Relevant ATB; or
    (ii) Any service providers who provide services to, or for the 
benefit of, the target partnership or a lower-tier partnership in which 
the target partnership holds an interest, directly or indirectly.
    (2) Section 1061(d) not applicable. Section 1061(d) does not apply 
to the transaction (as provided in Sec.  1.1061-5).
    (3) Acquirer not a service provider. At the time of the purchase, 
the acquirer has not provided, does not provide, and does not anticipate 
providing, services in the future, to, or for the benefit of, the target 
partnership, directly or indirectly, or any lower-tier partnership in 
which the target partnership directly or indirectly holds an interest.
    (e) [Reserved]
    (f) Applicability date--(1) General rule. Except as provided in 
paragraphs (f)(2) and (3) of this section, the provisions of this 
section apply to taxable years of Owner Taxpayers and Passthrough 
Entities beginning on or after January 19, 2021. An Owner Taxpayer or 
Passthrough Entity may choose to apply this section to a taxable year 
beginning after December 31, 2017, provided that they apply the Section 
1061 Regulations in their entirety to that year and all subsequent 
years.
    (2) Partnership interest held by an S corporation. Paragraph 
(b)(2)(i) of this section, which provides that the exception under 
section 1061(c)(1) to the definition of an API does not apply to a 
partnership interest held by an S corporation with an election under 
section 1362(a) in effect, applies to taxable

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years beginning after December 31, 2017.
    (3) Partnership interest held by a PFIC with respect to which the 
shareholder has a QEF election in effect. Paragraph (b)(2)(ii) of this 
section, which provides that the exception under section 1061(c)(1) to 
the definition of an API does not apply to a partnership interest held 
by a PFIC with respect to which the shareholder has a QEF election in 
effect under section 1295, applies to taxable years of an Owner Taxpayer 
and Passthrough Entity beginning after August 14, 2020.

[T.D. 9945, 86 FR 5480, Jan. 19, 2021]



Sec.  1.1061-4  Section 1061 computations.

    (a) Computations--(1) Recharacterization Amount. The 
Recharacterization Amount is the amount that an Owner Taxpayer must 
treat as short-term capital gain under section 1061(a). The 
Recharacterization Amount equals--
    (i) The Owner Taxpayer's One Year Gain Amount; less
    (ii) The Owner Taxpayer's Three Year Gain Amount.
    (2) One Year Gain Amount and Three Year Gain Amount--(i) One Year 
Gain Amount. The Owner Taxpayer's One Year Gain Amount is the sum of--
    (A) The Owner Taxpayer's combined net API One Year Distributive 
Share Amount from all APIs held during the taxable year; and
    (B) The Owner Taxpayer's API One Year Disposition Amount.
    (ii) Three Year Gain Amount. The Owner Taxpayer's Three Year Gain 
Amount is the sum of--
    (A) The Owner Taxpayer's combined net API Three Year Distributive 
Share Amount from all APIs held during the taxable year; and
    (B) The Owner Taxpayer's API Three Year Disposition Amount.
    (3) API One Year Distributive Share Amount and API Three Year 
Distributive Share Amount--(i) API One Year Distributive Share Amount. 
The API One Year Distributive Share Amount equals--
    (A) The API Holder's distributive share of net long-term capital 
gain or loss from the partnership for the taxable year (including 
capital gain or loss on the disposition of Distributed API Property by 
an API Holder that is a Passthrough Entity or the disposition of all or 
a part of an API by an API Holder that is a Passthrough Entity), with 
respect to the partnership interest held by the API Holder calculated 
without the application of section 1061; less
    (B) To the extent included in the amount determined under paragraph 
(a)(3)(i)(A) of this section, the aggregate of--
    (1) Amounts that are not taken into account for purposes of section 
1061 under paragraph (b)(7) of this section; and
    (2) Capital Interest Gains and Losses as determined under Sec.  
1.1061-3(c)(2).
    (ii) API Three Year Distributive Share Amount. The API Three Year 
Distributive Share Amount equals the API One Year Distributive Share 
Amount, less--
    (A) Items included in the API One Year Distributive Share Amount 
that would not be treated as a long-term gain or loss if three years is 
substituted for one year in paragraphs (3) and (4) of section 1222; and
    (B) Any adjustments resulting from the application of the 
Lookthrough Rule under paragraph (b)(9)(ii) of this section when an API 
is disposed of by an API Holder that is a Passthrough Entity.
    (4) API One Year Disposition Amount and API Three Year Disposition 
Amount--(i) API One Year Disposition Amount. The API One Year 
Disposition Amount is the combined net amount of--
    (A) Long-term capital gains and losses recognized during the taxable 
year by an Owner Taxpayer, including long-term capital gain computed 
under the installment method that is taken into account for the taxable 
year, on the disposition of all or a portion of an API that has been 
held for more than one year, including a disposition to which the 
Lookthrough Rule applies;
    (B) Long-term capital gain and loss recognized by an Owner Taxpayer 
due to a distribution with respect to an API during the taxable year 
that is treated under section 731(a) as gain or loss from the sale or 
exchange of a partnership interest held for more than one year; and,

[[Page 233]]

    (C) Long-term capital gains and losses recognized by an Owner 
Taxpayer on the disposition of Distributed API Property (taking into 
account deemed exchanges under section 751(b)) during the taxable year 
that has a holding period of more than one year but not more than three 
years to the distributee Owner Taxpayer on the date of disposition, 
excluding items described in paragraph (b)(7) of this section.
    (ii) API Three Year Disposition Amount. The API Three Year 
Disposition Amount is the combined net amount of--
    (A) Long-term capital gains and losses recognized during the taxable 
year by an Owner Taxpayer, including long-term capital gain computed 
under the installment method that is taken into account for the taxable 
year, on the disposition of all or a portion of an API that has been 
held for more than three years and to which the Lookthrough Rule does 
not apply;
    (B) Long-term capital gains and losses recognized by an Owner 
Taxpayer on the disposition during the taxable year of all or a portion 
of an API that has been held for more than three years in a transaction 
to which the Lookthrough Rule in paragraph (b)(9) of this section 
applies, less any adjustments required under the Lookthrough Rule in 
paragraph (b)(9)(ii) of this section; and
    (C) Long-term capital gains and losses recognized on a distribution 
with respect to an API during the taxable year that is treated under 
sections 731(a) as gain or loss from the sale or exchange of a 
partnership interest held for more than three years.
    (b) Special rules for calculating the One Year Gain Amount and the 
Three Year Gain Amount--(1) One Year Gain Amount equals zero or less. If 
an Owner Taxpayer's One Year Gain Amount is zero or results in a loss, 
the Recharacterization Amount for the taxable year is zero and section 
1061(a) does not apply.
    (2) Three Year Gain Amount equals zero or less. If an Owner 
Taxpayer's Three Year Gain Amount is less than or equal to $0, the Three 
Year Gain Amount is zero for purposes of calculating the 
Recharacterization Amount.
    (3) One Year Gain Amount less than Three Year Gain Amount. If the 
One Year Gain Amount and the Three Year Gain Amount are both greater 
than zero but the One Year Gain Amount is less than the Three Year Gain 
Amount, none of the One Year Gain Amount is included in the 
Recharacterization Amount for the taxable year.
    (4) Installment sale gain. The One Year Gain Amount under paragraph 
(a)(2)(i) of this section and the Three Year Gain Amount, as determined 
under paragraph (a)(2)(ii) of this section include long-term capital 
gains from installment sales. This includes long-term capital gain or 
loss recognized with respect to an API after December 31, 2017, with 
respect to an installment sale that occurred on or before December 31, 
2017. The holding period of the asset upon the date of disposition is 
used for purposes of determining whether capital gain is included in the 
taxpayer's One Year Gain Amount or the Three Year Gain Amount.
    (5) Special rules for capital gain dividends from regulated 
investment companies (RICs) and real estate investment trusts (REITs)--
(i) API One Year Distributive Share Amount. If a RIC or REIT reports or 
designates a dividend as a capital gain dividend and provides the One 
Year Amounts Disclosure as defined in Sec.  1.1061-6(c)(1)(i), the 
amount provided in the One Year Amounts Disclosure is included in the 
calculation of an API One Year Distributive Share Amount. If the RIC or 
REIT does not provide the One Year Amounts Disclosure, the full amount 
of the RIC's or REIT's capital gain dividend must be included in the 
calculation of an API One Year Distributive Share Amount.
    (ii) API Three Year Distributive Share Amount. If a RIC or REIT 
reports or designates a dividend as a capital gain dividend and provides 
the Three Year Amounts Disclosure as defined in Sec.  1.1061-
6(c)(1)(ii), the amount provided in the Three Year Amounts Disclosure is 
used for the calculation of an API Three Year Distributive Share amount. 
If the RIC or REIT does not provide the Three Year Amounts Disclosure, 
no amount of the RIC's or REIT's capital gain dividend may be used for 
the calculation of an API Three Year Distributive Share Amount.

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    (iii) Loss on sale or exchange of stock. If a RIC or REIT provides 
the Three Year Amounts Disclosure as provided in paragraph (b)(5)(ii) of 
this section, any loss on the sale or exchange of shares of a RIC or 
REIT held for six months or less is treated as a capital loss on an 
asset held for more than three years, to the extent of the amount of the 
Three Year Amounts Disclosure from that RIC or REIT.
    (6) Pro rata share of qualified electing fund (QEF) net capital 
gain--(i) One year QEF net capital gain. The calculation of an API One 
Year Distributive Share Amount includes an Owner Taxpayer's inclusion 
under section 1293(a)(1)(B) as limited by section 1293(e)(2) with 
respect to a passive foreign investment company (as defined in section 
1297(a)) for which a QEF election (as described in section 1295(a)) is 
in effect for the taxable year. The amount of the inclusion may be 
reduced by the amount of long-term capital gain that is not taken into 
account for purposes of section 1061 as provided in paragraph (b)(7) of 
this section and may be reduced by the Owner Taxpayer's share of the 
excess, if any, of the Capital Interest Gain over Capital Interest Loss 
with respect to the QEF, provided in each case that the relevant 
information is provided by the QEF. See Sec.  1.1061-6 for reporting 
rules.
    (ii) Three year QEF net capital gain adjustment. For purposes of 
calculating an Owner Taxpayer's API Three Year Distributive Share 
Amount, the entire amount determined under paragraph (b)(6)(i) of this 
section, after any allowed reduction, is included as an item in 
paragraph (a)(3)(ii)(A) of this section unless the QEF provides 
information to determine the amount of the inclusion that would 
constitute net capital gain (as defined in Sec.  1.1293-1(a)(2), as 
limited by section 1293(e)(2)) if the QEF's net capital gain for the 
taxable year were calculated under section 1222(11) applying paragraphs 
(3) and (4) of section 1222 by substituting three years for one year. If 
such information is provided, the amount included as an item in 
paragraph (a)(3)(ii)(A) of this section is the amount determined under 
paragraph (b)(6)(i) of this section that would not be treated as long-
term gain if three years were substituted for one year in paragraphs (3) 
and (4) of section 1222. See Sec.  1.1061-6 for reporting rules.
    (7) Items not taken into account for purposes of section 1061. The 
following items of long-term capital gain and loss are excluded from the 
calculation of the API One Year Distributive Share Amount in paragraph 
(a)(3)(i) of this section and the API Three Year Distributive Share 
Amount in paragraph (a)(3)(ii) of this section--
    (i) Long-term capital gain and long-term capital loss determined 
under section 1231;
    (ii) Long-term capital gain and long-term capital loss determined 
under section 1256;
    (iii) Qualified dividends included in net capital gain for purposes 
of section 1(h)(11)(B); and
    (iv) Capital gains and losses that are characterized as long-term or 
short-term without regard to the holding period rules in section 1222, 
such as certain capital gains and losses characterized under the mixed 
straddle rules described in section 1092(b) and Sec. Sec.  1.1092(b)-3T, 
1.1092(b)-4T, and 1.1092(b)-6.
    (8) Holding period determination--(i) Determination of holding 
period for purposes of the Three Year Gain Amount. For purposes of 
computing the Three Year Gain Amount, the relevant holding period of 
either an asset or an API is determined under all provisions of the Code 
or regulations that are relevant to determining whether the asset or the 
API has been held for the long-term capital gain holding period by 
applying those provisions as if the holding period were three years 
instead of one year.
    (ii) Relevant holding period. The relevant holding period is the 
direct owner's holding period in the asset sold. Accordingly, for 
purposes of determining an API Holder's Taxpayer's API One Year 
Distributive Share Amount and API Three Year Distributive Share Amount 
for the taxable year under paragraph (a)(3) of this section, the 
partnership's holding period in the asset being sold or disposed of 
(whether a directly held asset or a partnership interest) is the 
relevant holding period for purposes of section 1061.
    (9) Lookthrough Rule for certain API dispositions--(i) Determination 
that the

[[Page 235]]

Lookthrough Rule applies--(A) In general. The Lookthrough Rule will 
apply if, at the time of disposition of an API held for more than three 
years--
    (1) The API would have a holding period of three years or less if 
the holding period of such API were determined by not including any 
period before the date that an Unrelated Non-Service Partner is legally 
obligated to contribute substantial money or property directly or 
indirectly to the Passthrough Entity to which the API relates. This 
paragraph (b)(9)(i)(A) does not apply to the disposition of an API to 
the extent that the gain recognized upon the disposition of the API is 
attributable to any asset not held for portfolio investment on behalf of 
third party investors (as defined in section 1061(c)(5)). Solely for the 
purpose of this paragraph (b)(9)(i)(A), a substantial legal obligation 
to contribute money or property is an obligation to contribute a value 
that is at least 5 percent of the partnership's total capital 
contributions as of the time of the API disposition; or
    (2) A transaction or series of transactions has taken place with a 
principal purpose of avoiding potential gain recharacterization under 
section 1061(a).
    (B) Determination that the Lookthrough Rule applies to the 
disposition of a Passthrough Interest. Paragraph (b)(9)(i)(A) of this 
section similarly applies with respect to a Passthrough Interest issued 
by an S corporation or a PFIC to the extent the Passthrough Interest is 
treated as an API.
    (ii) Application of the Lookthrough Rule. If the Lookthrough Rule 
applies, for purposes of applying an Owner Taxpayer's Recharacterization 
Amount, as described in paragraph (a) of this section--
    (A) The Owner Taxpayer must include the entire amount of capital 
gain recognized on the disposition of an API by the Owner Taxpayer in 
the Owner Taxpayer's API One Year Disposition Amount; and
    (B) The Owner Taxpayer must include in its Three Year Disposition 
Amount an amount equal its One Year Disposition Amount (determined under 
paragraph (b)(9)(ii)(A) of this section) reduced by the Owner Taxpayer's 
share of the amount of any gain, directly or indirectly, from assets 
held for three years or less that would have been allocated to the Owner 
Taxpayer (to the extent attributable to the transferred API) by the 
partnership if the partnership had sold all of its property in a fully 
taxable transaction for cash in an amount equal to the fair market value 
of such property (taking into account section 7701(g)) immediately prior 
to the Owner Taxpayer's transfer of the API.
    (C) In the case of an API disposition by an API Holder that is a 
Passthrough Entity and not an Owner Taxpayer, the principles set forth 
in paragraph (b)(9)(ii)(A) of this section must be applied to determine 
the amount to include in the Owner Taxpayer's One Year Distributive 
Amount and in paragraph (b)(9)(ii)(B) of this section to determine the 
amounts included in the Owner Taxpayer's Three Year Distributive Share 
Amount.
    (10) Section 83. Except with respect to any portion of the interest 
that is a capital interest under Sec.  1.1061-3(c), this section applies 
regardless of whether an Owner Taxpayer or Passthrough Entity has made 
an election under section 83(b) or included amounts in gross income 
under section 83.
    (c) Examples--(1) Recharacterization rules. The rules of paragraph 
(a) of this section are illustrated by the following examples. Unless 
otherwise stated, all gains and losses are long-term capital gains and 
losses, none of the long-term capital gain or loss in this section is 
capital gain or loss not taken into account for purposes of section 1061 
under paragraph (b)(7) of this section, and neither the Lookthrough Rule 
nor section 751 is applicable.
    (i) Example 1: Determination of API One Year and Three Year 
Distributive Share Amounts--(A) Facts. A holds an API in PRS but has no 
capital interest in PRS and is not entitled to a Capital Interest 
Allocation with respect to PRS. During the taxable year, PRS allocates 
to A $20 of long-term capital gain from the sale of capital asset X 
(which had been held by PRS for two years) and $40 of long-term capital 
gain from the sale of capital asset Y (which had held by PRS for five 
years). A has

[[Page 236]]

no other items of long-term capital gain or loss with respect to its 
interest in PRS during the taxable year. A has no other long-term 
capital gains or losses with respect to any other API during the taxable 
year.
    (B) Determination of A's API One Year Distributive Share Amount. 
Under paragraph (a)(3)(i) of this section, A has an API One Year 
Distributive Share Amount of $60. This amount is the sum of the $20 of 
the long-term capital gain allocated to A from PRS's sale of capital 
asset X and the $40 of long-term capital gain allocated to A from PRS's 
sale of capital asset Y.
    (C) Determination of A's API Three Year Distributive Share Amount. 
(1) Under paragraph (a)(3)(ii) of this section, A's API Three Year 
Distributive Share Amount is equal to A's API One Year Distributive 
Amount, $60, less the sum of:
    (i) The items included in the API One Year Distributive Share Amount 
that would not be treated as a long-term gain or loss if three years is 
substituted for one year in paragraphs (3) and (4) of section 1222, $20; 
and
    (ii) Adjustments resulting from the application of the Lookthrough 
Rule under paragraph (b)(9)(ii) of this section, which under the facts 
in paragraph (c)(1)(i)(A) of this section, is inapplicable.
    (2) Thus, A's Three Year API Distributive Share Amount is $40.
    (D) Determination of A's Recharacterization Amount. Under paragraph 
(a)(2)(i) of this section, A's One Year Gain amount is equal to A's API 
One Year Distributive Share Amount, $60. A's Three Year Gain Amount is 
equal to A's API Three Year Distributive Share Amount, $40. Under 
paragraph (a)(1) of this section, A's Recharacterization Amount is A's 
One Year Gain Amount, minus A's Three Year Gain Amount, or $20.
    (ii) Example 2: API One Year and Three Year Disposition Amounts--(A) 
Facts. During the taxable year, A disposes of an API that A has held for 
four years for a $100 gain. Additionally, A sells Distributed API 
Property for a $300 gain at a time when A has a two-year holding period 
in such property. A has no other items of long-term capital gain or loss 
with respect to any API in the year.
    (B) Determination of A's API One Year and Three Year Disposition 
Amounts. Under paragraph (a)(4)(i) of this section, A's API One Year 
Disposition Amount is $400. This amount is the sum of A's $300 of long-
term capital gain on A's disposition of the Distributed API Property and 
A's $100 of long-term capital gain on the disposition of the API. Under 
paragraph (a)(4)(ii) of this section, A's Three Year Disposition Amount 
is $100, which is the amount of long-term capital gain that A recognized 
upon disposition of the API held for more than three years. Under 
paragraph (a)(2) of this section, A's One Year Gain Amount is $400 and 
A's Three Year Gain Amount is $100.
    (C) Determination of A's Recharacterization Amount. Under paragraph 
(a)(1) of this section, A's Recharacterization Amount is $300, which is 
the difference between A's One Year Gain Amount and Three Year Gain 
Amount.
    (iii) Example 3: Determination of One Year Gain Amount, Three Year 
Gain Amount, and Recharacterization Amount--(A) Facts. A holds an API in 
each of PRS1 and PRS2. With respect to PRS1, A's API One Year 
Distributive Share Amount is $100 and A's API Three Year Distributive 
Share Amount is ($200). With respect to PRS2, A's API One Year 
Distributive Share Amount is $600 and A's API Three Year Distributive 
Share Amount is $300. During the taxable year, A also has an API One 
Year Disposition Amount of $200 of gain. A has no other items of long-
term capital gain or loss with respect to an API for the taxable year.
    (B) Determination of A's One Year Gain Amount. Under paragraph 
(a)(2) of this section, A's One Year Gain Amount is $900, which is an 
amount equal to A's $100 API One Year Distributive Share Gain from PRS1 
and A's $600 API One Year Distributive Share from PRS2 (a combined net 
API One Year Distributive Share Amount of $700) plus A's $200 API One 
Year Disposition Amount.
    (C) Determination of A's Three Year Gain Amount. Under paragraph 
(a)(2) of this section, A's Three Year Gain Amount is $100, which is 
equal to A's combined net API Three Year Distributive Share Amount for 
the taxable year

[[Page 237]]

(A's $200 API Three Year Distributive Share Amount loss from PRS1 plus 
A's API Three Year Distributive Share Amount Gain of $300 from PRS2). A 
does not have an API Three Year Disposition Amount.
    (D) Determination of A's Recharacterization Amount. Under paragraph 
(a)(1) of this section, A's Recharacterization Amount is $800. (A's One 
Year Gain Amount of $900 less A's Three Year Gain Amount of $100.)
    (2) Special rules examples. The principles of paragraph (b) of this 
section are illustrated by the following examples.
    (i) Example 1: Lookthrough Rule. On July 1, 2021, A and B form 
partnership PRS. At the time of PRS's formation, A agrees to provide 
substantial services to PRS in exchange for a 20% profits interest in 
PRS, and B, a partner that is an Unrelated Non-Service Partner, 
contributes $1 million in exchange for an interest in PRS and PRS 
immediately uses the capital to purchase marketable securities. On July 
1, 2023, C, another Unrelated Non-Service Partner becomes legally 
obligated to contribute capital to PRS ($75 million) for the purposes of 
investing in and developing Specified Assets and is admitted into PRS. 
On July 3, 2023, and after C makes a contribution of $75 million, PRS 
uses this capital to acquire stock in portfolio company Z. On July 1, 
2025, when Z has a value of $500 million and the value of the marketable 
securities is $2 million, A sells its API in PRS for $85.2 million. As a 
result of this sale, the Lookthrough Rule applies because B's 
contribution was non-substantial under paragraph (b)(9)(i)(A)(1) of this 
section. Therefore, A includes $85.2 million in its API One Year 
Disposition Amount and under paragraph (b)(9)(ii)(B) of this section, 
$200,000 (20% share of $1 million gain in marketable securities) in its 
API Three Year Disposition Amount. Accordingly, under paragraph (a)(1) 
of this section, A's Recharacterization Amount is $85 million.
    (ii) Example 2: Installment sale gain. On December 22, 2021, A 
disposed of A's API in an installment sale. At the time of the 
disposition, A had held its API for two years. A received a payment with 
respect to the installment sale during A's 2022 taxable year causing A 
to recognize $200 of long-term capital gain. The $200 long-term capital 
gain recognized in 2022 is subject to section 1061 because it is 
recognized after December 31, 2017. Accordingly, the $200 of long-term 
capital gain recognized by A in 2022 is included in A's API One Year 
Disposition Amount. The $200 of long-term capital gain is not in A's API 
Three Year Disposition Amount because the API was not held for more than 
three years at the time of its disposition.
    (iii) Example 3: REIT capital gain dividend. During the taxable 
year, A holds an API in PRS. PRS holds an interest in REIT. During the 
taxable year, REIT distributes a $1,000 capital gain dividend to PRS of 
which 50% is allocable to A's API. Part of the capital gain dividend for 
the year results from section 1231 gain. In accordance with Sec.  
1.1061-6(c)(1)(i), REIT discloses to PRS the One Year Amounts Disclosure 
of $400, which is the $1000 capital gain dividend reduced by the $600 of 
section 1231 capital gain dividend included in that amount. Part of the 
One Year Amounts Disclosure for the year results from gain from property 
held for three years or less. In accordance with Sec.  1.1061-
6(c)(1)(ii), REIT also discloses the Three Year Amounts Disclosure of 
$150, which is the $400 One Year Amounts Disclosure reduced by the $250 
of gain attributable to property held for three years or less. PRS 
includes a $200 gain in determining A's API One Year Distributive Share 
Amount and a $75 gain in determining A's API Three Year Distributive 
Share Amount. See paragraphs (b)(5)(i) and (ii) of this section.
    (d) Applicability date. The provisions of this section apply to 
taxable years of Owner Taxpayers and Passthrough Entities beginning on 
or after January 19, 2021. An Owner Taxpayer or Passthrough Entity may 
choose to apply this section to a taxable year beginning after December 
31, 2017, provided that they apply the Section 1061 Regulations in their 
entirety to that year and all subsequent years.

[T.D. 9945, 86 FR 5480, Jan. 19, 2021]

[[Page 238]]



Sec.  1.1061-5  Section 1061(d) transfers to related persons.

    (a) In general. If an Owner Taxpayer transfers any API or 
Distributed API Property, directly or indirectly, to a Section 1061(d) 
Related Person (as defined in paragraph (e) of this section), the Owner 
Taxpayer must include in gross income as short-term capital gain, an 
amount equal to--
    (1) The short-term capital gain recognized upon the API transfer 
without regard to this paragraph (a); and
    (2) The lesser of--
    (i) The amount of net long-term capital gain recognized by the Owner 
Taxpayer upon the transfer of such interest; or
    (ii) The amount treated as short-term capital gain under paragraph 
(c) of this section (Section 1061(d) Recharacterization Amount).
    (b) Transfer. For purposes of this section, the term transfer means 
a sale or exchange in which gain is recognized by the Owner Taxpayer 
under chapter 1 of the Internal Revenue Code.
    (c) Section 1061(d) Recharacterization Amount. To the extent an 
Owner Taxpayer recognizes long-term capital gain upon a transfer of an 
API to a Section 1061(d) Related Person, the Owner Taxpayer's Section 
1061(d) Recharacterization Amount is the amount of net long-term capital 
gain (excluding amounts not taken into account for purposes of section 
1061 under Sec.  1.1061-4(b)(7)) from assets held for three years or 
less that would have been allocated to the Owner Taxpayer (to the extent 
attributable to the transferred API) by the partnership if the 
partnership had sold all of its property in a fully taxable transaction 
for cash in an amount equal to the fair market value of such property 
(taking into account section 7701(g)) immediately prior to the Owner 
Taxpayer's transfer of the API. If only a portion of an Owner Taxpayer's 
API is transferred, this paragraph (c) shall apply with respect to the 
portion of gain attributable to the transferred interest.
    (d) Special rules. For purposes of this section, the following rules 
are applicable.
    (1) An Owner Taxpayer will be treated as transferring the Owner 
Taxpayer's share of any Indirect API or Distributed API Property if the 
Indirect API or Distributed API Property is transferred by the API 
Holder to a person that is a Section 1061(d) Related Person with respect 
to the Owner Taxpayer.
    (2) The rules set forth in paragraphs (a), (b), and (c) of this 
section apply upon the transfer of a Passthrough Interest issued by an S 
corporation or PFIC to the extent the Passthrough Interest is treated as 
an API.
    (e) Section 1061(d) Related Person. For purposes of this section, 
the term Section 1061(d) Related Person means--
    (1) A person that is a member of the taxpayer's family within the 
meaning of section 318(a)(1);
    (2) A person that performed a service within the current calendar 
year or the preceding three calendar years in a Relevant ATB to the API 
transferred by taxpayer; or
    (3) A Passthrough Entity to the extent that a person described in 
paragraph (e)(1) or (2) of this section owns an interest, directly or 
indirectly.
    (f) Examples. The following examples illustrate the rules of this 
section.
    (1) Example 1: Transfer to child by gift. A, an individual, performs 
services in an ATB and has held an API in connection with those services 
for 10 years. The API has a fair market value of $1,000 and a tax basis 
of $0, and no debt is associated with the API. A transfers all of the 
API to A's daughter as a gift. A's daughter is a section 1061(d) Related 
Person but A's gift is not a transfer as described in paragraph (b) of 
this section thus section 1061(d) does not apply to A's gift. However, 
the API remains an API in the hands of A's daughter under Sec.  1.1061-
2(a)(1)(i).
    (2) Example 2: Transfer of an API to a partnership owned by Section 
1061(d) Related Persons--(i) Facts. A, B, and C are equal partners in 
GP, a partnership. GP holds only one asset, an API in PRS1 which is an 
Indirect API as to each A, B, and C. A, B, and C each provides services 
in the ATB in connection with which GP was transferred its API in PRS1. 
A and B contribute their interests in GP to PRS2 in a Section 721(a) 
exchange for interests in PRS2.
    (ii) Application of section 1061(d). Because the contribution by A 
and B of

[[Page 239]]

their interest in GP to PRS2 is an exchange in which no gain is 
recognized by either A or B, the contribution is not a transfer as 
described in paragraph (b) of this section thus section 1061(d) does not 
apply to A and B's contribution. However, the API remains an API in the 
hands of PRS2 under Sec.  1.1061-2(a)(1)(i).
    (3) Example 3: Transfer of an API to a Section 1061(d) Related 
Person. A holds an API in GP, a partnership which A has owned for four 
years. A transfers the API to a Section 1061(d) Related Person described 
in paragraph (e) of this section in exchange for $100 of cash, resulting 
in A recognizing long-term capital gain of $100. Because this is a 
transfer described in paragraph (b) of this section, section 1061(d) 
applies to the transfer of A's API and A must determine its Section 
1061(d) Recharacterization Amount under paragraph (c) of this section. 
If, immediately prior to A's transfer of the API, the partnership had 
sold all of its assets in a fully taxable transaction for cash equal of 
the fair market value of the assets, A's share of the net long-term 
capital gain (excluding amounts not taken into account for purposes of 
section 1061 under Sec.  1.1061-4(b)(7)) from assets held for three 
years or less would have been $120. Thus, A's Section 1061(d) 
Recharacterization Amount is $120. As a result, A's $100 long-term 
capital gain is re-characterized as short-term capital gain under 
paragraph (a) of this section. The API remains an API in the hands of 
the Section 1061(d) Related Person under Sec.  1.1061-2(a)(1)(i).
    (g) Applicability date. The provisions of this section apply to 
taxable years of Owner Taxpayers and Passthrough Entities beginning on 
or after January 19, 2021. An Owner Taxpayer or Passthrough Entity may 
choose to apply this section to a taxable year beginning after December 
31, 2017, provided that they apply the Section 1061 Regulations in their 
entirety to that year and all subsequent years.

[T.D. 9945, 86 FR 5480, Jan. 19, 2021]



Sec.  1.1061-6  Reporting rules.

    (a) Owner Taxpayer filing requirements-(1) In general. An Owner 
Taxpayer must file such information with the IRS as the Commissioner of 
Internal Revenue or the Commissioner's delegate (Commissioner) may 
require in forms, instructions, or other guidance as is necessary for 
the Commissioner to determine that the Owner Taxpayer has properly 
complied with section 1061 and the Section 1061 Regulations. If an Owner 
Taxpayer requires information from a Passthrough Entity to determine the 
Capital Interest Disposition Amount or the Section 1061(d) 
Recharacterization Amount, the Owner Taxpayer must request such 
information from that entity.
    (2) Failure to obtain information. Paragraph (b)(1) of this section 
requires certain Passthrough Entities to furnish an Owner Taxpayer with 
certain amounts necessary to determine its Recharacterization Amount and 
meet its reporting requirements under paragraph (a)(1) of this section. 
To the extent that an Owner Taxpayer is not furnished the information 
required to be furnished under paragraph (b)(1) of this section in such 
time and in such manner as required by the Commissioner and the Owner 
Taxpayer is not otherwise able to substantiate all or a part of these 
amounts to the satisfaction of the Commissioner, then if the information 
with respect to the determination of the--
    (i) API One Year Distributive Share Amount under Sec.  1.1061-
4(a)(3)(i) is not furnished, the API One Year Distributive Share Amount 
will not be reduced by--
    (A) Amounts not taken into account for purposes of section 1061 
under Sec.  1.1061-4(b)(7); or
    (B) Capital Interest Gains and Losses as determined under Sec.  
1.1061-3(c)(2).
    (ii) API Three Year Distributive Share Amount determined under Sec.  
1.1061-4(a)(3)(ii) is not furnished, all items included in the API One 
Year Distributive Share Amount are treated as items that would not be 
treated as long-term capital gain or loss, if three years is substituted 
for one year in paragraphs (3) and (4) of section 1222.
    (b) Passthrough Entity filing requirements and reporting--(1) 
Requirement to file information with the IRS and to furnish information 
to API Holder. A Passthrough Entity must file such information with the 
IRS as the Commissioner

[[Page 240]]

may require in forms, instructions, or other guidance as is necessary 
for the Commissioner to determine that it and its partners have complied 
with section 1061 and the Section 1061 Regulations. A Passthrough Entity 
that has issued an API must furnish to the API Holder, including an 
Owner Taxpayer, such information at such time and in such manner as the 
Commissioner may require in forms, instructions, or other guidance as is 
necessary to determine the One Year Gain Amount and the Three Year Gain 
Amount with respect to an Owner Taxpayer that directly or indirectly 
holds the API. A Passthrough Entity that has furnished information to 
the API Holder must file such information with the IRS, at such time and 
in such manner as the Commissioner may require in forms, instructions, 
or other guidance. This information includes:
    (i) The API One Year Distributive Share Amount and the API Three 
Year Distributive Share Amount (as determined under Sec.  1.1061-4);
    (ii) Capital gains and losses allocated to the API Holder that are 
excluded from section 1061 under Sec.  1.1061-4(b)(7);
    (iii) Capital Interest Gains and Losses allocated to the API Holder 
(as determined under Sec.  1.1061-3(c)); and
    (iv) In the case of a disposition by an API Holder of an interest in 
the Passthrough Entity during the taxable year, upon the request of an 
API Holder, any information required by the API Holder to properly take 
the disposition into account under section 1061, including--
    (A) Information necessary to apply the Lookthrough Rule and to 
determine the API Holder's Capital Interest Disposition Amount; and
    (B) Information necessary to determine an Owner Taxpayer's Section 
1061(d) Recharacterization Amount.
    (2) Requirement to request, furnish, and file information in tiered 
structures--(i) Requirement to request information. If a Passthrough 
Entity requires information to meet its reporting and filing 
requirements under this section (in addition to any information required 
to be furnished to the Passthrough Entity under paragraph (b)(1) of this 
section) from a lower-tier entity in which it holds an interest, the 
Passthrough Entity must request such information from that entity.
    (ii) Requirement to furnish and file information. If information is 
requested of a Passthrough Entity under paragraph (b)(2)(i) of this 
section, the Passthrough Entity must furnish the requested information 
to the person making the request but only to the extent the information 
is necessary for the requesting Passthrough Entity to meet its reporting 
and filing requirements under this section or is required by the 
Commissioner in forms, instructions, or other guidance. If the person 
requesting the information is an API Holder in the Passthrough Entity, 
the information is furnished under paragraph (b)(1) of this section. If 
the Passthrough Entity requesting the information is not an API Holder, 
the Passthrough Entity must furnish the information to the requesting 
Passthrough Entity as required by the Commissioner in forms, 
instructions, or other guidance.
    (iii) Timing of requesting and furnishing information--(A) 
Requesting information. A Passthrough Entity described in paragraph 
(b)(2)(i) of this section must request information under paragraph 
(b)(2)(i) of this section by the later of the 30th day after the close 
of the taxable year to which the information request relates or 14 days 
after the date of a request for information from an upper-tier 
Passthrough Entity.
    (B) Furnishing information--(1) In general. Except as provided in 
paragraph (b)(2)(iii)(B)(2) of this section, requested information must 
be furnished by the date on which the entity is required to furnish 
information under section 6031(b) or under section 6037(b), as 
applicable.
    (2) Late requests. Information with respect to a taxable year that 
is requested by an upper-tier Passthrough Entity after the date that is 
14 days prior to the due date for a lower-tier Passthrough Entity to 
furnish and file information under section 6031(b) or section 6037(b), 
as applicable, must be furnished and filed in the time and manner 
prescribed by forms, instructions and other guidance.

[[Page 241]]

    (iv) Manner of requesting information. Information may be requested 
electronically or in any manner that is agreed to by the parties.
    (v) Recordkeeping requirement. Any Passthrough Entity receiving a 
request for information must retain a copy of the request and the date 
received in its books and records.
    (vi) Passthrough Entity is not furnished information to meet its 
reporting obligations under paragraph (b)(1) of this section. If an 
upper-tier Passthrough Entity holds an interest in a lower-tier 
Passthrough Entity and it is not furnished the information described in 
paragraph (b)(1) of this section, or, alternatively, if it has not been 
furnished information after having properly requested the information 
under this paragraph (b)(2), the upper-tier Passthrough Entity must take 
actions to otherwise determine and substantiate the missing information. 
To the extent that the upper-tier Passthrough Entity is not able to 
otherwise substantiate and determine the missing information to the 
satisfaction of the Commissioner, the upper-tier Passthrough Entity must 
treat these amounts as provided under paragraph (a)(2) of this section. 
The upper-tier Passthrough Entity must provide notice to the API Holder 
and the IRS regarding the application of this paragraph (b)(2) to the 
information being reported as required in forms, instructions, and other 
guidance.
    (vii) Filing requirements. Both the Passthrough Entity requesting 
the information and the Passthrough Entity furnishing the information 
must file all information with the IRS as the Commissioner may require 
in forms, instructions, or other guidance.
    (viii) Penalties. In addition to the requirement in section 1061(e) 
that the Secretary shall require reporting (at the time and in the 
manner prescribed by the Secretary) as is necessary to carry out the 
purposes of this section, the information required to be furnished under 
this paragraph (b) is also required to be furnished under sections 
6031(b) and 6037(b). Failure to report as required under this paragraph 
(b) will be subject to penalties under section 6722.
    (c) Regulated investment company (RIC) and real estate investment 
trust (REIT) reporting--(1) Section 1061 disclosures. A RIC or REIT that 
reports or designates a dividend, or part thereof, as a capital gain 
dividend, may, in addition to the information otherwise required to be 
furnished to a shareholder, disclose two amounts for purposes of section 
1061--
    (i) One Year Amounts Disclosure. The One Year Amounts Disclosure of 
a RIC or REIT is a disclosure by the RIC or REIT of an amount that is 
attributable to a computation of the RIC's or REIT's net capital gain 
excluding capital gain and capital loss not taken into account for 
purposes of section 1061 under Sec.  1.1061-4(b)(7). The aggregate 
amounts provided in the One Year Amounts Disclosures with respect to a 
taxable year of a RIC or REIT must equal the lesser of the RIC's or 
REIT's net capital gain, excluding any capital gains and capital losses 
not taken into account for purposes of section 1061 under Sec.  1.1061-
4(b)(7), for the taxable year or the RIC's or REIT's aggregate capital 
gain dividends for the taxable year.
    (ii) Three Year Amounts Disclosure. The Three Year Amounts 
Disclosure of a RIC or REIT is a disclosure by the RIC or REIT of an 
amount that is attributable to a computation of the RIC's or REIT's One 
Year Amounts Disclosure substituting ``three years'' for ``one year'' in 
applying section 1222. The aggregate amounts provided in the Three Year 
Amounts Disclosures with respect to a taxable year of a RIC or REIT must 
equal the lesser of the aggregate amounts provided in the RIC's or 
REIT's One Year Amounts Disclosures substituting ``three years'' for 
``one year'' in applying section 1222 for the taxable year or the RIC's 
or REIT's aggregate capital gain dividends for the taxable year.
    (2) Pro rata disclosures. The One Year Amounts Disclosure and Three 
Year Amounts Disclosure made to each shareholder of a RIC or REIT must 
be proportionate to the share of capital gain dividends reported or 
designated to that shareholder for the taxable year.

[[Page 242]]

    (3) Report to shareholders. A RIC or REIT that provides the section 
1061 disclosures described in paragraphs (c)(1)(i) and (ii) of this 
section must provide those section 1061 disclosures in writing to its 
shareholders with the statement described in section 852(b)(3)(C)(i) or 
the notice described in section 857(b)(3)(B) in which the capital gain 
dividend is reported or designated.
    (d) Qualified electing fund (QEF) reporting. A passive foreign 
investment company with respect to which the shareholder has a QEF 
election (as described in section 1295(a)) in effect for the taxable 
year that determines net capital gain as provided in Sec.  1.1293-
1(a)(2)(i)(A), as limited by section 1293(e)(2), may provide some or all 
of the information listed in paragraph (b)(1) of this section (and any 
other relevant information) to its shareholders to enable API Holders to 
determine the amount of their inclusion under section 1293(a)(1) that 
would be included in the API One Year Distributive Share Amounts and API 
Three Year Distributive Share Amounts. To the extent that such 
information is not provided, paragraph (a)(2) of this section will apply 
except that Owner Taxpayers are not permitted to separately substantiate 
the information. An API Holder who receives the additional information 
described in this paragraph (d) must retain such information as required 
by Sec.  1.1295-1(f)(2)(ii).
    (e) Applicability date. The provisions of this section apply to 
taxable years of Owner Taxpayers and Passthrough Entities beginning on 
or after January 19, 2021. An Owner Taxpayer or Passthrough Entity may 
choose to apply this section to a taxable year beginning after December 
31, 2017, provided that they apply the Section 1061 Regulations in their 
entirety to that year and all subsequent years.

[T.D. 9945, 86 FR 5480, Jan. 19, 2021]

                   Changes To Effectuate F.C.C. Policy



Sec.  1.1071-1  Gain from sale or exchange to effectuate policies 
of Federal Communications Commission.

    (a)(1) At the election of the taxpayer, section 1071 postpones the 
recognition of the gain upon the sale or exchange of property if the 
Federal Communications Commission grants the taxpayer a certificate with 
respect to the ownership and control of radio broadcasting stations 
which is in accordance with subparagraph (2) of this paragraph. Any 
taxpayer desiring to obtain the benefits of section 1071 shall file such 
certificate with the Commissioner of Internal Revenue, or the district 
director for the internal revenue district in which the income tax 
return of the taxpayer is required to be filed.
    (2)(i) In the case of a sale or exchange before January 1, 1958, the 
certificate from the Federal Communications Commission must clearly 
identify the property and show that the sale or exchange is necessary or 
appropriate to effectuate the policies of such Commission with respect 
to the ownership and control of radio broadcasting stations.
    (ii) In the case of a sale or exchange after December 31, 1957, the 
certificate from the Federal Communications Commission must clearly 
identify the property and show that the sale or exchange is necessary or 
appropriate to effectuate a change in a policy of, or the adoption of a 
new policy by, such Commission with respect to the ownership and control 
of radio broadcasting stations.
    (3) The certificate shall be accompanied by a detailed statement 
showing the kind of property, the date of acquisition, the cost or other 
basis of the property, the date of sale or exchange, the name and 
address of the transferee, and the amount of money and the fair market 
value of the property other than money received upon such sale or 
exchange.
    (b) Section 1071 applies only in the case of a sale or exchange made 
necessary by reason of the Federal Communications Commission's policies 
as to ownership or control of radio facilities. Section 1071 does not 
apply in the case of a sale or exchange made necessary as a result of 
other matters, such as the operation of a broadcasting station in a 
manner determined by the Commission to be not in the public interest or 
in violation of Federal or State law.
    (c) An election to have the benefits of section 1071 shall be made 
in the manner prescribed in Sec.  1.1071-4.

[[Page 243]]

    (d) For purposes of section 1071, the term radio broadcasting 
includes telecasting.



Sec.  1.1071-2  Nature and effect of election.

    (a) Alternative elections. (1) A taxpayer entitled to the benefits 
of section 1071 in respect of a sale or exchange of property may elect--
    (i) To treat such sale or exchange as an involuntary conversion 
under the provisions of section 1033; or
    (ii) To treat such sale or exchange as an involuntary conversion 
under the provisions of section 1033, and in addition elect to reduce 
the basis of property, in accordance with the regulations prescribed in 
Sec.  1.1071-3, by all or part of the gain that would otherwise be 
recognized under section 1033; or
    (iii) To reduce the basis of property, in accordance with the 
regulations prescribed in Sec.  1.1071-3, by all or part of the gain 
realized upon the sale or exchange.
    (2) The effect of the provisions of subparagraph (1) of this 
paragraph is, in general, to grant the taxpayer an election to treat the 
proceeds of the sale or exchange as the proceeds of an involuntary 
conversion subject to the provisions of section 1033, and a further 
election to reduce the basis of certain property owned by the taxpayer 
by the amount of the gain realized upon the sale or exchange to the 
extent of that portion of the proceeds which is not treated as the 
proceeds of an involuntary conversion.
    (3) An election in respect to a sale or exchange under section 1071 
shall be irrevocable and binding for the taxable year in which the sale 
or exchange takes place and for all subsequent taxable years.
    (b) Application of section 1033. (1) If the taxpayer elects, under 
either paragraph (a)(1) (i) or (ii) of this section, to treat the sale 
or exchange as an involuntary conversion, the provisions of section 
1033, as modified by section 1071, together with the regulations 
prescribed under such sections, shall be applicable in determining the 
amount of recognized gain and the basis of property required as a result 
of such sale or exchange. For the purposes of section 1071 and the 
regulations thereunder, stock of a corporation operating a radio 
broadcasting station shall be treated as property similar or related in 
service or use to the property sold or exchanged. Securities of such a 
corporation other than stock, or securities of a corporation not 
operating a radio broadcasting station, do not constitute property 
similar or related in service or use to the property sold or exchanged. 
If the taxpayer exercises the election referred to in paragraph 
(a)(1)(i) of this section, the gain realized upon such sale or exchange 
shall be recognized to the extent of that part of the money received 
upon the sale or exchange which is not expended in the manner prescribed 
in section 1033 and the regulations thereunder. If, however, the 
taxpayer exercises the elections referred to in paragraph (a)(1)(ii) of 
this section, the amount of the gain which would be recognized, 
determined in the same manner as in the case of an election under 
paragraph (a)(1)(i) of this section, shall not be recognized but shall 
be applied to reduce the basis of property, remaining in the hands of 
the taxpayer after such sale or exchange or acquired by him during the 
same taxable year, which is of a character subject to the allowance for 
depreciation under section 167. Such reduction of basis shall be made in 
accordance with and under the conditions prescribed by Sec.  1.1071-3.
    (2) In the application of section 1033 to determine the recognized 
gain and the basis of property acquired as a result of a sale or 
exchange pursuant to an election under paragraph (a)(1) (i) or (ii) of 
this section, the entire amount of the proceeds of such sale or exchange 
shall be taken into account.
    (c) Example. The application of the provisions of section 1071 may 
be illustrated by the following example:

    Example: A, who makes his return on a calendar year basis, sold in 
1954, for $100,000 cash, stock of X Corporation, which operates a radio 
broadcasting station. A's basis of this stock was $75,000. The sale was 
certified by the Federal Communications Commission as provided in 
section 1071. Soon after, in the same taxable year, A used $50,000 of 
the proceeds of the sale to purchase stock in Y Corporation, which 
operates a radio broadcasting station. A elected in his 1954 return to 
treat such sale and purchase as an involuntary conversion subject to the 
provisions

[[Page 244]]

of section 1033. He also elected at the same time to reduce the basis of 
depreciable property by the amount of the gain that otherwise would be 
recognized under the provisions of section 1033, as made applicable by 
section 1071. The sale results in a recognized gain of $25,000 under 
section 1033. However, this gain is not recognized in this case because 
the taxpayer elected to reduce the basis of other property by the amount 
of the gain. This may be shown as follows:

(1) Sale price of X Corporation stock..............             $100,000
Basis for gain or loss.............................               75,000
                                                    --------------------
  Gain realized....................................               25,000
                                                    ====================
Proceeds of sale...................................              100,000
Amount expended to replace property sold...........               50,000
                                                    --------------------
  Amount not expended in manner prescribed in                     50,000
   section 1033....................................
                                                    ====================
Realized gain, recognized under section 1033 (not                 25,000
 to exceed the unexpended portion of proceeds of
 sale).............................................
Less: Amount applied as a reduction of basis of                   25,000
 depreciable property..............................
                                                    --------------------
  Recognized gain for tax purposes.................                 None
 

    (2) The basis of Y Corporation stock in the hands of A is $50,000, 
computed in accordance with section 1033 and the regulations prescribed 
under that section. The $50,000 basis is computed as follows:

Basis of property sold (converted).................              $75,000
Less: Amount of proceeds not expended..............               50,000
                                                    --------------------
  Balance..........................................               25,000
Plus amount of gain recognized under section 1033..               25,000
                                                    --------------------
  Basis of Y Corporation stock in A's hands........               50,000
 



Sec.  1.1071-3  Reduction of basis of property pursuant to election 
under section 1071.

    (a) General rule. (1) In addition to the adjustments provided in 
section 1016 and other applicable provisions of chapter 1 of the Code 
which adjustments are required to be made with respect to the cost or 
other basis of property, a further adjustment shall be made in the 
amount of the unrecognized gain under section 1071, if the taxpayer so 
elects. Such further adjustment shall be made only with respect to the 
cost or other basis of property which is of a character subject to the 
allowance for depreciation under section 167 (whether or not used in 
connection with a broadcasting business), and which remains in the hands 
of the taxpayer immediately after the sale or exchange in respect of 
which the election is made, or which is acquired by the taxpayer in the 
same taxable year in which such sale or exchange occurs. If the property 
is in the hands of the taxpayer immediately after the sale or exchange, 
the time of reduction of the basis is the date of the sale or exchange; 
in all other cases the time of reduction of the basis is the date of 
acquisition.
    (2) The reduction of basis under section 1071 in the amount of the 
unrecognized gain shall be made in respect of the cost or other basis, 
as of the time prescribed, of all units of property of the specified 
character. The cost or other basis of each unit shall be decreased in an 
amount equal to such proportion of the unrecognized gain as the adjusted 
basis (for determining gain, determined without regard to this section) 
of such unit bears to the aggregate of such adjusted bases of all units 
of such property, but the amount of the decrease shall not be more than 
the amount of such adjusted basis. If in the application of such rule 
the adjusted basis of any unit is reduced to zero, the process shall be 
repeated to reduce the adjusted basis of the remaining units of property 
by the portion of the unrecognized gain which is not absorbed in the 
first application of the rule. For such purpose the adjusted basis of 
the remaining units shall be the adjusted basis for determining gain 
reduced by the amount of the adjustment previously made under this 
section. The process shall be repeated until the entire amount of the 
unrecognized gain has been absorbed.
    (3) The application of the provisions of this section may be 
illustrated by the following example:

    Example: Using the facts given in the example set forth in Sec.  
1.1071-2(c), except that the taxpayer elects to reduce the basis of 
depreciable property in accordance with paragraph (a)(1)(iii) of Sec.  
1.1071-2, the computation may be illustrated as follows:

Sale price of X Corporation stock..................             $100,000
Basis for gain or loss.............................               75,000
                                                    --------------------
Realized gain (recognized except for the election                $25,000
 under Sec.   1.1071-1)............................
                                                    ====================
Adjusted basis of other depreciable property in
 hands of A immediately after sale:
   Building........................................               80,000
   Transmitter.....................................               16,000

[[Page 245]]

 
   Fixtures........................................                4,000
                                                    --------------------
     Total.........................................              100,000
                                                    ====================
Computation of reduction:
  Building (80,000/100,000) x $25,000 (gain).......               20,000
  Transmitter (16,000/100,000) x $25,000...........                4,000
  Fixtures (4,000/100,000) x $25,000...............                1,000
                                                    --------------------
    Total reduction................................               25,000
                                                    ====================
New basis of assets:
  Building ($80,000 minus $20,000).................               60,000
  Transmitter ($16,000 minus $4,000)...............               12,000
  Fixtures ($4,000 minus $1,000)...................                3,000
                                                    --------------------
    Total adjusted basis after reduction under                    75,000
     section 1071..................................
                                                    ====================
Realized gain upon sale of X Corporation stock.....               25,000
Less: Amount applied as a reduction to basis of                   25,000
 depreciable property..............................
                                                    --------------------
    Recognized gain for tax purposes...............                 None
 


    (b) Special cases. With the consent of the Commissioner, the 
taxpayer may, however, have the basis of the various units of property 
of the class specified in section 1071 and this section adjusted in a 
manner different from the general rule set forth in paragraph (a) of 
this section. Variations from such general rule may, for example, 
involve adjusting the basis of only certain units of such property. The 
request for variations from such general rule should be filed by the 
taxpayer with his return for the taxable year in which he elects to have 
the basis of property reduced under section 1071. Agreement between the 
taxpayer and the Commissioner as to any variations from such general 
rule shall be effective only if incorporated in a closing agreement 
entered into under the provisions of section 7121.



Sec.  1.1071-4  Manner of election.

    (a) An election under the provisions of section 1071 shall be in the 
form of a written statement and shall be executed and filed in 
duplicate. Such statement shall be signed by the taxpayer or his 
authorized representative. In the case of a corporation, the statement 
shall be signed with the corporate name, followed by the signature and 
title of an officer of the corporation empowered to sign for the 
corporation, and the corporate seal must be affixed. An election under 
section 1071 to reduce the basis of property and an election under such 
section to treat the sale or exchange as an involuntary conversion under 
section 1033 may be exercised independently of each other. An election 
under section 1071 must be filed with the return for the taxable year in 
which the sale or exchange occurs. Where practicable, the certificate of 
the Federal Communications Commission required by Sec.  1.1071-1 should 
be filed with the election.
    (b) If, in pursuance of an election to have the basis of its 
property adjusted under section 1071, the taxpayer desires to have such 
basis adjusted in any manner different from the general rule set forth 
in paragraph (a) of Sec.  1.1071-3, the precise method (including 
allocation of amounts) should be set forth in detail on separate sheets 
accompanying the election. Consent by the Commissioner to any departure 
from such general rule shall be effected only by a closing agreement 
entered into under the provisions of section 7121.

                 Exchanges in Obedience to S.E.C. Orders



Sec.  1.1081-1  Terms used.

    The following terms, when used in this section and Sec. Sec.  
1.1081-2 to 1.1083-1, inclusive, shall have the meanings assigned to 
them in section 1083: Order of the Securities and Exchange Commission; 
registered holding company; holding company system; associate company; 
majority-owned subsidiary company; system group; nonexempt property; and 
stock or securities. Any other term used in this section and Sec. Sec.  
1.1081-2 to 1.1083-1, inclusive, which is defined in the Internal 
Revenue Code of 1954, shall be given the respective definition contained 
in such Code.



Sec.  1.1081-2  Purpose and scope of exception.

    (a) The general rule is that the entire amount of gain or loss from 
the sale or exchange of property is to be recognized (see section 1002) 
and that the entire amount received as a dividend is to be included in 
gross income. (See sections 61 and 301.) Exceptions to the general rule 
are provided elsewhere in

[[Page 246]]

subchapters C and O, chapter 1 of the Code, one of which is that made by 
section 1081 with respect to exchanges, sales, and distributions 
specifically described in section 1081. Section 1081 provides the extent 
to which gain or loss is not to be recognized on (1) the receipt of a 
distribution described in section 1081(c)(2), or (2) an exchange or 
sale, or the receipt of a distribution, made in obedience to an order of 
the Securities and Exchange Commission, which is issued to effectuate 
the provisions of section 11 (b) of the Public Utility Holding Company 
Act of 1935 (15 U.S.C. 79k (b)). Section 331 provides that a 
distribution in liquidation of a corporation shall be treated as an 
exchange. Such distribution is to be treated as an exchange under the 
provisions of sections 1081 to 1083, inclusive. The order of the 
Securities and Exchange Commission must be one requiring or approving 
action which the Commission finds to be necessary or appropriate to 
effect a simplification or geographical integration of a particular 
public utility holding company system. For specific requirements with 
respect to an order of the Securities and Exchange Commission, see 
section 1081 (f).
    (b) The requirements for nonrecognition of gain or loss as provided 
in section 1081 are precisely stated with respect to the following 
general types of transactions:
    (1) The exchange that is provided for in section 1081 (a), in which 
stock or securities in a registered holding company or a majority-owned 
subsidiary company are exchanged for stock or securities.
    (2) The exchange that is provided for in section 1081 (b), in which 
a registered holding company or an associate company of a registered 
holding company exchanges property for property.
    (3) The distribution that is provided for in section 1081 (c)(1), in 
which stock or securities are distributed to a shareholder in a 
corporation which is a registered holding company or a majority-owned 
subsidiary company, or the distribution that is provided for in section 
1081 (c)(2), in which a corporation distributes to a shareholder, rights 
to acquire common stock in a second corporation.
    (4) The transfer that is provided for in section 1081 (d), in which 
a corporation which is a member of a system group transfers property to 
another member of the same system group.

Certain rules with respect to the receipt of nonexempt property on an 
exchange described in section 1081 (a) are prescribed in section 1081 
(e).
    (c) These exceptions to the general rule are to be strictly 
construed. Unless both the purpose and the specific requirements of 
sections 1081 to 1083, inclusive, are clearly met, the recognition of 
gain or loss upon the exchange, sale, or distribution will not be 
postponed under those sections. Moreover, even though a taxable 
transaction occurs in connection or simultaneously with a realization of 
gain or loss to which nonrecognition is accorded, nevertheless, 
nonrecognition will not be accorded to such taxable transaction. In 
other words, the provisions of section 1081 do not extend in any case to 
gain or loss other than that realized from and directly attributable to 
a disposition of property as such, or the receipt of a corporate 
distribution as such, in an exchange, sale, or distribution specifically 
described in section 1081.
    (d) The application of the provisions of part VI (section 1081 and 
following), subchapter O, chapter 1 of the Code, is intended to result 
only in postponing the recognition of gain or loss until a disposition 
of property is made which is not covered by such provisions, and, in the 
case of an exchange or sale subject to the provisions of section 1081 
(b), in the reduction of basis of certain property. The provisions of 
section 1082 with respect to the continuation of basis and the reduction 
in basis are designed to effect these results. Although the time of 
recognition may be shifted, there must be a true reflection of income in 
all cases, and it is intended that the provisions of such part VI, shall 
not be construed or applied in such a way as to defeat this purpose.



Sec.  1.1081-3  Exchanges of stock or securities solely for stock 
or securities.

    The exchange, without the recognition of gain or loss, that is 
provided for

[[Page 247]]

in section 1081 (a) must be one in which stock or securities in a 
corporation which is a registered holding company or a majority-owned 
subsidiary company are exchanged solely for stock or securities other 
than stock or securities which constitute nonexempt property. An 
exchange is not within the provisions of section 1081 (a) unless the 
stock or securities transferred and those received are stock or 
securities as defined by section 1083 (f). The stock or securities which 
may be received without the recognition of gain or loss are not limited 
to stock or securities in the corporation from which they are received. 
An exchange within the provisions of section 1081 (a) may be a 
transaction between the holder of stock or securities and the 
corporation which issued the stock or securities. Also the exchange may 
be made by a holder of stock or securities with an associate company 
(i.e., a corporation in the same holding company system with the issuing 
corporation) which is a registered holding company or a majority-owned 
subsidiary company. In either case, the nonrecognition provisions of 
section 1081 (a) apply only to the holder of the stock or securities. 
However, the transferee corporation must be acting in obedience to an 
order of the Securities and Exchange Commission directed to such 
corporation, if no gain or loss is to be recognized to the holder of the 
stock or securities who makes the exchange with such corporation. See 
also section 1081(b), in case the holder of the stock or securities is a 
registered holding company or an associate company of a registered 
holding company. An exchange is not within the provisions of section 
1081(a) if it is within the provisions of section 1081(d), relating to 
transfers within a system group. For treatment when nonexempt property 
is received, see section 1081(e); for further limitations, see section 
1081(f).



Sec.  1.1081-4  Exchanges of property for property by corporations.

    (a) Application of section 1081(b). Section 1081(b) applies only to 
the transfers specified therein with respect to which section 1081(d) is 
inapplicable, and deals only with such transfers if gain is realized 
upon the sale or other disposition effected by such transfers. If loss 
is realized section 1081(b) is inapplicable and the application of other 
provisions of subtitle A of the Code must be determined. See section 
1081(g). If section 1081(b) is applicable, the other provisions of 
subchapters C and O, chapter 1 of the Code, relating to the 
nonrecognition of gain are inapplicable, and the conditions under which, 
and the extent to which, the realized gain is not recognized are set 
forth in paragraphs (b), (c), (d), (e), and (f) of this section.
    (b) Nonrecognition of gain; no nonexempt proceeds. No gain is 
recognized to a transferor corporation upon the sale or other 
disposition of property transferred by such transferor corporation in 
exchange solely for property other than nonexempt property, as defined 
in section 1083(e), but only if all of the following requirements are 
satisfied:
    (1) The transferor corporation is, under the definition in section 
1083 (b), a registered holding company or an associate company of a 
registered holding company;
    (2) Such transfer is in obedience to an order of the Securities and 
Exchange Commission (as defined in section 1083 (a)) and such order 
satisfies the requirements of section 1081 (f);
    (3) The transferor corporation has filed the required consent to the 
regulations under section 1082(a)(2) (see paragraph (g) of this 
section); and
    (4) The entire amount of the gain, as determined under section 1001, 
can be applied in reduction of basis under section 1082(a)(2).
    (c) Nonrecognition of gain; nonexempt proceeds. If the transaction 
would be within the provisions of paragraph (b) of this section if it 
were not for the fact that the property received in exchange consists in 
whole or in part of nonexempt property (as defined in section 1083 (e)), 
then no gain is recognized if such nonexempt property, or an amount 
equal to the fair market value of such nonexempt property at the time of 
the transfer.
    (1) Is expended within the required 24-month period for property 
other than nonexempt property; or
    (2) Is invested within the required 24-month period as a 
contribution to the

[[Page 248]]

capital, or as paid-in surplus, of another corporation;

but only if the expenditure or investment is made
    (3) In accordance with an order of the Securities and Exchange 
Commission (as defined in section 1083 (a)) which satisfies the 
requirements of section 1081 (f) and which recites that such expenditure 
or investment by the transferor corporation is necessary or appropriate 
to the integration or simplification of the holding company system of 
which the transferor corporation is a member; and
    (4) The required consent, waiver, and bond have been executed and 
filed. See paragraphs (g) and (h) of this section.
    (d) Recognition of gain in part; insufficient expenditure or 
investment in case of nonexempt proceeds. If the transaction would be 
within the provisions of paragraph (c) of this section if it were not 
for the fact that the amount expended or invested is less than the fair 
market value of the nonexempt property received in exchange, then the 
gain, if any, is recognized, but in an amount not in excess of the 
amount by which the fair market value of such nonexempt property at the 
time of the transfer exceeds the amount so expended and invested.
    (e) Items treated as expenditures for the purpose of paragraphs (c) 
and (d) of this section. For the purposes of paragraphs (c) and (d) of 
this section, the following are treated as expenditures for property 
other than nonexempt property:
    (1) A distribution in cancellation or redemption (except a 
distribution having the effect of a dividend) of the whole or a part of 
the transferor's own stock (not acquired on the transfer);
    (2) A payment in complete or partial retirement or cancellation of 
securities representing indebtedness of the transferor or a complete or 
partial retirement or cancellation of such securities which is a part of 
the consideration for the transfer; and
    (3) If, on the transfer, a liability of the transferor is assumed, 
or property of the transferor is transferred subject to a liability, the 
amount of such liability.
    (f) Recognition of gain in part; inability to reduce basis. If the 
transaction would be within the provisions of paragraph (b) or (c) of 
this section, if it were not for the fact that an amount of gain cannot 
be applied in reduction of basis under section 1082(a)(2), then the 
gain, if any, is recognized, but in an amount not in excess of the 
amount which cannot be so applied in reduction of basis. If the 
transaction would be within the provisions of paragraph (d) of this 
section, if it were not for the fact that an amount of gain cannot be 
applied in reduction of basis under section 1082(a)(2), then the gain, 
if any, is recognized, but in an amount not in excess of the aggregate 
of--
    (1) The amount of gain which would be recognized under paragraph (d) 
of this section if there were no inability to reduce basis under section 
1082(a)(2); and
    (2) The amount of gain which cannot be applied in reduction of basis 
under section 1082(a)(2).
    (g) Consent to regulations under section 1082(a)(2). To be entitled 
to the benefits of the provisions of section 1081(b), a corporation must 
file with its return for the taxable year in which the transfer occurs a 
consent to have the basis of its property adjusted under section 
1082(a)(2) (see Sec.  1.1082-3), in accordance with the provisions of 
the regulations in effect at the time of filing of the return for the 
taxable year in which the transfer occurs. Such consent shall be made on 
Form 982 in accordance with these regulations and instructions on the 
form or issued therewith.
    (h) Requirements with respect to expenditure or investment. If the 
full amount of the expenditure or investment required for the 
application of paragraph (c) of this section has not been made by the 
close of the taxable year in which such transfer occurred, the taxpayer 
shall file with the return for such year an application for the benefit 
of the 24-month period for expenditure and investment, reciting the 
nature and time of the proposed expenditure or investment. When 
requested by the district director, the taxpayer shall execute and file 
(at such time and in such form) such waiver of the statute of 
limitations with respect to the assessment of deficiencies (for the 
taxable year of the transfer and for all succeeding taxable years in any 
of

[[Page 249]]

which falls any part of the period beginning with the date of the 
transfer and ending 24 months thereafter) as the district director may 
specify, and such bond with such surety as the district director may 
require, in an amount not in excess of double the estimated maximum 
income tax which would be payable if the corporation does not make the 
required expenditure or investment within the required 24-month period.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6751, 29 FR 
11356, Aug. 6, 1964; T.D. 7517, 42 FR 58935, Nov. 14, 1977]



Sec.  1.1081-5  Distribution solely of stock or securities.

    (a) In general. If, without any surrender of his stock or securities 
as defined in section 1083(f), a shareholder in a corporation which is a 
registered holding company or a majority-owned subsidiary company 
receives stock or securities in such corporation or owned by such 
corporation, no gain to the shareholder will be recognized with respect 
to the stock or securities received by such shareholder which do not 
constitute nonexempt property, if the distribution to such shareholder 
is made by the distributing corporation in obedience to an order of the 
Securities and Exchange Commission directed to such corporation. A 
distribution is not within the provisions of section 1081(c)(1) if it is 
within the provisions of section 1081(d), relating to transfers within a 
system group. A distribution is also not within the provisions of 
section 1081(c)(1) if it involves a surrender by the shareholder of 
stock or securities or a transfer by the shareholder of property in 
exchange for the stock or securities received by the shareholder. For 
further limitations, see section 1081(f).
    (b) Special rule. (1) If there is distributed to a shareholder in a 
corporation rights to acquire common stock in a second corporation, no 
gain to the shareholder from the receipt of the rights shall be 
recognized, but only if all the following requirements are met:
    (i) The rights are received by the shareholder without the surrender 
by the shareholder of any stock in the distributing corporation,
    (ii) Such distribution is in accordance with an arrangement forming 
a ground for an order of the Securities and Exchange Commission issued 
pursuant to section 3 of the Public Utility Holding Company Act of 1935 
(15 U. S. C. 79c) that the distributing corporation is exempt from any 
provision or provisions of such act, and
    (iii) Before January 1, 1958, the distributing corporation disposes 
of all the common stock in the second corporation which it owns.
    (2) The distributing corporation shall, as soon as practicable, 
notify the district director in whose district the corporation's income 
tax return and supporting data was filed (see paragraph (g) of Sec.  
1.1081-11), as to whether or not the requirement of subparagraph 
(1)(iii) of this paragraph has been met. If such requirement has not 
been met, the periods of limitation (sections 6501 and 6502) with 
respect to any deficiency, including interest and additions to the tax, 
resulting solely from the receipt of such rights to acquire stock, shall 
include one year immediately following the date of such notification; 
and assessment and collection shall be made notwithstanding any 
provisions of law or rule of law which would otherwise prevent such 
assessment and collection.



Sec.  1.1081-6  Transfers within system group.

    (a) The nonrecognition of gain or loss provided for in section 
1081(d)(1) is applicable to an exchange of property for other property 
(including money and other nonexempt property) between corporations 
which are all members of the same system group. The term system group is 
defined in section 1083 (d).
    (b) Section 1081 (d)(1) also provides for nonrecognition of gain to 
a corporation which is a member of a system group if property (including 
money or other nonexempt property) is distributed to such corporation as 
a shareholder in a corporation which is a member of the same system 
group, without the surrender by such shareholder of stock or securities 
in the distributing corporation.
    (c) As stated in Sec.  1.1081-2, nonrecognition of gain or loss will 
not be accorded to a transaction not clearly provided for in part VI 
(section 1081 and following), subchapter O, chapter 1 of the

[[Page 250]]

Code, even though such transaction occurs simultaneously or in 
connection with an exchange, sale, or distribution to which 
nonrecognition is specifically accorded. Therefore, nonrecognition will 
not be accorded to any gain or loss realized from the discharge, or the 
removal of the burden, of the pecuniary obligations of a member of a 
system group, even though such obligations are acquired upon a transfer 
or distribution specifically described in section 1081 (d)(1); but the 
fact that the acquisition of such obligations was upon a transfer or 
distribution specifically described in section 1081 (d)(1) will, because 
of the basis provisions of section 1082 (d), affect the cost to the 
member of such discharge or its equivalent. Thus, section 1081 (d)(1) 
does not provide for the nonrecognition of any gain or loss realized 
from the discharge of the indebtedness of a member of a system group as 
the result of the acquisition in exchange, sale, or distribution of its 
own bonds, notes, or other evidences of indebtedness which were acquired 
by another member of the same system group for a consideration less or 
more than the issuing price thereof (with proper adjustments for 
amortization of premiums or discounts).
    (d) The provisions of paragraph (c) of this section may be 
illustrated by the following example:

    Example: Suppose that the A Corporation and the B Corporation are 
both members of the same system group; that the A Corporation holds at a 
cost of $900 a bond issued by the B Corporation at par, $1,000; and that 
the A Corporation and the B Corporation enter into an exchange subject 
to the provisions of section 1081 (d)(1) in which the $1,000 bond of the 
B Corporation is transferred from the A Corporation to the B 
Corporation. The $900 basis reflecting the cost to the A Corporation 
which would have been the basis available to the B Corporation if the 
property transferred to it had been something other than its own 
securities (see Sec.  1.1082-6) will, in this type of transaction, 
reflect the cost to the B Corporation of effecting a retirement of its 
own $1,000 bond. The $100 gain of the B Corporation reflected in the 
retirement will therefore be recognized.

    (e) No exchange or distribution may be made without the recognition 
of gain or loss as provided for in section 1081 (d)(1), unless all the 
corporations which are parties to such exchange or distribution are 
acting in obedience to an order of the Securities and Exchange 
Commission. If an exchange or distribution is within the provisions of 
section 1081 (d)(1) and also may be considered to be within some other 
provisions of section 1081, it shall be considered that only the 
provisions of section 1081 (d)(1) apply and that the nonrecognition of 
gain or loss upon such exchange or distribution is by virtue of that 
section.



Sec.  1.1081-7  Sale of stock or securities received upon exchange 
by members of system group.

    (a) Section 1081(d)(2) provides that to the extent that property 
received upon an exchange by corporations which are members of the same 
system group consists of stock or securities issued by the corporation 
from which such property was received, such stock or securities may, 
under certain specifically described circumstances, be sold to a party 
not a member of the system group, without the recognition of gain or 
loss to the selling corporation. The nonrecognition of gain or loss is 
limited, in the case of stock, to a sale of stock which is preferred as 
to both dividends and assets. The stock or securities must have been 
received upon an exchange with respect to which section 1081(d)(1) 
operated to prevent recognition of gain or loss to any party to the 
exchange. Nonrecognition of gain or loss upon the sale of such stock or 
securities is permitted only if the proceeds derived from the sale are 
applied in retirement or cancellation of stock or securities of the 
selling corporation which were outstanding at the time the exchange was 
made. It is also essential to nonrecognition of gain or loss upon the 
sale that both the sale of the stock or securities and the application 
of the proceeds derived therefrom be made in obedience to an order of 
the Securities and Exchange Commission. If any part of the proceeds 
derived from the sale is not applied in making the required retirement 
or cancellation of stock or securities and if the sale is otherwise 
within the provisions of section 1081 (d)(2), the gain resulting from 
the sale shall be recognized, but in an amount not in excess of the 
proceeds which are

[[Page 251]]

not so applied. In any event, if the proceeds derived from the sale of 
the stock or securities exceed the fair market value of such stock or 
securities at the time of the exchange through which they were acquired 
by the selling corporation, the gain resulting from the sale is to be 
recognized to the extent of such excess. Section 1081 (d)(2) does not 
provide for the nonrecognition of any gain resulting from the retirement 
of bonds, notes, or other evidences of indebtedness for a consideration 
less than the issuing price thereof. Also, that section does not provide 
for the nonrecognition of gain or loss upon the sale of any stock or 
securities received upon a distribution or otherwise than upon an 
exchange.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following example:

    Example: The X Corporation and the Y Corporation, both of which make 
their income tax returns on a calendar year basis, are members of the 
same system group. As part of an exchange to which section 1081 (d)(1) 
is applicable the Y Corporation on June 1, 1954, issued to the X 
Corporation 1,000 shares of class A stock, preferred as to both 
dividends and assets. The fair market value of such stock at the time of 
issuance was $90,000 and its basis to the X Corporation was $75,000. On 
December 1, 1954, in obedience to an appropriate order of the Securities 
and Exchange Commission, the X Corporation sells all of such stock to 
the public for $100,000 and applies $95,000 of this amount to the 
retirement of its own bonds, which were outstanding on June 1, 1954. The 
remaining $5,000 is not used to retire any of the X Corporation's stock 
or securities. Of the total gain of $25,000 realized on the disposition 
of the Y Corporation stock, only $10,000 is recognized (the difference 
between the fair market value of the stock when acquired and the amount 
for which it was sold), since such amount is greater than the portion 
($5,000) of the proceeds not applied to the retirement of the X 
Corporation's stock or securities. If in this example the stock acquired 
by the X Corporation had not been stock of the Y Corporation issued to 
the X Corporation or if it had been stock not preferred as to both 
dividends and assets, the full amount of the gain ($25,000) realized 
upon its disposition would have been recognized, regardless of what was 
done with the proceeds.



Sec.  1.1081-8  Exchanges in which money or other nonexempt property 
is received.

    (a) Under section 1081(e)(1), if in any exchange (not within any of 
the provisions of section 1081(d)) in which stock or securities in a 
corporation which is a registered holding company or a majority-owned 
subsidiary are exchanged for stock or securities as provided for in 
section 1081 (a), there is received by the taxpayer money or other 
nonexempt property (in addition to property permitted to be received 
without recognition of gain), then--
    (1) The gain, if any, to the taxpayer is to be recognized in an 
amount not in excess of the sum of the money and the fair market value 
of the other nonexempt property, but
    (2) The loss, if any, to the taxpayer from such an exchange is not 
to be recognized to any extent.
    (b) If money or other nonexempt property is received from a 
corporation in an exchange described in paragraph (a) of this section 
and if the distribution of such money or other nonexempt property by or 
on behalf of such corporation has the effect of the distribution of a 
taxable dividend, then, as provided in section 1081 (e)(2), there shall 
be taxed to each distributee (1) as a dividend, such an amount of the 
gain recognized on the exchange as is not in excess of the distributee's 
ratable share of the undistributed earnings and profits of the 
corporation accumulated after February 28, 1913, and (2) the remainder 
of the gain so recognized shall be taxed as a gain from the exchange of 
property.



Sec.  1.1081-9  Requirements with respect to order of Securities 
and Exchange Commission.

    The term order of the Securities and Exchange Commission is defined 
in section 1083(a). In addition to the requirements specified in that 
definition, section 1081(f) provides that, except in the case of a 
distribution described in section 1081(c)(2), the provisions of section 
1081 shall not apply to an exchange, expenditure, investment, 
distribution, or sale unless each of the following requirements is met:
    (a) The order of the Securities and Exchange Commission must recite 
that

[[Page 252]]

the exchange, expenditure, investment, distribution, or sale is 
necessary or appropriate to effectuate the provisions of section 11(b) 
of the Public Utility Holding Company Act of 1935 (15 U. S. C. 79k (b)).
    (b) The order shall specify and itemize the stocks and securities 
and other property (including money) which are ordered to be acquired, 
transferred, received, or sold upon such exchange, acquisition, 
expenditure, distribution, or sale and, in the case of an investment, 
the investment to be made, so as clearly to identify such property.
    (c) The exchange, acquisition, expenditure, investment, 
distribution, or sale shall be made in obedience to such order and shall 
be completed within the time prescribed in such order.

These requirements were not designed merely to simplify the 
administration of the provisions of section 1081, and they are not to be 
considered as pertaining only to administrative matters. Each one of the 
three requirements is essential and must be met if gain or loss is not 
to be recognized upon the transaction.



Sec.  1.1081-10  Nonapplication of other provisions of 
the Internal Revenue Code of 1954.

    The effect of section 1081(g) is that an exchange, sale, or 
distribution which is within section 1081 shall, with respect to the 
nonrecognition of gain or loss and the determination of basis, be 
governed only by the provisions of part VI (section 1081 and following), 
subchapter O, chapter 1 of the Code, the purpose being to prevent 
overlapping of those provisions and other provisions of subtitle A of 
the Code. In other words, if by virtue of section 1081 any portion of a 
person's gain or loss on any particular exchange, sale, or distribution 
is not to be recognized, then the gain or loss of such person shall be 
nonrecognized only to the extent provided in section 1081, regardless of 
what the result might have been if part VI (section 1081 and following), 
subchapter O, chapter 1 of the Code, had not been enacted; and 
similarly, the basis in the hands of such person of the property 
received by him in such transaction shall be the basis provided by 
section 1082, regardless of what the basis of such property might have 
been under section 1011 if such part VI had not been enacted. On the 
other hand, if section 1081 does not provide for the nonrecognition of 
any portion of a person's gain or loss (whether or not such person is 
another party to the same transaction referred to above), then the gain 
or loss of such person shall be recognized or nonrecognized to the 
extent provided for by other provisions of subtitle A of the Code as if 
such part VI had not been enacted; and similarly, the basis in his hands 
of the property received by him in such transaction shall be the basis 
provided by other provisions of subtitle A of the Code as if such part 
VI had not been enacted.



Sec.  1.1081-11  Records to be kept and information to be filed with returns.

    (a) Distributions and exchanges; significant holders of stock or 
securities. Every significant holder must include a statement entitled, 
``STATEMENT PURSUANT TO Sec.  1.1081-11(a) BY [INSERT NAME AND TAXPAYER 
IDENTIFICATION NUMBER (IF ANY) OF TAXPAYER], A SIGNIFICANT HOLDER,'' on 
or with such holder's income tax return for the taxable year in which 
the distribution or exchange occurs. If a significant holder is a 
controlled foreign corporation (within the meaning of section 957), each 
United States shareholder (within the meaning of section 951(b)) with 
respect thereto must include this statement on or with its return. The 
statement must include--
    (1) The name and employer identification number (if any) of the 
corporation from which the stock, securities, or other property 
(including money) was received by such significant holder;
    (2) The aggregate basis, determined immediately before the exchange, 
of any stock or securities transferred by the significant holder in the 
exchange, and the aggregate fair market value, determined immediately 
before the distribution or exchange, of the stock, securities or other 
property (including money) received by the significant holder in the 
distribution or exchange; and
    (3) The date of the distribution or exchange.

[[Page 253]]

    (b) Distributions and exchanges; corporations subject to Commission 
orders. Each corporation which is a party to a distribution or exchange 
made pursuant to an order of the Commission must include on or with its 
income tax return for its taxable year in which the distribution or 
exchange takes place a statement entitled, ``STATEMENT PURSUANT TO Sec.  
1.1081-11(b) BY [INSERT NAME AND EMPLOYER IDENTIFICATION NUMBER (IF ANY) 
OF TAXPAYER], A DISTRIBUTING OR EXCHANGING CORPORATION.'' If the 
distributing or exchanging corporation is a controlled foreign 
corporation (within the meaning of section 957), each United States 
shareholder (within the meaning of section 951(b)) with respect thereto 
must include this statement on or with its return. The statement must 
include--
    (1) The date and control number of the Commission order, pursuant to 
which the distribution or exchange was made;
    (2) The names and taxpayer identification numbers (if any) of the 
significant holders;
    (3) The aggregate fair market value and basis, determined 
immediately before the distribution or exchange, of the stock, 
securities, or other property (including money) transferred in the 
distribution or exchange; and
    (4) The date of the distribution or exchange.
    (c) Sales by members of system groups. Each system group member must 
include a statement entitled, ``STATEMENT PURSUANT TO Sec.  1.1081-11(c) 
BY [INSERT NAME AND EMPLOYER IDENTIFICATION NUMBER (IF ANY) OF 
TAXPAYER], A SYSTEM GROUP MEMBER,'' on or with its income tax return for 
the taxable year in which the sale is made. If any system group member 
is a controlled foreign corporation (within the meaning of section 957), 
each United States shareholder (within the meaning of section 951(b)) 
with respect thereto must include this statement on or with its return. 
The statement must include--
    (1) The dates and control numbers of all relevant Commission orders;
    (2) The aggregate fair market value and basis, determined 
immediately before the sale, of all stock or securities sold; and
    (3) The date of the sale.
    (d) Definitions. (1) For purposes of this section, Commission means 
the Securities and Exchange Commission.
    (2) For purposes of this section, significant holder means a person 
that receives stock or securities from a corporation (the distributing 
corporation) pursuant to an order of the Commission, if, immediately 
before the transaction, such person--
    (i) In the case of stock--
    (A) Owned at least five percent (by vote or value) of the total 
outstanding stock of the distributing corporation if the stock owned by 
such person is publicly traded, or
    (B) Owned at least one percent (by vote or value) of the total 
outstanding stock of the distributing corporation if the stock owned by 
such person is not publicly traded; or
    (ii) In the case of securities, owned securities of the distributing 
corporation with a basis of $1,000,000 or more.
    (3) Publicly traded stock means stock that is listed on--
    (i) A national securities exchange registered under section 6 of the 
Securities Exchange Act of 1934 (15 U.S.C. 78f); or
    (ii) An interdealer quotation system sponsored by a national 
securities association registered under section 15A of the Securities 
Exchange Act of 1934 (15 U.S.C. 78o-3).
    (4) For purposes of paragraph (b) of this section, exchange means 
exchange, expenditure, or investment.
    (5) For purposes of paragraph (c) of this section, system group 
member means each corporation which is a member of a system group and 
which, pursuant to an order of the Commission, sells stock or securities 
received upon an exchange (pursuant to an order of the Commission) and 
applies the proceeds derived therefrom in retirement or cancellation of 
its own stock or securities.
    (e) Substantiation information. Under Sec.  1.6001-1(e), taxpayers 
are required to retain their permanent records and make such records 
available to any authorized Internal Revenue Service officers and 
employees. In connection with the distribution or exchange described in 
this section, these records should

[[Page 254]]

specifically include information regarding the amount, basis, and fair 
market value of all property distributed or exchanged, and relevant 
facts regarding any liabilities assumed or extinguished as part of such 
distribution or exchange.
    (f) Effective/applicability date. This section applies to any 
taxable year beginning on or after May 30, 2006. However, taxpayers may 
apply this section to any original Federal income tax return (including 
any amended return filed on or before the due date (including 
extensions) of such original return) timely filed on or after May 30, 
2006. For taxable years beginning before May 30, 2006, see Sec.  1.1081-
11 as contained in 26 CFR part 1 in effect on April 1, 2006.

[T.D. 9329, 72 FR 32803, June 14, 2007]



Sec.  1.1082-1  Basis for determining gain or loss.

    (a) For determining the basis of property acquired in a taxable year 
beginning before January 1, 1942, in any manner described in section 372 
of the Internal Revenue Code of 1939 prior to its amendment by the 
Revenue Act of 1942 (56 Stat. 798), see such section (before its 
amendment by such Act).
    (b) If the property was acquired in a taxable year beginning after 
December 31, 1941, in any manner described in section 1082 (other than 
subsection (a)(2)), or section 372 (other than subsection (a)(2)) of the 
Internal Revenue Code of 1939 after its amendments, the basis shall be 
that prescribed in section 1082 with respect to such property. However, 
in the case of property acquired in a transaction described in section 
1081(c)(2), this paragraph is applicable only if the property was 
acquired in a distribution made in a taxable year subject to the 
Internal Revenue Code of 1954.
    (c) Section 1082 makes provisions with respect to the basis of 
property acquired in a transfer in connection with which the recognition 
of gain or loss is prohibited by the provisions of section 1081 with 
respect to the whole or any part of the property received. In general, 
and except as provided in Sec.  1.1082-3, it is intended that the basis 
for determining gain or loss pertaining to the property prior to its 
transfer, as well as the basis for determining the amount of 
depreciation or depletion deductible and the amount of earnings or 
profits available for distribution, shall continue notwithstanding the 
nontaxable conversion of the asset in form or its change in ownership. 
The continuance of the basis may be reflected in a shift thereof from 
one asset to another in the hands of the same owner, or in its transfer 
with the property from one owner into the hands of another. See also 
Sec.  1.1081-2.



Sec.  1.1082-2  Basis of property acquired upon exchanges 
under section 1081 (a) or (e).

    (a) In the case of an exchange of stock or securities for stock or 
securities as described in section 1081 (a), if no part of the gain or 
loss upon such exchange was recognized under section 1081, the basis of 
the property acquired is the same as the basis of the property 
transferred by the taxpayer with proper adjustments to the date of the 
exchange.
    (b) If, in an exchange of stock or securities as described in 
section 1081 (a), gain to the taxpayer was recognized under section 1081 
(e) on account of the receipt of money, the basis of the property 
acquired is the basis of the property transferred (adjusted to the date 
of the exchange), decreased by the amount of money received and 
increased by the amount of gain recognized upon the exchange. If, upon 
such exchange, there were received by the taxpayer money and other 
nonexempt property (not permitted to be received without the recognition 
of gain), and gain from the transaction was recognized under section 
1081 (e), the basis (adjusted to the date of the exchange) of the 
property transferred by the taxpayer, decreased by the amount of money 
received and increased by the amount of gain recognized, must be 
apportioned to and is the basis of the properties (other than money) 
received on the exchange. For the purpose of the allocation of such 
basis to the properties received, there must be assigned to the 
nonexempt property (other than money) an amount equivalent to its fair 
market value at the date of the exchange.

[[Page 255]]

    (c) Section 1081(e) provides that no loss may be recognized on an 
exchange of stock or securities for stock or securities as described in 
section 1081(a), although the taxpayer receives money or other nonexempt 
property from the transaction. However, the basis of the property (other 
than money) received by the taxpayer is the basis (adjusted to the date 
of the exchange) of the property transferred, decreased by the amount of 
money received. This basis must be apportioned to the properties 
received, and for this purpose there must be allocated to the nonexempt 
property (other than money) an amount of such basis equivalent to the 
fair market value of such nonexempt property at the date of the 
exchange.
    (d) Section 1082 (a) does not apply in ascertaining the basis of 
property acquired by a corporation by the issuance of its stock or 
securities as the consideration in whole or in part for the transfer of 
the property to it. For the rule in such cases, see section 1082 (b).
    (e) For purposes of this section, any reference to section 1081 
shall be deemed to include a reference to corresponding provisions of 
prior internal revenue laws.



Sec.  1.1082-3  Reduction of basis of property by reason of gain 
not recognized under section 1081(b).

    (a) Introductory. In addition to the adjustments provided in section 
1016 and other applicable provisions of chapter 1 of the Code, and the 
regulations relating thereto, which are required to be made with respect 
to the cost or other basis of property, section 1082(a)(2) provides that 
a further adjustment shall be made in any case in which there shall have 
been a nonrecognition of gain under section 1081(b). Such further 
adjustment shall be made with respect to the basis of the property in 
the hands of the transferor immediately after the transfer and of the 
property acquired within 24 months after such transfer by an expenditure 
or investment to which section 1081(b) relates, and on account of which 
expenditure or investment gain is not recognized. If the property is in 
the hands of the transferor immediately after the transfer, the time of 
reduction is the day of the transfer; in all other cases the time of 
reduction is the date of acquisition. The effect of applying an amount 
in reduction of basis of property under section 1081 (b) is to reduce by 
such amount the basis for determining gain upon sale or other 
disposition, the basis for determining loss upon sale or other 
disposition, the basis for depreciation and for depletion, and any other 
amount which the Code prescribes shall be the same as any of such bases. 
For the purposes of the application of an amount in reduction of basis 
under section 1081(b), property is not considered as having a basis 
capable of reduction if--
    (1) It is money, or
    (2) If its adjusted basis for determining gain at the time the 
reduction is to be made is zero, or becomes zero at any time in the 
application of section 1081 (b).
    (b) General rule. (1) Section 1082 (a)(2) sets forth seven 
categories of property, the basis of which for determining gain or loss 
shall be reduced in the order stated.
    (2) If any of the property in the first category has a basis capable 
of reduction, the reduction must first be made before applying an amount 
in reduction of the basis of any property in the second or in a 
succeeding category, to each of which in turn a similar rule is applied.
    (3) In the application of the rule to each category, the amount of 
the gain not recognized shall be applied to reduce the cost or other 
basis of all the property in the category as follows: The cost or other 
basis (at the time immediately after the transfer or, if the property is 
not then held but is thereafter acquired, at the time of such 
acquisition) of each unit of property in the first category shall be 
decreased (but the amount of the decrease shall not be more than the 
amount of the adjusted basis at such time for determining gain, 
determined without regard to this section) in an amount equal to such 
proportion of the unrecognized gain as the adjusted basis (for 
determining gain, determined without regard to this section) at such 
time of each unit of property of the taxpayer in that category bears to 
the aggregate of the adjusted basis (for determining gain, computed 
without regard to this

[[Page 256]]

section) at such time of all the property of the taxpayer in that 
category. When such adjusted basis of the property in the first category 
has been thus reduced to zero, a similar rule shall be applied, with 
respect to the portion of such gain which is unabsorbed in such 
reduction of the basis of the property in such category, in reducing the 
basis of the property in the second category. A similar rule with 
respect to the remaining unabsorbed gain shall be applied in reducing 
the basis of the property in the next succeeding category.
    (c) Special cases. (1) With the consent of the Commissioner, the 
taxpayer may, however, have the basis of the various units of property 
within a particular category specified in section 1082(a)(2) adjusted in 
a manner different from the general rule set forth in paragraph (b) of 
this section. Variations from such general rule may, for example, 
involve adjusting the basis of only certain units of the taxpayer's 
property within a given category. A request for variations from the 
general rule should be filed by the taxpayer with its income tax return 
for the taxable year in which the transfer of property has occurred.
    (2) Agreement between the taxpayer and the Commissioner as to any 
variations from such general rule shall be effective only if 
incorporated in a closing agreement entered into under the provisions of 
section 7121. If no such agreement is entered into by the taxpayer and 
the Commissioner, then the consent filed on Form 982 shall (except as 
otherwise provided in this subparagraph) be deemed to be a consent to 
the application of such general rule, and such general rule shall apply 
in the determination of the basis of the taxpayer's property. If, 
however, the taxpayer specifically states on such form that it does not 
consent to the application of the general rule, then, in the absence of 
a closing agreement, the document filed shall not be deemed a consent 
within the meaning of section 1081(b)(4).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 7517, 42 FR 
58935, Nov. 14, 1977]



Sec.  1.1082-4  Basis of property acquired by corporation under 
section 1081(a), 1081(b), or 1081(e) as contribution of capital or surplus, 
or in consideration for its own stock or securities.

    If, in connection with an exchange of stock or securities for stock 
or securities as described in section 1081(a), or an exchange of 
property for property as described in section 1081(b), or an exchange as 
described in section 1081(e), property is acquired by a corporation by 
the issuance of its stock or securities, the basis of such property 
shall be determined under section 1082(b). If the corporation issued its 
stock or securities as part or sole consideration for the property 
acquired, the basis of the property in the hands of the acquiring 
corporation is the basis (adjusted to the date of the exchange) which 
the property would have had in the hands of the transferor if the 
transfer had not been made, increased in the amount of gain or decreased 
in the amount of loss recognized under section 1081 to the transferor 
upon the transfer. If any property is acquired by a corporation from a 
shareholder as paid-in surplus, or from any person as a contribution to 
capital, the basis of the property to the corporation is the basis 
(adjusted to the date of acquisition) of the property in the hands of 
the transferor.



Sec.  1.1082-5  Basis of property acquired by shareholder upon 
tax-free distribution under section 1081(c) (1) or (2).

    (a) Stock or securities. If there was distributed to a shareholder 
in a corporation which is a registered holding company or a majority-
owned subsidiary company, stock or securities (other than stock or 
securities which are nonexempt property), and if by virtue of section 
1081 (c)(1) no gain was recognized to the shareholder upon such 
distribution, then the basis of the stock in respect of which the 
distribution was made must be apportioned between such stock and the 
stock or securities so distributed to the shareholder. The basis of the 
old shares and the stock or securities received upon the distribution 
shall be determined in accordance with the following rules:
    (1) If the stock or securities received upon the distribution 
consist solely of

[[Page 257]]

stock in the distributing corporation and the stock received is all of 
substantially the same character and preference as the stock in respect 
of which the distribution is made, the basis of each share will be the 
quotient of the cost or other basis of the old shares of stock divided 
by the total number of the old and the new shares.
    (2) If the stock or securities received upon the distribution are in 
whole or in part stock in a corporation other than the distributing 
corporation, or are in whole or in part stock of a character or 
preference materially different from the stock in respect of which the 
distribution is made, or if the distribution consists in whole or in 
part of securities other than stock, the cost or other basis of the 
stock in respect of which the distribution is made shall be apportioned 
between such stock and the stock or securities distributed in 
proportion, as nearly as may be, to the respective values of each class 
of stock or security, old and new, at the time of such distribution, and 
the basis of each share of stock or unit of security will be the 
quotient of the cost or other basis of the class of stock or security to 
which such share or unit belongs, divided by the number of shares or 
units in the class. Within the meaning of this subparagraph, stocks or 
securities in one corporation are different in class from stocks or 
securities in another corporation, and, in general, any material 
difference in character or preference or terms sufficient to distinguish 
one stock or security from another stock or security, so that different 
values may properly be assigned thereto, will constitute a difference in 
class.
    (b) Stock rights. If there was distributed to a shareholder in a 
corporation rights to acquire common stock in a second corporation, and 
if by virtue of section 1081 (c)(2) no gain was recognized to the 
shareholder upon such distribution, then the basis of the stock in 
respect of which the distribution was made must be apportioned between 
such stock and the stock rights so distributed to the shareholder. The 
basis of such stock and the stock rights received upon the distribution 
shall be determined in accordance with the following:
    (1) The cost or other basis of the stock in respect of which the 
distribution is made shall be apportioned between such stock and the 
stock rights distributed, in proportion to the respective values thereof 
at the time the rights are issued.
    (2) The basis for determining gain or loss from the sale of a right, 
or from the sale of a share of stock in respect of which the 
distribution is made, will be the quotient of the cost or other basis, 
properly adjusted, assigned to the rights or the stock, divided, as the 
case may be, by the number of rights acquired or by the number of shares 
of such stock held.
    (c) Cross reference. As to the basis of stock or securities 
distributed by one member of a system group to another member of the 
same system group, see Sec.  1.1082-6.



Sec.  1.1082-6  Basis of property acquired under section 1081(d) 
in transactions between corporations of the same system group.

    (a) If property was acquired by a corporation which is a member of a 
system group, from a corporation which is a member of the same system 
group, upon a transfer or distribution described in section 1081 (d)(1), 
then as a general rule the basis of such property in the hands of the 
acquiring corporation is the basis which such property would have had in 
the hands of the transferor if the transfer or distribution had not been 
made. Except as otherwise indicated in this section, this rule will 
apply equally to cases in which the consideration for the property 
acquired consists of stock or securities, money, and other property, or 
any of them, but it is contemplated that an ultimate true reflection of 
income will be obtained in all cases, notwithstanding any peculiarities 
in form which the various transactions may assume. See the example in 
Sec.  1.1081-6.
    (b) An exception to the general rule is provided for in case the 
property acquired consists of stock or securities issued by the 
corporation from which such stock or securities were received. If such 
stock or securities were the sole consideration for the property 
transferred to the corporation issuing such stock or securities, then 
the basis of

[[Page 258]]

the stock or securities shall be (1) the same as the basis (adjusted to 
the time of the transfer) of the property transferred for such stock or 
securities, or (2) the fair market value of such stock or securities at 
the time of their receipt, whichever is the lower. If such stock or 
securities constituted only part consideration for the property 
transferred to the corporation issuing such stock or securities, then 
the basis shall be an amount which bears the same ratio to the basis of 
the property transferred as the fair market value of such stock or 
securities on their receipt bears to the total fair market value of the 
entire consideration received, except that the fair market value of such 
stock or securities at the time of their receipt shall be the basis 
therefor, if such value is lower than such amount.
    (c) The application of paragraph (b) of this section may be 
illustrated by the following examples:

    Example 1. Suppose the A Corporation has property with an adjusted 
basis of $600,000 and, in an exchange in which section 1081 (d)(1) is 
applicable, transfers such property to the B Corporation in exchange for 
a total consideration of $1,000,000, consisting of (1) cash in the 
amount of $100,000, (2) tangible property having a fair market value of 
$400,000 and an adjusted basis in the hands of the B Corporation of 
$300,000, and (3) stock or securities issued by the B Corporation with a 
par value and a fair market value as of the date of their receipt in the 
amount of $500,000. The basis to the B Corporation of the property 
received by it is $600,000, which is the adjusted basis of such property 
in the hands of the A Corporation. The basis to the A Corporation of the 
assets (other than cash) received by it is as follows: Tangible 
property, $300,000, the adjusted basis of such property to the B 
Corporation, the former owner; stock or securities issued by the B 
Corporation, $300,000, an amount equal to 550,000/ 1,000,000ths of 
$600,000.
    Example 2. Suppose that in example (1) the property of the A 
Corporation transferred to the B Corporation had an adjusted basis of 
$1,100,000 instead of $600,000, and that all other factors in the 
example remain the same. In such case, the basis to the A Corporation of 
the stock or securities in the B Corporation is $500,000, which was the 
fair market value of such stock or securities at the time of their 
receipt by the A Corporation, because this amount is less than the 
amount established as 500,000/1,000,000ths of $1,100,000 or $550,000.



Sec.  1.1083-1  Definitions.

    (a) Order of the Securities and Exchange Commission. (1) An order of 
the Securities and Exchange Commission as defined in section 1083(a) 
must be issued after May 28, 1938 (the date of the enactment of the 
Revenue Act of 1938 (52 Stat. 447)), and must be issued under the 
authority of section 11(b) or 11(e) of the Public Utility Holding 
Company Act of 1935 (15 U.S.C. 79k (b), (e)), to effectuate the 
provisions of section 11(b) of such Act. In all cases the order must 
become or have become final in accordance with law; i.e., it must be 
valid, outstanding, and not subject to further appeal. See further 
sections 1083(a) and 1081(f).
    (2) Section 11 (b) of the Public Utility Holding Company Act of 1935 
provides:

    Sec. 11. Simplification of holding company systems.* * *
    (b) It shall be the duty of the Commission, as soon as practicable 
after January 1, 1938:
    (1) To require by order, after notice and opportunity for hearing, 
that each registered holding company, and each subsidiary company 
thereof, shall take such action as the Commission shall find necessary 
to limit the operations of the holding-company system of which such 
company is a part to a single integrated public-utility system, and to 
such other businesses as are reasonably incidental, or economically 
necessary or appropriate to the operations of such integrated public-
utility system: Provided, however, That the Commission shall permit a 
registered holding company to continue to control one or more additional 
integrated public-utility systems, if, after notice and opportunity for 
hearing, it finds that--
    (A) Each of such additional systems cannot be operated as an 
independent system without the loss of substantial economies which can 
be secured by the retention of control by such holding company of such 
system;
    (B) All of such additional systems are located in one State, or in 
adjoining States, or in a contiguous foreign country; and
    (C) The continued combination of such systems under the control of 
such holding company is not so large (considering the state of the art 
and the area or region affected) as to impair the advantages of 
localized management, efficient operation, or the effectiveness of 
regulation.

The Commission may permit as reasonably incidental, or economically 
necessary or appropriate to the operations of one or more integrated 
public-utility systems the retention of an interest in any business 
(other than the business of a public-utility company as such) which the 
Commission shall

[[Page 259]]

find necessary or appropriate in the public interest or for the 
protection of investors or consumers and not detrimental to the proper 
functioning of such system or systems.
    (2) To require by order, after notice and opportunity for hearing, 
that each registered holding company, and each subsidiary company 
thereof, shall take such steps as the Commission shall find necessary to 
ensure that the corporate structure or continued existence of any 
company in the holding-company system does not unduly or unnecessarily 
complicate the structure, or unfairly or inequitably distribute voting 
power among security holders, of such holding-company system. In 
carrying out the provisions of this paragraph the Commission shall 
require each registered holding company (and any company in the same 
holding-company system with such holding company) to take such action as 
the Commission shall find necessary in order that such holding company 
shall cease to be a holding company with respect to each of its 
subsidiary companies which itself has a subsidiary company which is a 
holding company. Except for the purpose of fairly and equitably 
distributing voting power among the security holders of such company, 
nothing in this paragraph shall authorize the Commission to require any 
change in the corporate structure or existence of any company which is 
not a holding company, or of any company whose principal business is 
that of a public-utility company. The Commission may by order revoke or 
modify any order previously made under this subsection, if, after notice 
and opportunity for hearing, it finds that the conditions upon which the 
order was predicated do not exist. Any order made under this subsection 
shall be subject to judicial review as provided in section 24.

    (3) Section 11(e) of the Public Utility Holding Company Act of 1935 
provides:

    Sec. 11. Simplification of holding company systems. * * *
    (e) In accordance with such rules and regulations or order as the 
Commission may deem necessary or appropriate in the public interest or 
for the protection of investors or consumers, any registered holding 
company or any subsidiary company of a registered holding company may, 
at any time after January 1, 1936, submit a plan to the Commission for 
the divestment of control, securities, or other assets, or for other 
action by such company or any subsidiary company thereof for the purpose 
of enabling such company or any subsidiary company thereof to comply 
with the provisions of subsection (b). If, after notice and opportunity 
for hearing, the Commission shall find such plan, as submitted or as 
modified, necessary to effectuate the provisions of subsection (b) and 
fair and equitable to the persons affected by such plan, the Commission 
shall make an order approving such plan; and the Commission, at the 
request of the company, may apply to a court, in accordance with the 
provisions of subsection (f) of section 18, to enforce and carry out the 
terms and provisions of such plan. If, upon any such application, the 
court, after notice and opportunity for hearing, shall approve such plan 
as fair and equitable and as appropriate to effectuate the provisions of 
section 11, the court as a court of equity may, to such extent as it 
deems necessary for the purpose of carrying out the terms and provisions 
of such plan, take exclusive jurisdiction and possession of the company 
or companies and the assets thereof, wherever located; and the court 
shall have jurisdiction to appoint a trustee, and the court may 
constitute and appoint the Commission as sole trustee, to hold or 
administer, under the direction of the court and in accordance with the 
plan theretofore approved by the court and the Commission, the assets so 
possessed.

    (b) Registered holding company, holding-company system, and 
associate company. (1) Under section 5 of the Public Utility Holding 
Company Act of 1935 (15 U.S.C. 79e), any holding company may register by 
filing with the Securities and Exchange Commission a notification of 
registration, in such form as the Commission may by rules and 
regulations prescribe as necessary or appropriate in the public interest 
or for the protection of investors or consumers. A holding company shall 
be deemed to be registered upon receipt by the Securities and Exchange 
Commission of such notification of registration. As used in this part, 
the term registered holding company means a holding company whose 
notification of registration has been so received and whose registration 
is still in effect under section 5 of the Public Utility Holding Company 
Act of 1935. Under section 2 (a)(7) of the Public Utility Holding 
Company Act of 1935 (15 U.S.C. 79b (a)(7)), a corporation is a holding 
company (unless it is declared not to be such by the Securities and 
Exchange Commission), if such corporation directly or indirectly owns, 
controls, or holds with power to vote 10 percent or more of the 
outstanding voting securities of a public-utility company (i.e., an 
electric utility company or a gas utility company as defined by such 
act) or of any other holding company. A corporation is also a holding

[[Page 260]]

company if the Securities and Exchange Commission determines, after 
notice and opportunity for hearing, that such corporation directly or 
indirectly exercises (either alone or pursuant to an arrangement or 
understanding with one or more other persons) such a controlling 
influence over the management or policies of any public-utility company 
(i.e., an electric utility company or a gas utility company as defined 
by such act) or holding company as to make it necessary or appropriate 
in the public interest or for the protection of investors or consumers 
that such corporation be subject to the obligations, duties, and 
liabilities imposed upon holding companies by the Public Utility Holding 
Company Act of 1935 (15 U.S.C. ch. 2C). An electric utility company is 
defined by section 2 (a)(3) of the Public Utility Holding Company Act of 
1935 (15 U.S.C. 79b (a)(3)) to mean a company which owns or operates 
facilities used for the generation, transmission, or distribution of 
electrical energy for sale, other than sale to tenants or employees of 
the company operating such facilities for their own use and not for 
resale; and a gas utility company is defined by section 2 (a)(4) of such 
act (15 U.S.C. 79b (a)(4)), to mean a company which owns or operates 
facilities used for the distribution at retail (other than distribution 
only in enclosed portable containers, or distribution to tenants or 
employees of the company operating such facilities for their own use and 
not for resale) of natural or manufactured gas for heat, light, or 
power. However, under certain conditions the Securities and Exchange 
Commission may declare a company not to be an electric utility company 
or a gas utility company, as the case may be, in which event the company 
shall not be considered an electric utility company or a gas utility 
company.
    (2) The term holding company system has the meaning assigned to it 
by section 2 (a)(9) of the Public Utility Holding Company Act of 1935 
(15 U.S.C. 79b (a)(9)), and hence means any holding company, together 
with all its subsidiary companies (i.e., subsidiary companies within the 
meaning of section 2(a)(8) of such act (15 U.S.C. 79b (a)(8)), which in 
general include all companies 10 percent of whose outstanding voting 
securities is owned directly or indirectly by such holding company) and 
all mutual service companies of which such holding company or any 
subsidiary company thereof is a member company. The term mutual service 
company means a company approved as a mutual service company under 
section 13 of the Public Utility Holding Company Act of 1935 (15 U.S.C. 
79m). The term member company is defined by action 2 (a)(14) of such act 
(15 U.S.C. 79b (a)(14)), to mean a company which is a member of an 
association or group of companies mutually served by a mutual service 
company.
    (3) The term associate company has the meaning assigned to it by 
section 2 (a)(10) of the Public Utility Holding Company Act of 1935 (15 
U.S.C. 79b (a)(10)), and hence an associate company of a company is any 
company in the same holding-company system with such company.
    (c) Majority-owned subsidiary company. The term majority-owned 
subsidiary company is defined in section 1083 (c). Direct ownership by a 
registered holding company of more than 50 percent of the specified 
stock of another corporation is not necessary to constitute such 
corporation a majority-owned subsidiary company. To illustrate, if the H 
Corporation, a registered holding company, owns 51 percent of the common 
stock of the A Corporation and 31 percent of the common stock of the B 
Corporation, and the A Corporation owns 20 percent of the common stock 
of the B Corporation (the common stock in each case being the only stock 
entitled to vote), both the A Corporation and the B Corporation are 
majority-owned subsidiary companies.
    (d) System group. The term system group is defined in section 1083 
(d) to mean one or more chains of corporations connected through stock 
ownership with a common parent corporation, if at least 90 percent of 
each class of stock (other than (1) stock which is preferred as to both 
dividends and assets, and (2) stock which is limited and preferred as to 
dividends but which is not preferred as to assets but only if the total 
value of such stock is less than 1 percent of the aggregate value

[[Page 261]]

of all classes of stock which are not preferred as to both dividends and 
assets) of each of the corporations (except the common parent 
corporation) is owned directly by one or more of the other corporations, 
and if the common parent corporation owns directly at least 90 percent 
of each class of stock (other than stock preferred as to both dividends 
and assets) of at least one of the other corporations; but no 
corporation is a member of a system group unless it is either a 
registered holding company or a majority-owned subsidiary company. While 
the type of stock which must, for the purpose of this definition, be at 
least 90 percent owned may be different from the voting stock which must 
be more than 50 percent owned for the purpose of the definition of a 
majority-owned subsidiary company under section 1083(c), as a general 
rule both types of ownership tests must be met under section 1083(d), 
since a corporation, in order to be a member of a system group, must 
also be a registered holding company or a majority-owned subsidiary 
company.
    (e) Nonexempt property. The term nonexempt property is defined by 
section 1083(e) to include--
    (1) The amount of any consideration in the form of a cancellation or 
assumption of debts or other liabilities of the transferor (including a 
continuance of encumbrances subject to which the property was 
transferred). To illustrate, if in obedience to an order of the 
Securities and Exchange Commission the X Corporation, a registered 
holding company, transfers property to the Y Corporation in exchange for 
property (not nonexempt property) with a fair market value of $500,000, 
the X Corporation receives $100,000 of nonexempt property, if for 
example--
    (i) The Y Corporation cancels $100,000 of indebtedness owed to it by 
the X Corporation;
    (ii) The Y Corporation assumes an indebtedness of $100,000 owed by 
the X Corporation to another company, the A Corporation; or
    (iii) The Y Corporation takes over the property conveyed to it by 
the X Corporation subject to a mortgage of $100,000.
    (2) Short-term obligations (including notes, drafts, bills of 
exchange, and bankers' acceptances) having a maturity at the time of 
issuance of not exceeding 24 months, exclusive of days of grace.
    (3) Securities issued or guaranteed as to principal or interest by a 
government or subdivision thereof (including those issued by a 
corporation which is an instrumentality of a government or subdivision 
thereof).
    (4) Stock or securities which were acquired from a registered 
holding company which acquired such stock or securities after February 
28, 1938, or an associate company of a registered holding company which 
acquired such stock or securities after February 28, 1938, unless such 
stock or securities were acquired in obedience to an order of the 
Securities and Exchange Commission (as defined in section 1083 (a)) or 
were acquired with the authorization or approval of the Securities and 
Exchange Commission under any section of the Public Utility Holding 
Company Act of 1935, and are not nonexempt property within the meaning 
of section 1083(e) (1), (2), or (3).
    (5) Money, and the right to receive money not evidenced by a 
security other than an obligation described as nonexempt property in 
section 1083 (e) (2) or (3). The term the right to receive money 
includes, among other items, accounts receivable, claims for damages, 
and rights to refunds of taxes.
    (f) Stock or securities. The term stock or securities is defined in 
section 1083(f) for the purposes of part VI (section 1081 and 
following), subchapter O, chapter 1 of the Code. As therein defined, the 
term includes voting trust certificates and stock rights or warrants.

                    Wash Sales of Stock or Securities



Sec.  1.1091-1  Losses from wash sales of stock or securities.

    (a) A taxpayer cannot deduct any loss claimed to have been sustained 
from the sale or other disposition of stock or securities if, within a 
period beginning 30 days before the date of such sale or disposition and 
ending 30 days after such date (referred to in this section as the 61-
day period), he has acquired (by purchase or by an exchange

[[Page 262]]

upon which the entire amount of gain or loss was recognized by law), or 
has entered into a contract or option so to acquire, substantially 
identical stock or securities. However, this prohibition does not apply 
(1) in the case of a taxpayer, not a corporation, if the sale or other 
disposition of stock or securities is made in connection with the 
taxpayer's trade or business, or (2) in the case of a corporation, a 
dealer in stock or securities, if the sale or other disposition of stock 
or securities is made in the ordinary course of its business as such 
dealer.
    (b) Where more than one loss is claimed to have been sustained 
within the taxable year from the sale or other disposition of stock or 
securities, the provisions of this section shall be applied to the 
losses in the order in which the stock or securities the disposition of 
which resulted in the respective losses were disposed of (beginning with 
the earliest disposition). If the order of disposition of stock or 
securities disposed of at a loss on the same day cannot be determined, 
the stock or securities will be considered to have been disposed of in 
the order in which they were originally acquired (beginning with the 
earliest acquisition).
    (c) Where the amount of stock or securities acquired within the 61-
day period is less than the amount of stock or securities sold or 
otherwise disposed of, then the particular shares of stock or securities 
the loss from the sale or other disposition of which is not deductible 
shall be those with which the stock or securities acquired are matched 
in accordance with the following rule: The stock or securities acquired 
will be matched in accordance with the order of their acquisition 
(beginning with the earliest acquisition) with an equal number of the 
shares of stock or securities sold or otherwise disposed of.
    (d) Where the amount of stock or securities acquired within the 61-
day period is not less than the amount of stock or securities sold or 
otherwise disposed of, then the particular shares of stock or securities 
the acquisition of which resulted in the nondeductibility of the loss 
shall be those with which the stock or securities disposed of are 
matched in accordance with the following rule: The stock or securities 
sold or otherwise disposed of will be matched with an equal number of 
the shares of stock or securities acquired in accordance with the order 
of acquisition (beginning with the earliest acquisition) of the stock or 
securities acquired.
    (e) The acquisition of any share of stock or any security which 
results in the nondeductibility of a loss under the provisions of this 
section shall be disregarded in determining the deductibility of any 
other loss.
    (f) The word acquired as used in this section means acquired by 
purchase or by an exchange upon which the entire amount of gain or loss 
was recognized by law, and comprehends cases where the taxpayer has 
entered into a contract or option within the 61-day period to acquire by 
purchase or by such an exchange.
    (g) For purposes of determining under this section the 61-day period 
applicable to a short sale of stock or securities, the principles of 
paragraph (a) of Sec.  1.1233-1 for determining the consummation of a 
short sale shall generally apply except that the date of entering into 
the short sale shall be deemed to be the date of sale if, on the date of 
entering into the short sale, the taxpayer owns (or on or before such 
date has entered into a contract or option to acquire) stock or 
securities identical to those sold short and subsequently delivers such 
stock or securities to close the short sale.
    (h) The following examples illustrate the application of this 
section:

    Example 1. A, whose taxable year is the calendar year, on December 
1, 1954, purchased 100 shares of common stock in the M Company for 
$10,000 and on December 15, 1954, purchased 100 additional shares for 
$9,000. On January 3, 1955, he sold the 100 shares purchased on December 
1, 1954, for $9,000. Because of the provisions of section 1091, no loss 
from the sale is allowable as a deduction.
    Example 2. A, whose taxable year is the calendar year, on September 
21, 1954, purchased 100 shares of the common stock of the M Company for 
$5,000. On December 21, 1954, he purchased 50 shares of substantially 
identical stock for $2,750, and on December 27, 1954, he purchased 25 
additional shares of such stock for $1,125. On January 3, 1955, he sold 
for $4,000 the 100 shares purchased on September 21, 1954. There is an 
indicated loss

[[Page 263]]

of $1,000 on the sale of the 100 shares. Since, within the 61-day 
period, A purchased 75 shares of substantially identical stock, the loss 
on the sale of 75 of the shares ($3,750-$3,000, or $750) is not 
allowable as a deduction because of the provisions of section 1091. The 
loss on the sale of the remaining 25 shares ($1,250-$1,000, or $250) is 
deductible subject to the limitations provided in sections 267 and 1211. 
The basis of the 50 shares purchased December 21, 1954, the acquisition 
of which resulted in the nondeductibility of the loss ($500) sustained 
on 50 of the 100 shares sold on January 3, 1955, is $2,500 (the cost of 
50 of the shares sold on January 3, 1955) + $750 (the difference between 
the purchase price ($2,750) of the 50 shares acquired on December 21, 
1954, and the selling price ($2,000) of 50 of the shares sold on January 
3, 1955), or $3,250. Similarly, the basis of the 25 shares purchased on 
December 27, 1954, the acquisition of which resulted in the 
nondeductibility of the loss ($250) sustained on 25 of the shares sold 
on January 3, 1955, is $1,250 + $125, or $1,375. See Sec.  1.1091-2.
    Example 3. A, whose taxable year is the calendar year, on September 
15, 1954, purchased 100 shares of the stock of the M Company for $5,000. 
He sold these shares on February 1, 1956, for $4,000. On each of the 
four days from February 15, 1956, to February 18, 1956, inclusive, he 
purchased 50 shares of substantially identical stock for $2,000. There 
is an indicated loss of $1,000 from the sale of the 100 shares on 
February 1, 1956, but, since within the 61-day period A purchased not 
less than 100 shares of substantially identical stock, the loss is not 
deductible. The particular shares of stock the purchase of which 
resulted in the nondeductibility of the loss are the first 100 shares 
purchased within such period, that is, the 50 shares purchased on 
February 15, 1956, and the 50 shares purchased on February 16, 1956. In 
determining the period for which the 50 shares purchased on February 15, 
1956, and the 50 shares purchased on February 16, 1956, were held, there 
is to be included the period for which the 100 shares purchased on 
September 15, 1954, and sold on February 1, 1956, were held.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6926, 32 FR 
11468, Aug. 9, 1967]



Sec.  1.1091-2  Basis of stock or securities acquired in ``wash sales''.

    (a) In general. The application of section 1091(d) may be 
illustrated by the following examples:

    Example 1. A purchased a share of common stock of the X Corporation 
for $100 in 1935, which he sold January 15, 1955, for $80. On February 
1, 1955, he purchased a share of common stock of the same corporation 
for $90. No loss from the sale is recognized under section 1091. The 
basis of the new share is $110; that is, the basis of the old share 
($100) increased by $10, the excess of the price at which the new share 
was acquired ($90) over the price at which the old share was sold ($80).
    Example 2. A purchased a share of common stock of the Y Corporation 
for $100 in 1935, which he sold January 15, 1955, for $80. On February 
1, 1955, he purchased a share of common stock of the same corporation 
for $70. No loss from the sale is recognized under section 1091. The 
basis of the new share is $90; that is, the basis of the old share 
($100) decreased by $10, the excess of the price at which the old share 
was sold ($80) over the price at which the new share was acquired ($70).

    (b) Special rule. For a special rule as to the adjustment to basis 
required under section 1091(d) in the case of wash sales involving 
certain regulated investment company stock for which there is an average 
basis, see paragraph (e)(3)(iii) (c) and (d) of Sec.  1.1012-1.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 7129, 36 FR 
12738, July 7, 1971]



Sec.  1.1092(b)-1T  Coordination of loss deferral rules 
and wash sale rules (temporary).

    (a) In general. Except as otherwise provided, in the case of the 
disposition of a position or positions of a straddle, the rules of 
paragraph (a)(1) of this section apply before the application of the 
rules of paragraph (a)(2) of this section.
    (1) Any loss sustained from the disposition of shares of stock or 
securities that constitute positions of a straddle shall not be taken 
into account for purposes of this subtitle if, within a period beginning 
30 days before the date of such disposition and ending 30 days after 
such date, the taxpayer has acquired (by purchase or by an exchange on 
which the entire amount of gain or loss was recognized by law), or has 
entered into a contract or option so to acquire, substantially identical 
stock or securities.
    (2) Except as otherwise provided, if a taxpayer disposes of less 
than all of the positions of a straddle, any loss sustained with respect 
to the disposition of that position or positions (hereinafter referred 
to as loss position) shall not be taken into account for purposes of 
this subtitle to the extent that the amount of unrecognized gain as of 
the

[[Page 264]]

close of the taxable year in one or more of the following positions--
    (i) Successor positions,
    (ii) Offsetting positions to the loss position, or
    (iii) Offsetting positions to any successor position,

exceeds the amount of loss disallowed under paragraph (a)(1) of this 
section. See Sec.  1.1092(b)-5T relating to definitions.
    (b) Carryover of disallowed loss. Any loss that is disallowed under 
paragraph (a) of this section shall, subject to any further application 
of paragraph (a)(1) of this section and the limitations under paragraph 
(a)(2) of this section, be treated as sustained in the succeeding 
taxable year. However, a loss disallowed in Year 1, for example, under 
paragraph (a)(1) of this section will not be allowed in Year 2 unless 
the substantially identical stock or securities, the acquisition of 
which caused the loss to be disallowed in Year 1, are disposed of during 
Year 2 and paragraphs (a)(1) and (a)(2) of this section do not apply in 
Year 2 to disallow the loss.
    (c) Treatment of disallowed loss--(1) Character. If the disposition 
of a loss position would (but for the application of this section) 
result in a capital loss, the loss allowed under paragraph (b) of this 
section with respect to the disposition of the loss position shall be 
treated as a capital loss. In any other case, a loss allowed under 
paragraph (b) of this section shall be treated as an ordinary loss. For 
example, if the disposition of a loss position would, but for the 
application of paragraph (a) of this section, give rise to a capital 
loss, that loss when allowed pursuant to paragraph (b) of this section 
will be treated as a capital loss on the date the loss is allowed 
regardless of whether any gain or loss with respect to one or more 
successor positions would be treated as ordinary income or loss.
    (2) Section 1256 contracts. If the disposition of a loss position 
would (but for the application of this section) result in 60 percent 
long-term capital loss and 40 percent short-term capital loss, the loss 
allowed under paragraph (b) of this section with respect to the 
disposition of the loss position shall be treated as 60 percent long-
term capital loss and 40 percent short-term capital loss regardless of 
whether any gain or loss with respect to one or more successor positions 
would be treated as 100 percent long-term or short-term capital gain or 
loss.
    (d) Exceptions. (1) This section shall not apply to losses 
sustained--
    (i) With respect to the disposition of one or more positions that 
constitute part of a hedging transaction;
    (ii) With respect to the disposition of a loss position included in 
a mixed straddle account (as defined in paragraph (b) of Sec.  
1.1092(b)-4T); and
    (iii) With respect to the disposition of a position that is part of 
a straddle consisting only of section 1256 contracts.
    (2) Paragraph (a)(1) of this section shall not apply to losses 
sustained by a dealer in stock or securities if such losses are 
sustained in a transaction made in the ordinary course of such business.
    (e) Coordination with section 1091. Section 1092(b) applies in lieu 
of section 1091 to losses sustained from the disposition of positions in 
a straddle. See example (18) of paragraph (g) of this section.
    (f) Effective date. The provisions of this section apply to 
dispositions of loss positions on or after January 24, 1985.
    (g) Examples. This section may be illustrated by the following 
examples. It is assumed in each example that the following positions are 
the only positions held directly or indirectly (through a related person 
or flowthrough entity) by an individual calendar year taxpayer during 
the taxable year and none of the exceptions contained in paragraph (d) 
of this section apply.

    Example 1. On December 1, 1985, A enters into offsetting long and 
short positions. On December 10, 1985, A disposes of the short position 
at an $11 loss, at which time there is $5 of unrealized gain in the 
offsetting long position. At year-end there is still $5 of unrecognized 
gain in the offsetting long position. Under these circumstances, $5 of 
the $11 loss will be disallowed for 1985 because there is $5 of 
unrecognized gain in the offsetting long position; the remaining $6 of 
loss, however, will be taken into account in 1985.
    Example 2. Assume the facts are the same as in example (1), except 
that at year-end

[[Page 265]]

there is $11 of unrecognized gain in the offsetting long position. Under 
these circumstances, the entire $11 loss will be disallowed for 1985 
because there is $11 of unrecognized gain at year-end in the offsetting 
long position.
    Example 3. Assume the facts are the same as in example (1), except 
that at year-end there is no unrecognized gain in the offsetting long 
position. Under these circumstances, the entire $11 loss will be allowed 
for 1985.
    Example 4. On November 1, 1985, A enters into offsetting long and 
short positions. On November 10, 1985, A disposes of the long position 
at a $10 loss, at which time there is $10 of unrealized gain in the 
short position. On November 11, 1985, A enters into a new long position 
(successor position) that is offsetting with respect to the retained 
short position but is not substantially identical to the long position 
disposed of on November 10, 1985. A holds both positions through year-
end, at which time there is $10 of unrecognized gain in the successor 
long position and no unrecognized gain in the offsetting short position. 
Under these circumstances, the entire $10 loss will be disallowed for 
1985 because there is $10 of unrecognized gain in the successor long 
position.
    Example 5. Assume the facts are the same as in example (4), except 
that at year-end there is $4 of unrecognized gain in the successor long 
position and $6 of unrecognized gain in the offsetting short position. 
Under these circumstances, the entire $10 loss will be disallowed for 
1985 because there is a total of $10 of unrecognized gain in both the 
successor long position and offsetting short position.
    Example 6. Assume the facts are the same as in example (4), except 
that at year-end A disposes of the offsetting short position at a $2 
loss. Under these circumstances, $10 of the total $12 loss will be 
disallowed because there is $10 of unrecognized gain in the successor 
long position.
    Example 7. Assume the facts are the same as in example (4), and on 
January 10, 1986, A disposes of the successor long position at no gain 
or loss. A holds the offsetting short position until year-end, at which 
time there is $10 of unrecognized gain. Under these circumstances, the 
$10 loss will be disallowed for 1986 because there is $10 of 
unrecognized gain in an offsetting position at year-end.
    Example 8. Assume the facts are the same as in example (4), except 
at year-end there is $8 of unrecognized gain in the successor long 
position and $8 of unrecognized loss in the offsetting short position. 
Under these circumstances, $8 of the total $10 realized loss will be 
disallowed because there is $8 of unrecognized gain in the successor 
long position.
    Example 9. On October 1, 1985, A enters into offsetting long and 
short positions. Neither the long nor the short position is stock or 
securities. On October 2, 1985, A disposes of the short position at a 
$10 loss and the long position at a $10 gain. On October 3, 1985, A 
enters into a long position identical to the original long position. At 
year-end there is $10 of unrecognized gain in the second long position. 
Under these circumstances, the $10 loss is allowed because the second 
long position is not a successor position or offsetting position to the 
short loss position.
    Example 10. On November 1, 1985, A enters into offsetting long and 
short positions. On November 10, 1985, there is $20 of unrealized gain 
in the long position and A disposes of the short position at a $20 loss. 
By November 15, 1985, the value of the long position has declined 
eliminating all unrealized gain in the position. On November 15, 1985, A 
establishes a second short position (successor position) that is 
offsetting with respect to the long position but is not substantially 
identical to the short position disposed of on November 10, 1985. At 
year-end there is no unrecognized gain in the offsetting long position 
or in the successor short position. Under these circumstances, the $20 
loss sustained with respect to the short loss position will be allowed 
for 1985 because at year-end there is no unrecognized gain in the 
successor short position or the offsetting long position.
    Example 11. Assume the facts are the same as in example (10), except 
that the second short position was established on November 8, 1985, and 
there is $20 of unrecognized gain in the second short position at year-
end. Since the second short position was entered into within 30 days 
before the disposition of the loss position, the second short position 
is considered a successor position to the loss position. Under these 
circumstances, the $20 loss will be disallowed because there is $20 of 
unrecognized gain in a successor position.
    Example 12. Assume the facts are the same as in example (10), except 
that at year-end there is $18 of unrecognized gain in the offsetting 
long position and $18 of unrecognized gain in the successor short 
position. Under these circumstances, the entire loss will be disallowed 
because there is more than $20 of unrecognized gain in both the 
successor short position and offsetting long position.
    Example 13. Assume the facts are the same as in example (10), except 
that there is $20 of unrecognized gain in the successor short position 
and no unrecognized gain in the offsetting long position at year-end. 
Under these circumstances, the entire $20 loss will be disallowed 
because there is $20 of unrecognized gain in the successor short 
position.
    Example 14. On January 2, 1986, A enters into offsetting long and 
short positions. Neither the long nor the short position is stock or 
securities. On March 3, 1986, A disposes of the long position at a $10 
gain. On March 10, 1986, A disposes of the short position at a $10 loss. 
On March 14, 1986, A enters into a new

[[Page 266]]

short position. On April 10, 1986, A enters into an offsetting long 
position. A holds both positions to year-end, at which time there is $10 
of unrecognized gain in the offsetting long position and no unrecognized 
gain or loss in the short position. Under these circumstances, the $10 
loss will be allowed because (1) the rules of paragraph (a)(1) of this 
section are not applicable; and (2) the rules of paragraph (a)(2) of 
this section do not apply, since all positions of the straddle that 
contained the loss position were disposed of.
    Example 15. On December 1, 1985, A enters into offsetting long and 
short positions. On December 4, 1985, A disposes of the short position 
at a $10 loss. On December 5, 1985, A establishes a new short position 
that is offsetting to the long position, but is not substantially 
identical to the short position disposed of on December 4, 1985. On 
December 6, 1985, A disposes of the long position at a $10 gain. On 
December 7, 1985, A enters into a second long position that is 
offsetting to the new short position, but is not substantially identical 
to the long position disposed of on December 6, 1985. A holds both 
positions to year-end at which time there is no unrecognized gain in the 
second short position and $10 of unrecognized gain in the offsetting 
long position. Under these circumstances, the entire $10 loss will be 
disallowed for the 1985 taxable year because the second long position is 
an offsetting position with respect to the second short position which 
is a successor position.
    Example 16. On September 1, 1985, A enters into offsetting positions 
consisting of a long section 1256 contract and short non-section 1256 
position. No elections under sections 1256(d)(1) or 1092(b)(2)(A), 
relating to mixed straddles, are made. On November 1, 1985, at which 
time there is $20 of unrecognized gain in the short non-section 1256 
position, A disposes of the long section 1256 contract at a $20 loss and 
on the same day acquires a long non-section 1256 position (successor 
position) that is offsetting with respect to the short non-section 1256 
position. But for the application of this section, A's disposition of 
the section 1256 contract would give rise to a capital loss. At year-end 
there is a $20 of unrecognized gain in the offsetting short non-section 
1256 position and no unrecognized gain in the successor long position. 
Under these circumstances, the entire $20 loss will be disallowed for 
1985 because there is $20 unrecognized gain in the offsetting short 
position. In 1986, A disposes of the successor long non-section 1256 
position and there is no unrecognized gain at year-end in the offsetting 
short position. Under these circumstances, the $20 loss disallowed in 
1985 with respect to the section 1256 contract will be treated in 1986 
as 60 percent long-term capital loss and 40 percent short-term capital 
loss.
    Example 17. On January 2, 1986, A, not a dealer in stock or 
securities, acquires stock in X Corporation (X stock) and an offsetting 
put option. On March 3, 1986, A disposes of the X stock at a $10 loss. 
On March 10, 1986, A disposes of the put option at a $10 gain. On March 
14, 1986, A acquires new X stock that is substantially identical to the 
X stock disposed of on March 3, 1986. A holds the X stock to year-end. 
Under these circumstances, the $10 loss will be disallowed for 1986 
under paragraph (a)(1) of this section because A, within a period 
beginning 30 days before March 3, 1986 and ending 30 days after such 
date, acquired stock substantially identical to the X stock disposed of.
    Example 18. On June 2, 1986, A, not a dealer in stock or securities, 
acquires stock in X Corporation (X stock). On September 2, 1986, A 
disposes of the X stock at a $100 loss. On September 15, 1986, A 
acquires new X stock that is substantially identical to the X stock 
disposed of on September 2, 1986, and an offsetting put option. A holds 
these straddle positions to year-end. Under these circumstances, section 
1091, rather than section 1092(b), will apply to disallow the $100 loss 
for 1986 because the loss was not sustained from the disposition of a 
position that was part of a straddle. See paragraph (e) of this section.
    Example 19. On November 1, 1985, A, not a dealer in stock or 
securities, acquires stock in Y Corporation (Y stock) and an offsetting 
put option. On November 12, 1985, there is $20 of unrealized gain in the 
put option and A disposes of the Y stock at a $20 loss. By November 15, 
1985, the value of the put option has declined eliminating all 
unrealized gain in the position. On November 15, 1985, A acquires a 
second Y stock position that is substantially identical to the Y stock 
disposed of on November 12, 1985. At year-end there is no unrecognized 
gain in the put option or the Y stock. Under these circumstances, the 
$20 loss will be disallowed for 1985 under paragraph (a)(1) of this 
section because A, within a period beginning 30 days before November 12, 
1985 and ending 30 days after such date, acquired stock substantially 
identical to the Y stock disposed of.
    Example 20. Assume the facts are the same as in Example 19 and that 
on December 31, 1986, A disposes of the put option at a $40 gain and 
there is $20 of unrecognized loss in the Y stock. Under these 
circumstances, the $20 loss which was disallowed in 1985 also will be 
disallowed for 1986 under the rules of paragraph (a)(1) of this section 
because A has not disposed of the stock substantially identical to the Y 
stock disposed of on November 12, 1985.
    Example 21. Assume the facts are the same as in example (19), except 
that on December 31, 1986, A disposes of the Y stock at a $20 loss and 
there is $40 of unrecognized gain in the put option. Under these 
circumstances, A will not recognize in 1986 either the $20 loss 
disallowed in 1985 or the $20 loss sustained

[[Page 267]]

with respect to the December 31, 1986 disposition of Y stock. Paragraph 
(a)(1) of this section does not apply to disallow the losses in 1986 
since the substantially identical Y stock was disposed of during the 
year (and no substantially identical stock or securities was acquired by 
A within the 61 day period). However, paragraph (a)(2) of this section 
applies to disallow for 1986 the $40 of losses sustained with respect to 
the dispositions of positions in the straddle because there is $40 of 
unrecognized gain in the put option, an offsetting position to the loss 
positions.
    Example 22. On January 2, 1986, A, not a dealer in stock or 
securities, acquires stock in X Corporation (X stock) and an offsetting 
put option. On March 3, 1986, A disposes of the X stock at a $10 loss. 
On March 17, 1986, A acquires new X stock that is substantially 
identical to the X stock disposed of on March 3, 1986. On December 31, 
1986, A disposes of the X stock at a $5 gain, at which time there is $5 
of unrecognized gain in the put option. Under these circumstances, the 
$10 loss sustained with respect to the March 3, 1986, disposition of X 
stock will be allowed under paragraph (a) (1) of this section since the 
substantially identical X stock acquired on March 17, 1986, was disposed 
of by year-end (and no substantially identical stock or securities were 
acquired by A within the 61 day period). However, $5 of the $10 loss 
will be disallowed under paragraph (a)(2) of this section because there 
is $5 of unrecognized gain in the put option, an offsetting position to 
the loss position.
    Example 23. Assume the facts are the same as in example (22), except 
that on December 31, 1986, A disposes of the offsetting put option at a 
$5 loss and there is $5 of unrecognized gain in the X stock acquired on 
March 17, 1986. Under these circumstances, the $10 loss sustained with 
respect to the X stock disposed of on March 3, 1986, will be disallowed 
for 1986 under paragraph (a)(1) of this section. The $5 loss sustained 
upon the disposition of the put option will be allowed because (1) the 
rules of paragraph (a)(1) of this section are not applicable; and (2) 
the rules of paragraph (a)(2) of this section allow the loss, since the 
unrecognized gain in the X stock ($5) is not in excess of the loss ($10) 
disallowed under paragraph (a)(1) of this section.
    Example 24. On January 2, 1986, A, not a dealer in stock or 
securities, acquires 200 shares of Z Corporation stock (Z stock) and 2 
put options on Z stock (giving A the right to sell 200 shares of Z 
stock). On September 2, 1986, there is $200 of unrealized gain in the 
put option positions and A disposes of the 200 shares of Z stock at a 
$200 loss. On September 10, 1986, A acquires 100 shares of Z stock 
(substantially identical to the Z stock disposed of on September 2, 
1986), and a call option that is offsetting to the put options on Z 
stock and that is not an option to acquire property substantially 
identical to the Z stock disposed of on September 2, 1986. At year-end, 
there is $80 of unrecognized gain in the Z stock position, $80 of 
unrecognized gain in the call option position, and no unrecognized gain 
or loss in the offsetting put option positions. Under these 
circumstances, $40 of the $200 loss sustained with respect to the 
September 2, 1986 disposition of Z stock will be recognized by A in 1986 
under paragraph (a) of this section, as set forth below. Paragraph 
(a)(1) of this section applies first to disallow $100 of the loss (\1/2\ 
of the loss), since 100 shares of substantially identical Z stock (\1/2\ 
of the stock) were acquired within the 61 day period. Paragraph (a)(2) 
of this section then applies to disallow that portion of the loss 
allowed under paragraph (a)(1) of this section ($200-$100 = $100) equal 
to the excess of the total unrecognized gain in the Z stock and call 
option positions (successor positions to the loss position) ($80 + $80 = 
$160) over the $100 loss disallowed under paragraph (a)(1) of this 
section ($160-$100 = $60; $100-$60 = $40).
    Example 25. Assume the facts are the same as in example (24), except 
that at year-end there is $110 of unrecognized gain in the Z stock 
position, $78 of unrecognized gain in the call option position, and $10 
of unrecognized gain in the offsetting put option positions. Under these 
circumstances, $2 of the $200 loss sustained with respect to the 
September 2, 1986 disposition of Z stock will be allowed in 1986 under 
paragraph (a) of this section, as set forth below. Paragraph (a)(1) of 
this section applies first to disallow $100 of the loss (\1/2\ of the 
loss) since 100 shares of substantially identical Z stock (\1/2\ of the 
stock) were acquired within the 61 day period. Paragraph (a)(2) of this 
section then applies to disallow that portion of the loss allowed under 
paragraph (a)(1) of this section ($200-$100 = $100) equal to the excess 
of the total unrecognized gain in the Z stock and call option positions 
(successor positions to the loss position) and the put option positions 
(offsetting positions to the loss position) ($110 + $78 + $10 = $198) 
over the $100 loss disallowed under paragraph (a)(1) of this section 
($198-$100 = $98; $100-$98 = $2).
    Example 26. Assume the facts are the same as in example (24), except 
that at year-end there is $120 of unrecognized gain in the Z stock 
position, $88 of unrecognized gain in the call option position, and $10 
of unrecognized loss in one of the offsetting put option positions. At 
year-end A disposes of the other put option position at a $10 loss. 
Under these circumstances, $2 of the $210 loss sustained with respect to 
the September 2, 1986 disposition of Z stock ($200) and the year-end 
disposition of a put option ($10) will be allowed in 1986 under 
paragraph (a) of this section, as set forth below. Paragraph (a)(1) of 
this section applies first to disallow $100 of the loss from the 
disposition of Z stock (\1/2\ of

[[Page 268]]

the loss), since 100 shares of substantially identical Z stock (\1/2\ of 
the stock) were acquired within the 61 day period. Paragraph (a)(2) of 
this section then applies to disallow that portion of the loss allowed 
under paragraph (a)(1) of this section ($210-$100 = $110) equal to the 
excess of the total unrecognized gain in the Z stock and call option 
positions (successor positions to the Z stock loss position, and 
offsetting positions to the put option loss position) ($120 + $88 = 
$208) over the $100 loss disallowed under paragraph (a)(1) of this 
section ($208-$100 = $108; $110-$108 = $2).
    Example 27. On January 27, 1986, A enters into offsetting long (L1) 
and short (S1) positions. Neither L1 nor S1 nor any other positions 
entered into by A in 1986 are stock or securities. On February 3, 1986, 
A disposes of L1 at a $10 loss. On February 5, 1986, A enters into a new 
long position (L2) that is offsetting to S1. On October 15, 1986, A 
disposes of S1 at an $11 loss. On October 17, 1986, A enters into a new 
short position (S2) that is offsetting to L2. On December 30, 1986, A 
disposes of L2 at a $12 loss. On December 31, 1986, A enters into a new 
long position (L3) that is offsetting to S2. At year-end, S2 has an 
unrecognized gain of $33. Paragraph (a)(1) of this section does not 
apply since none of the positions were shares of stock or securities. 
However, all $33 ($10 + $11 + $12) of the losses sustained with respect 
to L1, S1 and L2 will be disallowed under paragraph (a)(2) because there 
is $33 of unrecognized gain in S2 at year-end. The $10 loss from the 
disposition of L1 is disallowed because S2 is or was an offsetting 
position to a successor long position (L2 or L3). The $11 loss from the 
disposition of S1 is disallowed because S2 is a successor position to 
S1. The $12 loss from the disposition of L2 is disallowed because S2 was 
an offsetting position to L2.

(Secs. 1092(b) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
917, 95 Stat. 324, 26 U.S.C. 1092(b), 7805) and sec. 102(h) of the Tax 
Reform Act of 1984 (98 Stat. 625))

[T.D. 8007, 50 FR 3319, Jan. 24, 1985, as amended by T.D. 8070, 51 FR 
1786, Jan. 15, 1986; 51 FR 3773, Jan. 30, 1986; 51 FR 5516, Feb. 14, 
1986]



Sec.  1.1092(b)-2T  Treatment of holding periods and losses 
with respect to straddle positions (temporary).

    (a) Holding period--(1) In general. Except as otherwise provided in 
this section, the holding period of any position that is part of a 
straddle shall not begin earlier than the date the taxpayer no longer 
holds directly or indirectly (through a related person or flowthrough 
entity) an offsetting position with respect to that position. See Sec.  
1.1092(b)-5T relating to definitions.
    (2) Positions held for the long-term capital gain holding period (or 
longer) prior to establishment of the straddle. Paragraph (a)(1) of this 
section shall not apply to a position held by a taxpayer for the long-
term capital gain holding period (or longer) before a straddle that 
includes such position is established. The determination of whether a 
position has been held by a taxpayer for the long-term capital gain 
holding period (or longer) shall be made by taking into account the 
application of paragraph (a)(1) of this section. See section 1222(3) 
relating to the holding period for long-term capital gains.
    (b) Treatment of loss--(1) In general. Except as provided in 
paragraph (b)(2) of this section, loss on the disposition of one or more 
positions (loss position) of a straddle shall be treated as a long-term 
capital loss if--
    (i) On the date the taxpayer entered into the loss position the 
taxpayer held directly or indirectly (through a related person or 
flowthrough entity) one or more offsetting positions with respect to the 
loss position; and
    (ii) All gain or loss with respect to one or more positions in the 
straddle would be treated as long-term capital gain or loss if such 
positions were disposed of on the day the loss position was entered 
into.
    (2) Special rules for non-section 1256 positions in a mixed 
straddle. Loss on the disposition of one or more positions (loss 
position) that are part of a mixed straddle and that are non-section 
1256 positions shall be treated as 60 percent long-term capital loss and 
40 percent short-term capital loss if--
    (i) Gain or loss from the disposition of one or more of the 
positions of the straddle that are section 1256 contracts would be 
considered gain or loss from the sale or exchange of a capital asset;
    (ii) The disposition of no position in the straddle (other than a 
section 1256 contract) would result in a long-term capital gain or loss; 
and
    (iii) An election under section 1092(b)(2)(A)(i)(I) (relating to 
straddle-by-straddle identification) or 1092(b)(2)(A)(i)(II) (relating 
to mixed straddle accounts) has not been made.
    (c) Exceptions--(1) In general. This section shall not apply to 
positions that--

[[Page 269]]

    (i) Constitute part of a hedging transaction;
    (ii) Are included in a straddle consisting only of section 1256 
contracts; or
    (iii) Are included in a mixed straddle account (as defined in 
paragraph (b) of Sec.  1.1092(b)-4T).
    (2) Straddle-by-straddle identification. Paragraphs (a)(2) and (b) 
of this section shall not apply to positions in a section 1092(b)(2) 
identified mixed straddle. See Sec.  1.1092(b)-3T.
    (d) Special rule for positions held by regulated investment 
companies. For purposes of section 851(b)(3) (relating to the definition 
of a regulated investment company), the holding period rule of paragraph 
(a) of this section shall not apply to positions of a straddle. However, 
if section 1233(b) (without regard to sections 1233(e)(2)(A) and 
1092(b)) would have applied to such positions, then for purposes of 
section 851(b)(3) the rules of section 1233(b) shall apply. Similarly, 
the effect of daily marking-to-market provided under Sec.  1.1092(b)-
4T(c) will be disregarded for purposes of section 851(b)(3).
    (e) Effective date--(1) In general. Except as provided in paragraph 
(e)(2) of this section, the provisions of this section apply to 
positions in a straddle established after June 23, 1981, in taxable 
years ending after such date.
    (2) Special effective date for mixed straddle positions. The 
provisions of paragraph (b)(2) of this section shall apply to positions 
in a mixed straddle established on or after January 1, 1984.
    (f) Examples. Paragraphs (a) through (e) may be illustrated by the 
following examples. It is assumed in each example that the following 
positions are the only positions held directly or indirectly (through a 
related person or flowthrough entity) by an individual calendar year 
taxpayer during the taxable year and none of the exceptions in paragraph 
(c) of this section apply.

    Example 1. On October 1, 1984, A acquires gold. On January 1, 1985, 
A enters into an offsetting short gold forward contract. On April 1, 
1985, A disposes of the short gold forward contract at no gain or loss. 
On April 10, 1985, A sells the gold at a gain. Since the gold had not 
been held for more than 6 months before the offsetting short position 
was entered into, the holding period for the gold begins no earlier than 
the time the straddle is terminated. Thus, the holding period of the 
original gold purchased on October 1, 1984, and sold on April 10, 1985, 
begins on April 1, 1985, the date the straddle was terminated. 
Consequently, gain recognized with respect to the gold will be treated 
as short-term capital gain.
    Example 2. On January 1, 1985, A enters into a long gold forward 
contract. On May 1, 1985, A enters into an offsetting short gold 
regulated futures contract. A does not make an election under section 
1256(d) or 1092(b)(2)(A). On August 1, 1985, A disposes of the gold 
forward contract at a gain. Since the forward contract had not been held 
by A for more than 6 months prior to the establishment of the straddle, 
the holding period for the forward contract begins no earlier than the 
time the straddle is terminated. Thus, the gain recognized on the 
closing of the gold forward contract will be treated as short-term 
capital gain.
    Example 3. Assume the facts are the same as in example (2), except 
that A disposes of the short gold regulated futures contract on July 1, 
1985, at no gain or loss and the forward contract on November 1, 1985. 
Since the forward contract had not been held for more than 6 months 
before the mixed straddle was established, the holding period for the 
forward contract begins July 1, 1985, the date the straddle terminated. 
Thus, the gain recognized on the closing of the forward contract will be 
treated as short-term capital gain.
    Example 4. On January 1, 1985, A enters into a long gold forward 
contract and on August 4, 1985, A enters into an offsetting short gold 
forward contract. On September 1, 1985, A disposes of the short position 
at a loss. Since an offsetting long position had been held by A for more 
than 6 months prior to the acquisition of the offsetting short position, 
the loss with respect to the closing of the short position will be 
treated as long-term capital loss.
    Example 5. On March 1, 1985, A enters into a long gold forward 
contract and on July 17, 1985, A enters into an offsetting short gold 
regulated futures contract. A does not make an election under section 
1256(d) or 1092(b)(2)(A). On August 10, 1985, A disposes of the long 
gold forward contract at a loss. Since the gold forward contract was 
part of a mixed straddle, and the disposition of no position in the 
straddle (other than the regulated futures contract) would give rise to 
a long-term capital loss, the loss recognized on the termination of the 
gold forward contract will be treated as 40 percent short-term capital 
loss and 60 percent long-term capital loss.
    Example 6. Assume the facts are the same as in example (5), except 
that on August 11, 1985, A disposes of the short gold regulated

[[Page 270]]

futures contract at a gain. Under these circumstances, the gain will be 
treated as 60 percent long-term capital gain and 40 percent short-term 
capital gain since the holding period rules of paragraph (a) of this 
section are not applicable to section 1256 contracts.
    Example 7. Assume the facts are the same as in example (5), except 
that A enters into the long gold forward contract on January 1, 1985, 
and does not dispose of the long gold forward contract but instead on 
August 10, 1985, disposes of the short gold regulated futures contract 
at a loss. Under these circumstances, the loss will be treated as a 
long-term capital loss since A held an offsetting non-section 1256 
position for more than 6 months prior to the establishment of the 
straddle. However, such loss may be subject to the rules of Sec.  
1.1092(b)-1T.

(Secs. 1092(b) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
917, 95 Stat. 324, 26 U.S.C. 1092(b), 7805) and sec. 102(h) of the Tax 
Reform Act of 1984 (98 Stat. 625))

[T.D. 8007, 50 FR 3320, Jan. 24, 1985, as amended by T.D. 8070, 51 FR 
1788, Jan. 15, 1986]



Sec.  1.1092(b)-3T  Mixed straddles; straddle-by-straddle identification 
under section 1092(b)(2)(A)(i)(I) (Temporary).

    (a) In general. Except as otherwise provided, a taxpayer shall treat 
in accordance with paragraph (b) of this section gains and losses on 
positions that are part of a mixed straddle for which the taxpayer has 
made an election under paragraph (d) of this section (hereinafter 
referred to as a section 1092(b)(2) identified mixed straddle). No 
election may be made under this section for any straddle composed of one 
or more positions that are includible in a mixed straddle account (as 
defined in paragraph (b) of Sec.  1.1092(b)-4T) or for any straddle for 
which an election under section 1256(d) has been made. See Sec.  
1.1092(b)-5T relating to definitions.
    (b) Treatment of gains and losses from positions included in a 
section 1092(b)(2) identified mixed straddle--(1) In general. Gains and 
losses from positions that are part of a section 1092(b)(2) identified 
mixed straddle shall be determined and treated in accordance with the 
rules of paragraph (b) (2) through (7) of this section.
    (2) All positions of a section 1092(b)(2) identified mixed straddle 
are disposed of on the same day. If all positions of a section 
1092(b)(2) identified mixed straddle are disposed of (or deemed disposed 
of) on the same say, gains and losses from section 1256 contracts in the 
straddle shall be netted, and gains and losses from non-section 1256 
positions in the straddle shall be netted. Net gain or loss from the 
section 1256 contracts shall then be offset against net gain or loss 
from the non-section 1256 positions to determine the net gain or loss 
from the straddle. If net gain or loss from the straddle is attributable 
to the positions of the straddle that are section 1256 contracts, such 
gain or loss shall be treated as 60 percent long-term capital gain or 
loss and 40 percent short-term capital gain or loss. If net gain or loss 
from the straddle is attributable to the positions of the straddle that 
are non-section 1256 positions, such gain or loss shall be treated as 
short-term capital gain or loss. This paragraph (b)(2) may be 
illustrated by the following examples. It is assumed in each example 
that the positions are the only positions held directly or indirectly 
(through a related person or flowthrough entity) by an individual 
calendar year taxpayer during the taxable year.

    Example 1. On April 1, 1985, A enters into a non-section 1256 
position and an offsetting section 1256 contract and makes a valid 
election to treat such straddle as a section 1092(b)(2) identified mixed 
straddle. On April 10, 1985, A disposes of the non-section 1256 position 
at a $600 loss and the section 1256 contract at a $600 gain. Under these 
circumstances, the $600 loss on the non-section 1256 position will be 
offset against the $600 gain on the section 1256 contract and the net 
gain or loss from the straddle will be zero.
    Example 2. Assume the facts are the same as in example (1), except 
that the gain on the section 1256 contract is $800. Under these 
circumstances, the $600 loss on the non-section 1256 position will be 
offset against the $800 gain on the section 1256 contract. The net gain 
of $200 from the straddle will be treated as 60 percent long-term 
capital gain and 40 percent short-term capital gain because it is 
attributable to the section 1256 contract.
    Example 3. Assume the facts are the same as in example (1), except 
that the loss on the non-section 1256 position is $800. Under these 
circumstances, the $600 gain on the section 1256 contract will be offset 
against the $800 loss on the non-section 1256 position. The net loss of 
$200 from the straddle will be treated as short-term capital loss 
because it is attributable to the non-section 1256 position.

[[Page 271]]

    Example 4. On May 1, 1985, A enters into a straddle consisting of 
two non-section 1256 positions and two section 1256 contracts and makes 
a valid election to treat the straddle as a section 1092(b)(2) 
identified mixed straddle. On May 10, 1985, A disposes of the non-
section 1256 positions, one at a $700 loss and the other at a $500 gain, 
and disposes of the section 1256 contracts, one at a $400 gain and the 
other at a $300 loss. Under these circumstances, the gain and losses 
from the section 1256 contracts and non-section 1256 positions will 
first be netted, resulting in a net gain of $100 ($400-$300) on the 
section 1256 contracts and a net loss of $200 ($700-$500) on the non-
section 1256 positions. The net gain of $100 from the section 1256 
contracts will then be offset against the $200 net loss on the non-
section 1256 positions. The net loss of $100 from the straddle will be 
treated as short-term capital loss because it is attributable to the 
non-section 1256 positions.
    Example 5. On December 30, 1985, A enters into a section 1256 
contract and an offsetting non-section 1256 position and makes a valid 
election to treat such straddle as a section 1092(b)(2) identified mixed 
straddle. On December 31, 1985, A disposes of the non-section 1256 
position at a $2,000 gain. A also realizes a $2,000 loss on the section 
1256 contract because it is deemed disposed of under section 1256(a)(1). 
Under these circumstances, the $2,000 gain on the non-section 1256 
position will be offset against the $2,000 loss on the section 1256 
contract, and the net gain or loss from the straddle will be zero.
    Example 6. Assume the facts are the same as in example (5), except 
that the section 1092(b)(2) identified mixed straddle was entered into 
on November 12, 1985, A realizes a $2,200 loss on the section 1256 
contract, and on December 15, 1985, A enters into a non-section 1256 
position that is offsetting to the non-section 1256 gain position of the 
section 1092(b)(2) identified mixed straddle. At year-end there is $200 
of unrecognized gain in the non-section 1256 position that was entered 
into on December 15. Under these circumstances, the $2,200 loss on the 
section 1256 contract will be offset against the $2,000 gain on the non-
section 1256 position. The net $200 loss from the straddle will be 
treated as 60 percent long-term capital loss and 40 percent short-term 
capital loss because it is attributable to the section 1256 contract. 
The net loss of $200 from the straddle will be disallowed in 1985 under 
the loss deferral rules of section 1092(a) because there is $200 of 
unrecognized gain in a successor position (as defined in paragraph (n) 
of Sec.  1.1092(b)-5T) at year-end. See paragraph (c) of this section.

    (3) All of the non-section 1256 positions of a section 1092(b)(2) 
identified mixed straddle disposed of on the same day. This paragraph 
(b)(3) applies if all of the non-section 1256 positions of a section 
1092(b)(2) identified mixed straddle are disposed of on the same day or 
if this paragraph (b)(3) is made applicable by paragraph (b)(5) of this 
section. In the case to which this paragraph (b)(3) applies, gain and 
loss realized from non-section 1256 positions shall be netted. Realized 
and unrealized gain and loss with respect to the section 1256 contracts 
of the straddle also shall be netted on that day. Realized net gain or 
loss from the non-section 1256 positions shall then be offset against 
net gain or loss from the section 1256 contracts to determine the net 
gain or loss from the straddle on that day. Net gain or loss from the 
straddle that is attributable to the non-section 1256 positions shall be 
realized and treated as short-term capital gain or loss on that day. Net 
gain or loss from the straddle that is attributable to realized gain or 
loss with respect to section 1256 contracts shall be realized and 
treated as 60 percent long-term capital gain or loss and 40 percent 
short-term capital gain or loss. Any gain or loss subsequently realized 
on the section 1256 contracts shall be adjusted (through an adjustment 
to basis or otherwise) to take into account the extent to which gain or 
loss was offset by unrealized gain or loss on the section 1256 contracts 
on that day. This paragraph (b)(3) may be illustrated by the following 
examples. It is assumed in each example that the positions are the only 
positions held directly or indirectly (through a related person or 
flowthrough entity) by an individual calendar year taxpayer during the 
taxable year.

    Example 1. On July 20, 1985, A enters into a section 1256 contract 
and an offsetting non-section 1256 position and makes a valid election 
to treat such straddle as a section 1092(b)(2) identified mixed 
straddle. On July 27, 1985, A disposes of the non-section 1256 position 
at a $1,500 loss, at which time there is $1,500 of unrealized gain in 
the section 1256 contract. A holds the section 1256 contract at year-end 
at which time there is $1,800 of gain. Under these circumstances, on 
July 27, 1985, A offsets the $1,500 loss on the non-section 1256 
position against the $1,500 gain on the section 1256 contract and 
realizes no gain or loss. On December 31, 1985, A realizes a $300 gain 
on the section 1256 contract because the position is deemed disposed of 
under section 1256(a)(1). The $300 gain is equal to $1,800 of gain less 
a $1,500 adjustment for unrealized gain offset against the

[[Page 272]]

loss realized on the non-section 1256 position on July 27, 1985, and the 
gain will be treated as 60 percent long-term capital gain and 40 percent 
short-term capital gain.
    Example 2. Assume the facts are the same as in example (1), except 
that on July 27, 1985, A realized a $1,700 loss on the non-section 1256 
position. Under these circumstances, on July 27, 1985, A offsets the 
$1,700 loss on the non-section 1256 position against the $1,500 gain on 
the section 1256 contract. A realizes a $200 loss from the straddle on 
July 27, 1985, which will be treated as short-term capital loss because 
it is attributable to the non-section 1256 position. On December 31, 
1985, A realizes a $300 gain on the section 1256 contract, computed as 
in example (1), which will be treated as 60 percent long-term capital 
gain and 40 percent short-term capital gain.
    Example 3. On March 1, 1985, A enters into a straddle consisting of 
two non-section 1256 positions and two section 1256 contracts and makes 
a valid election to treat such straddle as a section 1092(b)(2) 
identified mixed straddle. On March 11, 1985, A disposes of the non-
section 1256 positions, one at a $100 loss and the other at a $150 loss, 
and disposes of one section 1256 contract at a $100 loss. On that day 
there is $100 of unrealized gain on the section 1256 contract retained 
by A. A holds the remaining section 1256 contract at year-end, at which 
time there is $150 of gain. Under these circumstances, on March 11, 
1985, A will first net the gains and losses from the section 1256 
contracts and net the gains and losses from the non-section 1256 
positions resulting in no gain or loss on the section 1256 contracts and 
a net loss of $250 on the non-section 1256 positions. Since there is no 
gain or loss to offset against the non-section 1256 positions, the net 
loss of $250 will be treated as short-term capital loss because it is 
attributable to the non-section 1256 positions. On December 31, 1985, A 
realizes a $50 gain on the remaining section 1256 contract because the 
position is deemed disposed of under section 1256(a)(1). The $50 gain is 
equal to $150 gain less a $100 adjustment to take into account the $100 
unrealized gain that was offset against the $100 loss realized on the 
section 1256 contract on March 11, 1985.
    Example 4. Assume the facts are the same as in example (3), except 
that A disposes of the section 1256 contract at a $500 gain. As in 
example (3), A has a net loss of $250 on the non-section 1256 positions 
disposed of. In this example, however, A has net gain of $600 ($500 + 
$100) on the section 1256 contracts on March 11, 1985. Therefore, of the 
net gain from the straddle of $350 ($600-$250), $250 ($500-$250) is 
treated as 60 percent long-term capital gain and 40 percent short-term 
capital gain because only $250 is attributable to the realized gain from 
the section 1256 contract. In addition, because none of the $100 
unrealized gain from the remaining section 1256 contract was offset 
against gain or loss on the non-section 1256 positions, no adjustment is 
made under paragraph (b)(3) of this section and the entire $150 gain on 
December 31 with respect to that contract is realized on that date.

    (4) All of the section 1256 contracts of a section 1092(b)(2) 
identified mixed straddle disposed of on the same day. This paragraph 
(b)(4) applies if all of the section 1256 contracts of a section 
1092(b)(2) identified mixed straddle are disposed of (or deemed disposed 
of) on the same day or if this paragraph (b)(4) is made applicable by 
paragraph (b)(5) of this section. In the case to which this paragraph 
(b)(4) applies, gain and loss realized from section 1256 contracts shall 
be netted. Realized and unrealized gain and loss with respect to the 
non-section 1256 positions of the straddle also shall be netted on that 
day. Realized net gain or loss from the section 1256 contracts shall be 
treated as short-term capital gain or loss to the extent of net gain or 
loss on the non-section 1256 positions on that day. Net gain or loss 
with respect to the section 1256 contracts that exceeds the net gain or 
loss with respect to the non-section 1256 positions of the straddle 
shall be treated as 60 percent long-term capital gain or loss and 40 
percent short-term capital gain or loss. See paragraph (b)(7) of this 
section relating to the gain or loss on such non-section 1256 positions. 
This paragraph (b)(4) may be illustrated by the following examples. It 
is assumed in each example that the positions are the only positions 
held directly or indirectly (through a related person or flowthrough 
entity) by an individual calendar year taxpayer during the taxable year.

    Example 1. On December 30, 1985, A enters into a section 1256 
contract and an offsetting non-section 1256 position and makes a valid 
election to treat such straddle as a section 1092(b)(2) identified mixed 
straddle. On December 31, 1985, A disposes of the section 1256 contract 
at a $1,000 gain, at which time there is $1,000 of unrealized loss in 
the non-section 1256 position. Under these circumstances, the $1,000 
gain realized on the section 1256 contract will be treated as short-term 
capital gain because there is a $1,000 loss on the non-section 1256 
position.
    Example 2. Assume the facts are the same as in example (1), except 
that A realized a $1,500 gain on the disposition of the section

[[Page 273]]

1256 contract. Under these circumstances, $1,000 of the gain realized on 
the section 1256 contract will be treated as short-term capital gain 
because there is a $1,000 loss on the non-section 1256 position. The net 
gain of $500 from the straddle will be treated as 60 percent long-term 
capital gain and 40 percent short-term capital gain because it is 
attributable to the section 1256 contract.
    Example 3. Assume the facts are the same as in example (1), except 
that A realized a $1,000 loss on the section 1256 contract and there is 
$1,000 of unrecognized gain on the non-section 1256 position. Under 
these circumstances, the $1,000 loss on the section 1256 contract will 
be treated as short-term capital loss because there is a $1,000 gain on 
the non-section 1256 position. Such loss, however, will be disallowed in 
1985 under the loss deferral rules of section 1092(a) because there is 
$1,000 of unrecognized gain in an offsetting position at year-end. See 
paragraph (c) of this section.
    Example 4. Assume the facts are the same as in example (1), except 
that the section 1256 contract and non-section 1256 position were 
entered into on December 1, 1985, and the section 1256 contract is 
disposed of on December 19, 1985, for a $1,000 gain, at which time there 
is $1,000 of unrealized loss on the non-section 1256 position. At year-
end there is only $800 of unrealized loss in the non-section 1256 
position. Under these circumstances, the result is the same as in 
example (1) because there was $1,000 of unrealized loss on the non-
section 1256 position at the time of the disposition of the section 1256 
contract.
    Example 5. On July 15, 1985, A enters into a straddle consisting of 
two non-section 1256 positions and two section 1256 contracts and makes 
a valid election to treat such straddle as a section 1092(b)(2) 
identified mixed straddle. On July 20, 1985, A disposes of one non-
section 1256 position at a gain of $1,000 and both section 1256 
contracts at a net loss of $1,000. On the same day there is $200 of 
unrealized loss on the non-section 1256 position retained by A. Under 
these circumstances, realized and unrealized gain and loss with respect 
to the non-section 1256 positions is netted, resulting in a net gain of 
$800. Thus, $800 of the net loss on the section 1256 contracts disposed 
of will be treated as short-term capital loss because there is $800 of 
net gain on the non-section 1256 positions. In addition, the net loss of 
$200 from the straddle will be treated as 60 percent long-term capital 
loss and 40 percent short-term capital loss because it is attributable 
to the section 1256 contract.

    (5) Disposition of one or more, but not all, positions of a section 
1092(b)(2) identified mixed straddle on the same day. If one or more, 
but not all, of the positions of a section 1092(b)(2) identified mixed 
straddle are disposed of on the same day, and paragraphs (b) (3) and (4) 
of this section are not applicable (without regard to this paragraph 
(b)(5)), the gain and loss from the non-section 1256 positions that are 
disposed of on that day shall be netted, and the gain and loss from the 
section 1256 contracts that are disposed of on that day shall be netted. 
In order to determine whether the rules of paragraph (b)(3) or (b)(4) of 
this section apply, net gain or loss from the section 1256 contracts 
disposed of shall then be offset against net gain or loss from the non-
section 1256 positions disposed of to determine net gain or loss from 
such positions of the straddle. If net gain or loss from the disposition 
of such positions of the straddle is attributable to the non-section 
1256 positions disposed of, the rules prescribed in paragraph (b)(3) of 
this section apply. If net gain or loss from the disposition of such 
positions is attributable to the section 1256 contracts disposed of, the 
rules prescribed in paragraph (b)(4) of this section apply. If the net 
gain or loss from the netting of non-section 1256 positions disposed of 
and the netting of section 1256 contracts disposed of are either both 
gains or losses, the rules prescribed in paragraph (b)(3) of this 
section shall apply to net gain or loss from such non-section 1256 
positions, and the rules prescribed in paragraph (b)(4) of this section 
shall apply to net gain or loss from such section 1256 contracts. 
However, for purposes of determining the treatment of gain or loss 
subsequently realized on a position of such straddle, to the extent that 
unrealized gain or loss on other positions was used to offset realized 
gain or loss on a non-section 1256 position under paragraph (b)(3) of 
this section, or was used to treat realized gain or loss on a section 
1256 contract as short-term capital gain or loss under paragraph (b)(4) 
of this section, such amount shall not be used for such purposes again. 
This paragraph (b)(5) may be illustrated by the following examples. It 
is assumed that the positions are the only positions held directly or 
indirectly (through a related person or flowthrough entity) by an 
individual calendar year taxpayer during the taxable year.


[[Page 274]]


    Example 1. On July 15, 1985, A enters into a straddle consisting of 
four non-section 1256 positions and four section 1256 contracts and 
makes a valid election to treat such straddle as a section 1092(b)(2) 
identified mixed straddle. On July 20, 1985, A disposes of one non-
section 1256 position at a gain of $800 and one section 1256 contract at 
a loss of $300. On the same day there is $400 of unrealized net loss on 
the section 1256 contracts retained by A and $100 of unrealized net loss 
on the non-section 1256 positions retained by A. Under these 
circumstances, the loss of $300 on the section 1256 contract disposed of 
will be offset against the gain of $800 on the non-section 1256 position 
disposed of. The net gain of $500 is attributable to the non-section 
1256 position. Therefore, the rules of paragraph (b)(3) of this section 
apply. Under the rules of paragraph (b)(3) of this section, the net loss 
of $700 on the section 1256 contracts is offset against the net gain of 
$800 attributable to the non-section 1256 position disposed of. The net 
gain of $100 will be treated as short-term capital gain because it is 
attributable to the non-section 1256 position disposed of. Gain or loss 
subsequently realized on the section 1256 contracts will be adjusted to 
take into account the unrealized loss of $400 that was offset against 
the $800 gain attributable to the non-section 1256 position disposed of.
    Example 2. Assume the facts are the same as in Example 1, except 
that A disposes of the non-section 1256 position at a gain of $300 and 
the section 1256 contract at a loss of $800, and there is $200 of 
unrealized net gain in the non-section 1256 positions retained by A. 
Under these circumstances, the gain of $300 on the non-section 1256 
position disposed of will be offset against the loss of $800 on the 
section 1256 contract disposed of. The net loss of $500 is attributable 
to the section 1256 contract. Therefore, the rules of paragraph (b)(4) 
of this section apply. Under the rules of paragraph (b)(4) of this 
section, $500 of the net loss realized on the section 1256 contract will 
be treated as short-term capital loss because there is $500 of realized 
and unrealized gain in the non-section 1256 positions. The remaining net 
loss of $300 will be treated as 60 percent long-term capital loss and 40 
percent short-term capital loss because it is attributable to a section 
1256 contract disposed of. In addition, A realizes a $300 short-term 
capital gain attributable to the disposition of the non-section 1256 
position.
    Example 3. (i) Assume the facts are the same as in example (1), 
except that the section 1256 contract was disposed of at a $500 gain. 
Under these circumstances, there is gain of $500 attributable to the 
section 1256 contact disposed of and a gain of $800 attributable to the 
non-section 1256 position. Therefore, the rules of both paragraphs (b) 
(3) and (4) of this Sec.  1.1092(b)-3T apply.
    (ii) Under paragraph (b)(3) of this section, the realized and 
unrealized gains and losses on the section 1256 contracts are netted, 
resulting in a net gain of $100 ($500-$400). The section 1256 contract 
net gain does not offset the gain on the non-section 1256 position 
disposed of. Therefore, the gain of $800 on the non-section 1256 
position disposed of will be treated as a short-term capital gain 
because there is no net loss on the section 1256 contracts.
    (iii) Under paragraph (b)(4) of this section, the realized and 
unrealized gains and losses on the non-section 1256 positions are 
netted, resulting in a non-section 1256 position net gain of $700 ($800-
$100). Because there is no net loss on the non-section 1256 positions, 
the $500 gain realized on the section 1256 contract will be treated as 
60 percent long-term capital gain and 40 percent short-term capital 
gain.

    (6) Accrued gain and loss with respect to positions of a section 
1092(b)(2) identified mixed straddle established on or before August 18, 
2014. The rules of this paragraph (b)(6) apply to all section 1092(b)(2) 
identified mixed straddles established on or before August 18, 2014; see 
Sec.  1.1092(b)-6 for section 1092(b)(2) identified mixed straddles 
established after August 18, 2014. If one or more positions of a section 
1092(b)(2) identified mixed straddle were held by the taxpayer on the 
day prior to the day the section 1092(b)(2) identified mixed straddle is 
established, such position or positions shall be deemed sold for their 
fair market value as of the close of the last business day preceding the 
day such straddle is established. See Sec. Sec.  1.1092(b)-1T and 
1.1092(b)-2T for application of the loss deferral and wash sale rules 
and for treatment of holding periods and losses with respect to such 
positions. An adjustment (through an adjustment to basis or otherwise) 
shall be made to any subsequent gain or loss realized with respect to 
such to such position or positions for any gain or loss recognized under 
this paragraph (b)(6). This paragraph (b)(6) may be illustrated by the 
following examples. It is assumed in each example that the positions are 
the only positions held directly or indirectly (through a related person 
or flowthrough entity) by an individual calendar year taxpayer during 
the taxable year.

    Example 1. On January 1, 1985, A enters into a non-section 1256 
position. As of the close of the day on July 9, 1985, there is $500 of 
unrealized long-term capital gain in the non-section 1256 position. On 
July 10, 1985, A enters

[[Page 275]]

into an offsetting section 1256 contract and makes a valid election to 
treat the straddle as a section 1092(b)(2) identified mixed straddle. 
Under these circumstances, on July 9, 1985, A will recognize $500 of 
long-term capital gain on the non-section 1256 position.
    Example 2. On February 1, 1985, A enters into a section 1256 
contract. As of the close of the day on February 4, 1985, there is $500 
of unrealized gain on the section 1256 contract. On February 5, 1985, A 
enters into an offsetting non-section 1256 position and makes a valid 
election to treat the straddle as a section 1092(b)(2) identified mixed 
straddle. Under these circumstances, on February 4, 1985, A will 
recognize a $500 gain on the section 1256 contract, which will be 
treated as 60 percent long-term capital gain and 40 percent short-term 
capital gain.
    Example 3. Assume the facts are the same as in example (2) and that 
on February 10, 1985, there is $2,000 of unrealized gain in the section 
1256 contract. A disposes of the section 1256 contract at a $2,000 gain 
and disposes of the offsetting non-section 1256 position at a $1,000 
loss. Under these circumstances, the $2,000 gain on the section 1256 
contract will be reduced to $1,500 to take into account the $500 gain 
recognized when the section 1092(b)(2) identified mixed straddle was 
established. The $1,500 gain on the section 1256 contract will be offset 
against the $1,000 loss on the non-section 1256 position. The net $500 
gain from the straddle will be treated as 60 percent long-term capital 
gain and 40 percent short-term capital gain because it is attributable 
to the section 1256 contract.
    Example 4. On March 1, 1985, A enters into a non-section 1256 
position. As of the close of the day on March 2, 1985, there is $400 of 
unrealized short-term capital gain in the non-section 1256 position. On 
March 3, 1985, A enters into an offsetting section 1256 contract and 
makes a valid election to treat the straddle as a section 1092(b)(2) 
identified mixed straddle. On March 10, 1985, A disposes of the section 
1256 contract at a $500 loss and the non-section 1256 position at a $500 
gain. Under these circumstances, on March 2, 1985, A will recognize $400 
of short-term capital gain attributable to the gain accrued on the non-
section 1256 position prior to the day the section 1092(b)(2) identified 
mixed straddle was established. On March 10, 1985, the gain of $500 on 
the non-section 1256 position will be reduced to $100 to take into 
account the $400 of gain recognized when the section 1092(b)(2) 
identified mixed straddle was established. The $100 gain on the non-
section 1256 position will be offset against the $500 loss on the 
section 1256 contract. The net loss of $400 from the straddle will be 
treated as 60 percent long-term capital loss and 40 percent short-term 
capital loss because it is attributable to the section 1256 contract.

    (7) Treatment of gain and loss from non-section 1256 positions after 
disposition of all section 1256 contracts. Gain or loss on a non-section 
1256 position that is part of a section 1092(b)(2) identified mixed 
straddle and that is held after all section 1256 contracts in the 
straddle are disposed of shall be treated as short-term capital gain or 
loss to the extent attributable to the period when the positions were 
part of such straddle. See Sec.  1.1092(b)-2T for rules concerning the 
holding period of such positions. This paragraph (b)(7) may be 
illustrated by the following example. It is assumed that the positions 
are the only positions held directly or indirectly (through a related 
person or flowthrough entity) during the taxable years.

    Example: On December 1, 1985, A, an individual calendar year 
taxpayer, enters into a section 1256 contract and an offsetting non-
section 1256 position and makes a valid election to treat such straddle 
as a section 1092(b)(2) identified mixed straddle. On December 31, 1985, 
A disposes of the section 1256 contract at a $1,000 loss. On the same 
day, there is $1,000 of unrecognized gain in the non-section 1256 
position. The $1,000 loss on the section 1256 contract is treated as 
short-term capital loss because there is a $1,000 gain on the non-
section 1256 position, but the $1,000 loss is disallowed in 1985 because 
there is $1,000 of unrecognized gain in the offsetting nonsection 1256 
position. See section 1092(a) and Sec.  1.1092(b)-1T. On July 10, 1986, 
A disposes of the non-section 1256 position at a $1,500 gain, $500 of 
which is attributable to the post-straddle period. Under these 
circumstances, $1,000 of the gain on the non-section 1256 position will 
be treated as short-term capital gain because that amount of the gain is 
attributable to the period when the position was part of a section 
1092(b)(2) identified mixed straddle. The remaining $500 of the gain 
will be treated as long-term capital gain because the position was held 
for more than six months after the straddle was terminated. In addition, 
the $1,000 short-term capital loss disallowed in 1985 will be taken into 
account at this time.

    (c) Coordination with loss deferral and wash sale rules of Sec.  
1.1092(b)-1T. This section shall apply prior to the application of the 
loss deferral and wash sale rules of Sec.  1.1092(b)-1T.
    (d) Identification required--(1) In general. To elect the provisions 
of this section, a taxpayer must clearly identify on a reasonable and 
consistently applied economic basis each position that

[[Page 276]]

is part of the section 1092(b)(2) identified mixed straddle before the 
close of the day on which the section 1092(b)(2) identified mixed 
straddle is established. If the taxpayer disposes of a position that is 
part of a section 1092(b)(2) identified mixed straddle before the close 
of the day on which the straddle is established, such identification 
must be made at or before the time that the taxpayer disposes of the 
position. In the case of a taxpayer who is an individual, the close of 
the day is midnight (local time) in the location of the taxpayer's 
principal residence. In the case of all other taxpayers, the close of 
the day is midnight (local time) in the location of the taxpayer's 
principal place of business. Only the person or entity that directly 
holds all positions of a straddle may make the election under this 
section.
    (2) Presumptions. A taxpayer is presumed to have identified a 
section 1092(b)(2) identified mixed straddle by the time prescribed in 
paragraph (d)(1) of this section if the taxpayer receives independent 
verification of the identification (within the meaning of paragraph 
(d)(4) of this section). The presumption referred to in this paragraph 
(d)(2) may be rebutted by clear and convincing evidence to the contrary.
    (3) Corroborating evidence. If the presumption of paragraph (d)(2) 
of this section does not apply, the burden shall be on the taxpayer to 
establish that an election under paragraph (d)(1) of this section was 
made by the time specified in paragraph (d)(1) of this section. If the 
taxpayer has no evidence of the time when the identification required by 
paragraph (d)(1) of this section is made, other than the taxpayer's own 
testimony, the election is invalid unless the taxpayer shows good cause 
for failure to have evidence other than the taxpayer's own testimony.
    (4) Independent verification. For purposes of this section, the 
following constitute independent verification:
    (i) Separate account. Placement of one or more positions of a 
section 1092(b)(2) identified mixed straddle in a separate account 
designated as a section 1092(b)(2) identified mixed straddle account 
that is maintained by a broker (as defined in Sec.  1.6045-1(a)(1)), 
futures commission merchant (as defined in 7 U.S.C. 2 and 17 CFR 
1.3(p)), or similar person and in which notations are made by such 
person identifying all positions of the section 1092(b)(2) identified 
mixed straddle and stating the date the straddle is established.
    (ii) Confirmation. A written confirmation from a person referred to 
in paragraph (d)(4)(i) of this section, or from the party from which one 
or more positions of the section 1092(b)(2) identified mixed straddle 
are acquired, stating the date the straddle is established and 
identifying the other positions of the straddle.
    (iii) Other methods. Such other methods of independent verification 
as the Commissioner may approve at the Commissioner's discretion.
    (5) Section 1092 (b)(2) identified mixed straddles established 
before February 25, 1985. Notwithstanding the provisions of paragraph 
(d)(1) of this section, relating to the time of identification of a 
section 1092(b)(2) identified mixed straddle, a taxpayer may identify 
straddles that were established before February 25, 1985 as section 
1092(b)(2) identified mixed straddles after the time specified in 
paragraph (d)(1) of this section if the taxpayer adopts a reasonable and 
consistent economic basis for identifying the positions of such 
straddles.
    (e) Effective date--(1) In general. The provisions of this section 
shall apply to straddles established on or after January 1, 1984.
    (2) Pre-1984 accrued gain. If the last business day referred to in 
paragraph (b)(6) of this section is contained in a period to which 
paragraph (b)(6) does not apply, the gains and losses from the deemed 
sale shall be included in the first period to which paragraph (b)(6) 
applies.

(Secs. 1092(b)(1), 1092(b)(2) and 7805 of the Internal Revenue Code of 
1954 (68A Stat. 917, 98 Stat. 627; 26 U.S.C. 1092(b)(1), 1092(b)(2), 
7805))

[T.D. 8008, 50 FR 3325, Jan. 24, 1985; 50 FR 12243, Mar. 28, 1985; 50 FR 
19344, May 8, 1985; T.D. 9627, 78 FR 46808, Aug. 2, 2013; 78 FR 64397, 
Oct. 29, 2013; T.D. 9678, 79 FR 41888, July 18, 2014]



Sec.  1.1092(b)-4T  Mixed straddles; mixed straddle account (temporary).

    (a) In general. A taxpayer may elect (in accordance with paragraph 
(f) of

[[Page 277]]

this section) to establish one or more mixed straddle accounts (as 
defined in paragraph (b) of this section). Gains and losses from 
positions includible in a mixed straddle account shall be determined and 
treated in accordance with the rules set forth in paragraph (c) of this 
section. A mixed straddle account is treated as established as of the 
first day of the taxable year for which the taxpayer makes the election 
or January 1, 1984, whichever is later. See Sec.  1.1092(b)-5T relating 
to definitions.
    (b) Mixed straddle account defined--(1) In general. The term mixed 
straddle account means an account for determining gains and losses from 
all positions held as capital assets in a designated class of activities 
by the taxpayer at the time the taxpayer elects to establish a mixed 
straddle account. A separate mixed straddle account must be established 
for each separate designated class of activities.
    (2) Permissible designations. Except as otherwise provided in this 
section, a taxpayer may designate as a class of activities the types of 
positions that a reasonable person, on the basis of all the facts and 
circumstances, would ordinarily expect to be offsetting positions. This 
paragraph (b)(2) may be illustrated by the following example. It is 
assumed in the example that the positions are the only positions held 
directly or indirectly (through a related person or flowthrough entity) 
during the taxable year, and that gain or loss from the positions is 
treated as gain or loss from a capital asset.

    Example: B engages in transactions in dealer equity options on XYZ 
Corporation stock, stock in XYZ Corporation, dealer equity options on 
UVW Corporation stock, and stock in UVW Corporation. A reasonable 
person, on the basis of all the facts and circumstances, would not 
expect dealer equity options on XYZ Corporation stock and stock in XYZ 
Corporation to offset any dealer equity options on UVW Corporation stock 
or any stock in UVW Corporation. If B makes the mixed straddle account 
election under this section for all such positions, B must designate two 
separate classes of activities, one consisting of transactions in dealer 
equity options on XYZ Corporation stock and stock in XYZ Corporation, 
and the other consisting of transactions in dealer equity options on UVW 
Corporation stock and stock in UVW Corporation, and maintain two 
separate mixed straddle accounts.

    (3) Positions that offset positions in more than one mixed straddle 
account. Gains and losses from positions that a reasonable person, on 
the basis of all the facts and circumstances, ordinarily would expect to 
be offsetting with respect to positions in more than one mixed straddle 
account shall be allocated among such accounts under a reasonable and 
consistent method that clearly reflects income. This paragraph (b)(2) 
may be illustrated by the following example. It is assumed that the 
positions are the only positions held directly or indirectly (through a 
related person or flowthrough entity) during the taxable year, and that 
gain or loss from the positions is treated as gain or loss from a 
capital asset.

    Example: B holds stock in XYZ Corporation, UVW Corporation, and RST 
Corporation, and options on a broad based stock index future. A 
reasonable person, on the basis of all the facts and circumstances, 
would expect the stock in XYZ Corporation, UVW Corporation, and RST 
Corporation to be offsetting positions with respect to the options on 
the broad based stock index future. A reasonable person, on the basis of 
all the facts and circumstances, would not expect that stock in XYZ 
Corporation, UVW Corporation, or RST Corporation would be offsetting 
positions with respect to each other. If B makes the mixed straddle 
account election under this section for all such positions, B must 
designate three separate classes of activities: one consisting of stock 
in XYZ Corporation; one consisting of stock in UVW Corporation; and one 
consisting of stock in RST Corporation, and maintain three separate 
mixed straddle accounts. Options on the broad based stock index future 
must be designated as part of all three classes of activities and gains 
and losses from such options must be allocated among such accounts under 
a reasonable and consistent method that clearly reflects income, because 
such options are a type of position expected to be offsetting with 
respect to the positions in all three mixed straddle accounts.

    (4) Impermissible designations--(i) Types of positions that are not 
offsetting included in designated class of activities. If the 
Commissioner determines, on the basis of all the facts and 
circumstances, that a class of activities designated by a taxpayer 
includes types of positions that a reasonable person, on the basis of 
all the facts and circumstances, ordinarily would not expect to be 
offsetting positions with

[[Page 278]]

respect to other types of positions in the account, the Commissioner 
may--
    (A) Amend the class of activities designated by the taxpayer and 
remove positions from the account that are not within the amended 
designated class of activities; or
    (B) Amend the class of activities designated by the taxpayer to 
establish two or more mixed straddle accounts.
    (ii) Types of positions that are offsetting not included in 
designated class of activities. If the Commissioner determines, on the 
basis of all the facts and circumstances, that a designated class of 
activities does not include types of positions that are offsetting with 
respect to types of positions within the designated class, the 
Commissioner may--
    (A) Amend the class of activities designated by the taxpayer to 
include types of positions that are offsetting with respect to the types 
of positions within the designated class and place such positions in the 
account; or
    (B) Amend the class of activities designated by the taxpayer to 
exclude types of positions that are offsetting with respect to the types 
of positions that are not in the account.
    (iii) Treatment of positions removed from or included in the 
account. (A) Positions removed from a mixed straddle account will be 
subject to the rules of taxation generally applicable to such positions. 
Thus, for example, if the positions removed from the account are 
offsetting positions with respect to other positions outside the 
account, the rules of Sec. Sec.  1.1092(b)-1T and 1.1092(b)-2T apply.
    (B) If the taxpayer acted consistently and in good faith in 
designating the class of activities of the account and in placing 
positions in the account, the rules of Sec.  1.1092(b)-2T(b)(2) shall 
not apply to any mixed straddles resulting from the removal of such 
positions from the account and the Commissioner, at the Commissioner's 
discretion, may identify such mixed straddles as section 1092(b)(2) 
identified mixed straddles and apply the rules of Sec.  1.1092(b)-3T(b) 
to such straddles.
    (C) If positions are placed in a mixed straddle account, such 
positions shall be treated as if they were originally included in the 
mixed straddle account in which they are placed.
    (5) Positions included in a mixed straddle account that are not 
within the designated class of activities. The Commissioner may remove 
one or more positions from a mixed straddle account if, on the basis of 
all the facts and circumstances, the Commissioner determines that such 
positions are not within the designated class of activities of the 
account. See paragraph (b)(4)(iii) of this section for rules concerning 
the treatment of such positions.
    (6) Positions outside a mixed straddle account that are within the 
designated class of activities. If a taxpayer holds types of positions 
outside of a mixed straddle account (including positions in another 
mixed straddle account) that are within the designated class of 
activities of a mixed straddle account, the Commissioner may require the 
taxpayer to include such types of positions in the mixed straddle 
account, move positions from one account to another, or remove from the 
mixed straddle account types of positions that are offsetting with 
respect to the types of positions held outside the account. See 
paragraph (b)(4)(iii) of this section for the treatment of such 
positions.
    (c) Treatment of gains and losses from positions in a mixed straddle 
account--(1) Daily account net gain or loss. Except as provided in 
paragraphs (d) and (e) of this section (relating to positions in a mixed 
straddle account before January 1, 1985) as of the close of each 
business day of the taxable year, gain or loss shall be determined for 
each position in a mixed straddle account that is disposed of during the 
day. Positions in a mixed straddle account that have not been disposed 
of as of the close of the day shall be treated as if sold for their fair 
market value at the close of each business day. Gains and losses for 
each business day from non-section 1256 positions in each mixed straddle 
account shall be netted to determine net non-section 1256 position gain 
or loss for the account, and gains and losses for each business day from 
section 1256 contracts in each mixed straddle account shall be netted to 
determine net section 1256 contract gain or loss for the account. Net 
non-section 1256 position gain or loss from the account is then

[[Page 279]]

offset against net section 1256 contract gain or loss from the same 
mixed straddle account to determine the daily account net gain or loss 
for the account. If daily account net gain or loss is attributable to 
the net non-section 1256 position gain or loss, daily account net gain 
or loss for such account shall be treated as short-term capital gain or 
loss. If daily account net gain or loss is attributable to the net 
section 1256 contract gain or loss, daily account net gain or loss for 
such account shall be treated as 60 percent long-term capital gain or 
loss and 40 percent short-term capital gain or loss. If net non-section 
1256 position gain or loss and net section 1256 contract gain or loss 
are either both gains or both losses, that portion of the daily account 
net gain or loss attributable to net non-section 1256 position gain or 
loss shall be treated as short-term capital gain or loss and that 
portion of the daily account net gain or loss attributable to net 
section 1256 contract gain or loss shall be treated as 60 percent long-
term capital gain or loss and 40 percent short-term capital gain or 
loss. An adjustment (through an adjustment to basis or otherwise) shall 
be made to any subsequent gain or loss determined under this paragraph 
(c)(1) to take into account any gain or loss determined for prior 
business days under this paragraph (c)(1).
    (2) Annual account net gain or loss; total annual account net gain 
or loss. On the last business day of the taxable year, the annual 
account net gain or loss for each mixed straddle account established by 
the taxpayer shall be determined by netting the daily account net gain 
or loss for each business day in the taxable year for each account. 
Annual account net gain or loss for each mixed straddle account shall be 
adjusted pursuant to paragraph (c)(3) of this section. The total annual 
account net gain or loss shall be determined by netting the annual 
account net gain or loss for all mixed straddle accounts established by 
the taxpayer, as adjusted pursuant to paragraph (c)(3) of this section. 
Total annual account net gain or loss is subject to the limitations of 
paragraph (c)(4) of this section. See paragraphs (d) and (e) of this 
section for determining the annual account net gain or loss for mixed 
straddle accounts established for taxable years beginning before January 
1, 1985.
    (3) Application of section 263(g) to mixed straddle accounts. No 
deduction shall be allowed for interest and carrying charges (as defined 
in section 263(g)(2)) properly allocable to a mixed straddle account. 
Interest and carrying charges properly allocable to a mixed straddle 
account means the excess of--
    (i) The sum of--
    (A) Interest on indebtedness incurred or continued during the 
taxable year to purchase or carry any position in the account; and
    (B) All other amounts (including charges to insure, store or 
transport the personal property) paid or incurred to carry any position 
in the account; over
    (ii) The sum of--
    (A) The amount of interest (including original issue discount) 
includible in gross income for the taxable year with respect to all 
positions in the account;
    (B) Any amount treated as ordinary income under section 
1271(a)(3)(A), 1278, or 1281(a) with respect to any position in the 
account for the taxable year; and
    (C) The excess of any dividends includible in gross income with 
respect to positions in the account for the taxable year over the amount 
of any deduction allowable with respect to such dividends under section 
243, 244, or 245.

For purposes of paragraph (c)(3)(i) of this section, the term interest 
includes any amount paid or incurred in connection with positions in the 
account used in a short sale. Any interest and carrying charges 
disallowed under this paragraph (c)(3) shall be capitalized by treating 
such charges as an adjustment to the annual account net gain or loss and 
shall be allocated pro rata between net short-term capital gain or loss 
and net long-term capital gain or loss.
    (4) Limitation on total annual account net gain or loss. No more 
than 50 percent of total annual account net gain for the taxable year 
shall be treated as long-term capital gain. Any long-term capital gain 
in excess of the 50 percent limit shall be treated as short-term capital 
gain. No more than 40 percent of total annual account net loss for the 
taxable year shall be treated as short-

[[Page 280]]

term capital loss. Any short-term capital loss in excess of the 40 
percent limit shall be treated as long-term capital loss.
    (5) Accrued gain and loss with respect to positions includible in a 
mixed straddle account. Positions includable in a mixed straddle account 
that are held by a taxpayer on the day prior to the day the mixed 
straddle account is established shall be deemed sold for their fair 
market value as of the close of the last business day preceding the day 
such mixed straddle account is established. See Sec. Sec.  1.1092(b)-1T 
and 1.1092(b)-2T for application of the loss deferral and wash sale 
rules and for treatment of holding periods and losses with respect to 
such positions. An adjustment (through an adjustment to basis or 
otherwise) shall be made to any subsequent gain or loss realized with 
respect to such positions for any gain or loss recognized under this 
paragraph (c)(5).
    (6) Examples. This paragraph (c) may be illustrated by the following 
examples. It is assumed in each example that the positions are the only 
positions held directly or indirectly (through a related person or 
flowthrough entity) by an individual calendar year taxpayer during the 
taxable year, and that gain or loss from the positions is treated as 
gain or loss from a capital asset.

    Example 1. A establishes a mixed straddle account for a class of 
activities consisting of transactions in stock of XYZ Corporation and 
dealer equity options on XYZ Corporation stock. Assume that A enters 
into no transactions in XYZ Corporation stock or dealer equity options 
on XYZ Corporation stock prior to December 26, 1985. Thus, the net non-
section 1256 position gain or loss and the net section 1256 contract 
gain or loss for the account are zero for each business day except the 
following days:

------------------------------------------------------------------------
                                                           Net section
                                        Net non-section   1256 contract
                                         1256 position     gain or loss
                                          gain or loss         (XYZ
                                              (XYZ         corporation
                                          corporation     dealer equity
                                             stock)          options)
------------------------------------------------------------------------
December 26, 1985.....................         $1,000          $20,000
December 27, 1985.....................         (9,000)           3,000
December 30, 1985.....................         (5,000)          15,000
December 31, 1985.....................          7,000           (2,000)
------------------------------------------------------------------------

    The daily account net gain or loss is as follows:

----------------------------------------------------------------------------------------------------------------
                                   Daily account    Treatment of daily account net gain or     Long-     Short-
                                 net gain or loss                    loss                      term       term
----------------------------------------------------------------------------------------------------------------
December 26, 1985..............         $21,000    $1,000 short-term capital gain, $20,000    $12,000   $9,000
                                                    60 percent long-term capital gain and
                                                    40 percent short-term capital gain.
December 27, 1985..............          (6,000)   Short-term capital loss.................  ........   (6,000)
December 30, 1985..............          10,000    60 percent long-term capital gain and 40     6,000    4,000
                                                    percent short-term capital gain.
December 31, 1985..............           5,000    Short-term capital gain.................  ........    5,000
----------------------------------------------------------------------------------------------------------------


The annual account net gain or loss is $18,000 of long-term capital gain 
and $12,000 of short-term capital gain. Because A has no other mixed 
straddle accounts, total annual account net gain or loss is also $18,000 
long-term capital gain and $12,000 short-term capital gain. Because more 
than 50 percent of the total annual account net gain is long-term 
capital gain, $3,000 of the $18,000 long-term capital gain will be 
treated as short-term capital gain.
    Example 2. Assume the facts are the same as in example (1), except 
that interest and carrying charges in the amount of $6,000 are allocable 
to the mixed straddle account and are capitalized under paragraph (c)(3) 
of this section. Under these circumstances, $3,600 (($18,000/$30,000) x 
$6,000) of the interest and carrying charges will reduce the $18,000 
long-term capital gain to $14,400 long-term capital gain and $2,400 
(($12,000/$30,000) x $6,000) of the interest and carrying charges will 
reduce the $12,000 short-term capital gain to $9,600 short-term capital 
gain. Because more than 50 percent of the total annual account net gain 
is long-term capital gain, $2,400 of the $14,400 long-term capital gain 
will be treated as short-term capital gain.
    Example 3. Assume the facts are the same as in example (1), except 
that A has a second mixed straddle account, which has an annual account 
net loss of $14,000 of long-term capital loss and $6,000 of short-term 
capital loss. Under these circumstances, the total annual account net 
gain is $4,000 ($18,000-$14,000) of long-term capital gain and $6,000 
($12,000-$6,000) of short-term capital gain. Because not more than 50 
percent of the total annual account net gain is long-term capital gain, 
none of the long-term capital gain will be treated as short-term capital 
gain.
    Example 4. Assume the facts are the same as in example (3), except 
that interest and carrying charges in the amount of $4,000 are

[[Page 281]]

allocable to the second mixed straddle account and are capitalized under 
paragraph (c)(3) of this section. Under these circumstances, $2,800 
(($14,000/$20,000) x $4,000)) of the interest and carrying charges will 
increase the $14,000 long-term capital loss to $16,800 of long-term 
capital loss and $1,200 (($6,000/$20,000) x $4,000)) of the interest and 
carrying charges will increase the $6,000 short-term capital loss to 
$7,200 short-term capital loss. The total annual account net gain is 
$1,200 of long-term capital gain ($18,000 $16,800) and $4,800 ($12,000-
$7,200) of short-term capital gain. Because not more than 50 percent of 
the total annual account net gain is long-term capital gain, none of the 
$1,200 long-term capital gain will be treated as short-term capital 
gain.
    Example 5. Assume the facts are the same as in example (1), except 
that A has a second mixed straddle account, which has an annual account 
net loss of $20,000 of long-term capital loss and $15,000 of short-term 
capital loss. Under these circumstances, the total annual account net 
loss is $2,000 ($20,000-$18,000) of long-term capital loss and $3,000 
($15,000-$12,000) of short-term capital loss. Because more than 40 
percent of the total annual account net loss is short-term capital loss, 
$1,000 of the short-term capital loss will be treated as long-term 
capital loss.
    Example 6. A establishes two mixed straddle accounts. Account 1 has 
an annual account net gain of $5,000 short-term capital gain, which 
results from netting $5,000 of long-term capital loss and $10,000 of 
short-term capital gain. Account 2 has an annual account net loss of 
$2,000 long-term capital loss, which results from netting $3,000 of 
long-term capital loss against $1,000 of short-term capital gain. The 
total annual account net gain is $3,000 short-term capital gain, which 
results from netting the annual account net gain of $5,000 short-term 
capital gain from Account 1 against the annual account net loss of 
$2,000 long-term capital loss from Account 2.

    (d) Treatment of gains and losses from positions in a mixed straddle 
account established on or before December 31, 1984, in taxable years 
ending after December 31, 1984; pre-1985 account net gain or loss. For 
mixed straddle accounts established on or before December 31, 1984, in 
taxable years ending after December 31, 1984, the taxpayer on December 
31, 1984, shall determine gain or loss for each position in the mixed 
straddle account that has been disposed of on any day during the period 
beginning on the first day of the taxpayer's taxable year that includes 
December 31, 1984, and ending on December 31, 1984. Positions in the 
mixed straddle account that have not been disposed of as of the close of 
December 31, 1984, shall be treated as if sold for their fair market 
value as of the close of December 31, 1984. Gains and losses for such 
period from non-section 1256 positions in each mixed straddle account 
shall be netted to determine pre-1985 net non-section 1256 position gain 
or loss and gains and losses for such period from section 1256 contracts 
in each mixed straddle account shall be netted to determine pre-1985 net 
section 1256 contract gain or loss. Pre-1985 net non-section 1256 
position gain or loss is then offset against pre-1985 net section 1256 
contract gain or loss from the same mixed straddle account to determine 
the pre-1985 account net gain or loss for the period. If the pre-1985 
account net gain or loss is attributable to pre-1985 net non-section 
1256 position gain or loss, the pre-1985 account net gain or loss from 
such account shall be treated as short-term capital gain or loss. If the 
pre-1985 account net gain or loss is attributable to pre-1985 net 
section 1256 contract gain or loss, the pre-1985 account net gain or 
loss from such account shall be treated as 60 percent long-term capital 
gain or loss and 40 percent short-term capital gain or loss. If pre-1985 
net non-section 1256 position gain or loss and pre-1985 net section 1256 
contract gain or loss are either both gains or losses, that portion of 
the pre-1985 account net gain or loss attributable to pre-1985 net non-
section 1256 position gain or loss shall be treated as short-term 
capital gain or loss and that portion of the pre-1985 account net gain 
or loss attributable to pre-1985 net section 1256 contract gain or loss 
shall be treated as 60 percent long-term capital gain or loss and 40 
percent short-term capital gain or loss. An adjustment (through an 
adjustment to basis or otherwise) shall be made to any subsequent gain 
or loss realized with respect to such positions for any gain or loss 
recognized under this paragraph (d). To determine the annual account net 
gain or loss for such account, the pre-1985 account net gain or loss 
shall be treated as daily account net gain or loss for purposes of 
paragraph (c)(2) of this section. See paragraph (c)(5) of this section 
for treatment of

[[Page 282]]

accrued gain or loss with respect to positions includible in a mixed 
straddle account.
    (e) Treatment of gains and losses from positions in a mixed straddle 
account for taxable years ending on or before December 31, 1984--(1) In 
general. For mixed straddle accounts established on or before December 
31, 1984, in taxable years ending on or before December 31, 1984, the 
taxpayer at the close of the taxable year shall determine gain or loss 
for each position in the mixed straddle account that has been disposed 
of on any day during the period beginning on the later of the first day 
of the taxable year or January 1, 1984, and ending on the last day of 
the taxable year. Positions in the mixed straddle account that have not 
been disposed of as of the close of the last business day of the taxable 
year shall be treated as if sold for their fair market value at the 
close of such day. Gains and losses from non-section 1256 positions in 
each mixed straddle account shall be netted to determine 1984 net non-
section 1256 position gain or loss for the account and gains and losses 
from section 1256 contracts shall be netted to determine 1984 net 
section 1256 contract gain or loss for the account. The 1984 net non-
section 1256 position gain or loss is then offset against 1984 net 
section 1256 contract gain or loss from the same mixed straddle account 
to determine annual account net gain or loss for the account. If annual 
account net gain or loss is attributable to 1984 net non-section 1256 
position gain or loss, annual account net gain or loss shall be treated 
as short-term capital gain or loss. If annual account net gain or loss 
is attributable to 1984 net section 1256 contract gain or loss, annual 
account net gain or loss shall be treated as 60 percent long-term 
capital gain or loss and 40 percent short-term capital gain or loss. If 
1984 net non-section 1256 position gain or loss and 1984 net section 
1256 contract gain or loss are either both gains or both losses, that 
portion of annual account net gain or loss attributable to 1984 net non-
section 1256 position gain or loss shall be treated as short-term 
capital gain or loss and that portion of annual account net gain or loss 
attributable to 1984 net section 1256 contract gain or loss shall be 
treated as 60 percent long-term capital gain or loss and 40 percent 
short-term capital gain or loss. An adjustment (through an adjustment to 
basis or otherwise) shall be made to any subsequent gain or loss 
realized with respect to such positions for any gain or loss recognized 
under this paragraph (e). See paragraph (c) (2) through (5) of this 
section relating to determining the total annual account net gain or 
loss, application of section 263(g) to mixed straddle accounts, the 
limitation on the total annual account net gain or loss, and treatment 
of accrued gain or loss with respect to positions includible in a mixed 
straddle account.
    (2) Pre-1984 accrued gain. If the last business day referred to in 
paragraph (c)(5) of this section is contained in a period to which such 
paragraph (c)(5) does not apply, the gains and losses from the deemed 
sale shall be included in the first period to which paragraph (c)(5) 
applies.
    (f) Election--(1) Time for making the election. Except as otherwise 
provided, the election under this section to establish one or more mixed 
straddle accounts for a taxable year must be made by the due date 
(without regard to automatic and discretionary extensions) of the 
taxpayer's income tax return for the immediately preceding taxable year 
(or part thereof). For example, an individual taxpayer on a calendar 
year basis must make the election by April 15, 1986, to establish one or 
more mixed straddle accounts for taxable year 1986. Similarly, a 
calendar year corporate taxpayer must make its election by March 15, 
1986, to establish one or more mixed straddle accounts for 1986. If a 
taxpayer begins trading or investing in positions in a new class of 
activities during a taxable year, the election under this section with 
respect to the new class of activities must be made by the taxpayer by 
the later of the due date of the taxpayer's income tax return for the 
immediately preceding taxable year (without regard to automatic and 
discretionary extensions), or 60 days after the first mixed straddle in 
the new class of activities is entered into. Similarly, if on or after 
the date the election is made with respect to an account, the taxpayer 
begins trading or investing in positions

[[Page 283]]

that are includible in such account but were not specified in the 
original election, the taxpayer must make an amended election as 
prescribed in paragraph (f)(2)(ii) of this section by the later of the 
due date of the taxpayer's income tax return for the immediately 
preceding taxable year (without regard to automatic and discretionary 
extensions), or 60 days after the acquisition of the first of the 
positions. If an election is made after the times specified in this 
paragraph (f)(1), the election will be permitted only if the 
Commissioner concludes that the taxpayer had reasonable cause for 
failing to make a timely election. For example, if a calendar year 
taxpayer holds few positions in one class of activities prior to April 
15 of a taxable year, and the taxpayer greatly increases trading 
activity with respect to positions in the class of activities after 
April 15, then the Commissioner may conclude that the taxpayer had 
reasonable cause for failing to make a timely election and allow the 
taxpayer to make a mixed straddle account election for the taxable year. 
See paragraph (f)(2) of this section for rules relating to the manner 
for making these elections.
    (2) Manner for making the election--(i) In general. A taxpayer must 
make the election on Form 6781 in the manner prescribed by such Form, 
and by attaching the Form to the taxpayer's income tax return for the 
immediately preceding taxable year (or request for an automatic 
extension). In addition, the taxpayer must attach a statement to Form 
6781 designating with specificity the class of activities for which a 
mixed straddle account is established. The designation must describe the 
class of activities in sufficient detail so that the Commissioner may 
determine, on the basis of the designation, whether specific positions 
are includible in the mixed straddle account. In the case of a taxpayer 
who elects to establish more than one mixed straddle account, the 
Commissioner must be able to determine, on the basis of the 
designations, that specific positions are placed in the appropriate 
account. The election applies to all positions in the designated class 
of activities held by the taxpayer during the taxable year.
    (ii) Elections for new classes of activities and expanded elections. 
Amended elections and elections made with respect to a new class of 
activities that the taxpayer has begun trading or investing in during a 
taxable year, shall be made on Form 6781 within the times prescribed in 
paragraph (f)(1) of this section. A statement must be attached to the 
Form containing the information required in paragraph (f)(2)(i) of this 
section, with respect to the new or expanded designated class of 
activities.
    (iii) Special rule. The Commissioner may disregard a mixed straddle 
account election if the Commissioner determines, on the basis of all the 
facts and circumstances, that the principal purpose for making the mixed 
straddle account election with respect to a class of activities was to 
avoid the rules of Sec.  1.1092(b)-1T (a). For example, if a taxpayer 
holds stock that is not part of a straddle and that would generate a 
loss if sold or otherwise disposed of, and the taxpayer both acquires 
offsetting option positions with respect to the stock and makes a mixed 
straddle account election with respect to the stock and stock options 
near the end of a taxable year, the Commissioner may disregard the mixed 
straddle account election.
    (3) Special rule for taxable years ending after 1983 and before 
September 1, 1986. An election under this section to establish one or 
more mixed straddle accounts for any taxable year that includes July 17, 
1984, and any taxable year that ends before September 1, 1986 (or, in 
the case of a corporation, October 1, 1986), must be made by the later 
of--
    (i) December 31, 1985, or
    (ii) The due date (without regard to automatic and discretionary 
extensions) of the return for the taxpayer's taxable year that begins in 
1984 if the due date of the taxpayer's return for such year (without 
regard to automatic and discretionary extensions) is after December 31, 
1985.

The election shall be made by attaching Form 6781 together with a 
statement to the taxpayer's income tax return, amended return, or other 
appropriate form that is filed on or before the deadline determined in 
the preceding sentence. The attached statement must designate with 
specificity,

[[Page 284]]

in accordance with paragraph (f)(2)(i) of this section, the class of 
activities for which a mixed straddle account is established. For 
example, if a fiscal year taxpayer's return (for its taxable year ending 
September 30, 1985) is due (without regard to extensions) on January 15, 
1986, and the taxpayer intends to obtain an automatic extension to file 
the return, the election under this section for any or all of the fiscal 
years ending in 1984, 1985 or 1986 must be made on or before January 15, 
1986, with the request for an automatic extension. Similarly, a calendar 
year taxpayer (whether or not such taxpayer has obtained an automatic 
extension of time to file) who has filed its 1984 income tax return 
before October 15, 1985, without making a mixed straddle account 
election for either 1984 or 1985, or both, may make the mixed straddle 
account election under this section for either or for both of such years 
with an amended return filed on or before December 31, 1985. The mixed 
straddle account elected on this amended return will be effective for 
all positions in the designated class of activities even if the taxpayer 
had elected straddle-by-straddle identification as provided under Sec.  
1.1092(b)-3T for purposes of the previously filed 1984 income tax 
return. For taxable years beginning in 1984 and 1985, the election under 
this paragraph (f)(3) is effective for the entire taxable year. For 
taxable years beginning in 1983, an election shall be effective for that 
part of the year beginning after December 31, 1983, for which the 
election under Sec.  1.1256(h)-1T or 1.1256(h)-2T is made. See Sec.  
1.6081-1T regarding an extension of time to file certain individual 
income tax returns.
    (4) Period for which election is effective. For taxable years 
beginning on or after January 1, 1984, an election under this section, 
including an amendment to the election pursuant to paragraph (f)(1) of 
this section, shall be effective only for the taxable year for which the 
election is made. This election may be revoked during the taxable year 
for the remainder of the taxable year only with the consent of the 
Commissioner. An application for consent to revoke the election shall be 
filed with the service center with which the election was filed and 
shall--
    (i) Contain the name, address, and taxpayer identification number of 
the taxpayer;
    (ii) Show that the volume or nature of the taxpayer's activities has 
changed substantially since the election was made, and that the 
taxpayer's activities no longer warrant the use of such mixed straddle 
account; and
    (iii) Any other relevant information.

If a taxpayer's election for a taxable year is revoked, the taxpayer may 
not make a new election for the same class of activities under paragraph 
(f)(1) of this section during the same taxable year.
    (g) Effective date. The provisions of this section apply to 
positions held on or after January 1, 1984.

(Secs. 1092(b)(1), 1092(b)(2) and 7805 of the Internal Revenue Code of 
1954 (68A Stat. 917, 98 Stat. 627; 26 U.S.C. 1092(b)(1), 1092(b)(2), 
7805))

[T.D. 8008, 50 FR 3329, Jan. 24, 1985; 50 FR 12243, Mar. 28, 1985, as 
amended by T.D. 8058, 50 FR 42013, Oct. 17, 1985]



Sec.  1.1092(b)-5T  Definitions (temporary).

    The following definitions apply for purposes of Sec. Sec.  
1.1092(b)-1T through 1.1092(b)-4T.
    (a) Disposing, disposes, or disposed. The term disposing, disposes, 
or disposed includes the sale, exchange, cancellation, lapse, 
expiration, or other termination of a right or obligation with respect 
to personal property (as defined in section 1092(d)(1)).
    (b) Hedging transaction. The term hedging transaction means a 
hedging transaction as defined in section 1256(e).
    (c) Identified straddle. The term identified straddle means an 
identified straddle as defined in section 1092(a)(2)(B).
    (d) Loss. The term loss means a loss otherwise allowable under 
section 165(a) (without regard to the limitation contained in section 
165(f)) and includes a write-down in inventory.
    (e) Mixed straddle. The term mixed straddle means a straddle--
    (1) All of the positions of which are held as capital assets;
    (2) At least one (but not all) of the positions of which is a 
section 1256 contract;
    (3) For which an election under section 1256(d) has not been made; 
and

[[Page 285]]

    (4) Which is not part of a larger straddle.
    (f) Non-section 1256 position. The term non-section 1256 position 
means a position that is not a section 1256 contract.
    (g) Offsetting position. The term offsetting position means an 
offsetting position as defined in section 1092(c)(2).
    (h) Position. The term position means a position as defined in 
section 1092(d)(2).
    (i) [Reserved]
    (j) Related person or flowthrough entity. The term related person or 
flowthrough entity means a related person or flowthrough entity as 
defined in sections 1092(d)(4) (B) and (C) respectively.
    (k) Section 1256 contract. The term section 1256 contract means a 
section 1256 contract as defined in section 1256(b).
    (l) [Reserved]
    (m) Straddle. The term straddle means a straddle as defined in 
section 1092(c)(1).
    (n) Successor position. The term successor position means a position 
(``P'') that is or was at any time offsetting to a second position if--
    (1) The second position was offsetting to any loss position disposed 
of; and
    (2) P is entered into during a period commencing 30 days prior to, 
and ending 30 days after, the disposition of the loss position referred 
to in paragraph (n)(1) of this section.
    (o) Unrecognized gain. The term unrecognized gain means unrecognized 
gain as defined in section 1092(a)(3)(A).
    (p) Substantially identical. The term substantially identical has 
the same meaning as substantially identical in section 1091(a).
    (q) Securities. The term security means a security as defined in 
section 1236(c).

(Secs. 1092(b) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
917, 95 Stat. 324, 26 U.S.C. 1092(b), 7805) and sec. 102(h) of the Tax 
Reform Act of 1984 (98 Stat. 625))

[T.D. 8007, 50 FR 3321, Jan. 24, 1985, as amended by T.D. 8070, 51 FR 
1788, Jan. 15, 1986]



Sec.  1.1092(b)-6  Mixed straddles; accrued gain and loss associated with 
a position that becomes part of a section 1092(b)(2) identified mixed straddle 
that is established after August 18, 2014.

    (a) Treatment of unrealized gain or loss that arose before a 
position becomes part of an identified mixed straddle. Except as 
otherwise provided, if one or more positions of a straddle that is an 
identified mixed straddle described in section 1092(b)(2)(A)(i)(I) 
(identified mixed straddle) were held by the taxpayer on the day prior 
to the day the identified mixed straddle is established, any unrealized 
gain or loss on the day prior to the day the identified mixed straddle 
is established with respect to such position or positions is taken into 
account at the time, and has the character, provided by the provisions 
of the Internal Revenue Code that would apply to the gain or loss if the 
identified mixed straddle were not established. Thus, if a non-section 
1256 capital asset was held for the long-term capital gain holding 
period before the identified mixed straddle was established, any 
unrealized gain or loss on that asset on the day prior to the day the 
identified mixed straddle was established will be long-term capital gain 
or loss when that asset is sold or otherwise disposed of in a taxable 
transaction. Unrealized gain or loss on a section 1256 contract that 
accrued prior to the day the contract became part of an identified mixed 
straddle will be recognized no later than the last business day of the 
taxpayer's taxable year. For each position, unrealized gain or loss is 
the difference between the fair market value of the position at the 
close of the day before the day the identified mixed straddle is 
established and the taxpayer's basis in that position. See Sec.  
1.1092(b)-2T and paragraph (b) of this section for the treatment of 
holding periods with respect to such positions. Changes in value of the 
position or positions that occur on or after the identified mixed 
straddle is established are accounted for under the provisions of Sec.  
1.1092(b)-3T (other than Sec.  1.1092(b)-3T(b)(6)). The definitions in 
Sec.  1.1092(b)-5T apply for purposes of this section.
    (b) Holding period after a position becomes part of an identified 
mixed straddle.

[[Page 286]]

Section 1.1092(b)-2T(a)(1) applies to any position that becomes part of 
an identified mixed straddle, and the long-term or short-term character 
of any gain or loss on that position that arises on or after the day the 
position has become a position in an identified mixed straddle will be 
determined by beginning the taxpayer's holding period on the day after 
the identified mixed straddle ceases to exist.
    (c) Application of the loss deferral rules of section 1092(a). When 
applying section 1092(a) and Sec.  1.1092(b)-3T(b) (other than Sec.  
1.1092(b)-3T(b)(6)) to any loss that arises while a position is part of 
an identified mixed straddle, the amount of unrecognized gain includes 
both unrecognized gains described in paragraph (a) of this section that 
accrued prior to the day the identified mixed straddle is established 
and unrecognized gains that arise on or after the day the identified 
mixed straddle identification was made for the position.
    (d) Examples. The rules of this section may be illustrated by the 
following examples. It is assumed in each example that the positions 
described are the only positions held directly or indirectly (through a 
related person or flowthrough entity) by an individual calendar year 
taxpayer during the taxable year, and no successor positions are 
acquired or entered into. It is also assumed that gain or loss 
recognized on any position in the straddle would be capital gain or 
loss. The following examples assume that the identified mixed straddle 
is established after the applicability date of this section.

    Example 1. (i) Facts. On January 13, Year 1, A enters into a section 
1256 contract. As of the close of the day on January 15, Year 1, there 
is $500 of unrealized loss on the section 1256 contract. On January 16, 
Year 1, A enters into an offsetting non-section 1256 position and makes 
a valid election to treat the straddle as an identified mixed straddle. 
A continues to hold both positions of the identified mixed straddle on 
January 1, Year 2, and there are no further changes to the value of 
either position in Year 1.
    (ii) Analysis. On the last business day of Year 1, A recognizes the 
$500 loss on the section 1256 contract that accrued prior to 
establishing the identified mixed straddle because the section 1256 
contract is treated as sold on December 31, Year 1 (the last business 
day of the taxable year) under section 1256(a). The loss recognized in 
Year 1 will be treated as 60% long-term capital loss and 40% short-term 
capital loss. All gains and losses that arise on or after the identified 
mixed straddle is established are accounted for under the rules of 
Sec. Sec.  1.1092(b)-2T (and paragraph (b) of this section), 1.1092(b)-
3T(b) (other than Sec.  1.1092(b)-3T(b)(6)), and paragraph (c) of this 
section.
    Example 2. (i) Facts. On December 3, Year 1, A purchases a non-
section 1256 position for $100. As of the close of the day on January 
22, Year 2, the non-section 1256 position has a fair market value of 
$500. On January 23, Year 2, A enters into an offsetting section 1256 
contract and makes a valid election to treat the straddle as an 
identified mixed straddle. On February 10, Year 2, A closes out the 
section 1256 contract at a $500 loss and disposes of the non-section 
1256 position for $975.
    (ii) Analysis of pre-straddle gain. A has $400 of unrealized short-
term capital gain attributable to the non-section 1256 position prior to 
the day the identified mixed straddle was established. This $400 gain is 
recognized on February 10, Year 2, when the non-section 1256 position is 
disposed of. Under paragraph (a) of this section, the gain is short-term 
capital gain because that would have been the character of the gain if 
the non-section 1256 position had been disposed of on the day prior to 
establishing the identified mixed straddle.
    (iii) Analysis of straddle gain and loss. On February 10, Year 2, 
the gain of $475 ($975 proceeds minus $500 fair market value on the day 
prior to entering into the identified mixed straddle) on the non-section 
1256 position attributable to the identified mixed straddle period is 
offset by the $500 loss on the section 1256 contract. The net loss of 
$25 from the identified mixed straddle is recognized and treated as 60% 
long-term capital loss and 40% short-term capital loss because it is 
attributable to the section 1256 contract. See Sec.  1.1092(b)-3T(b)(4).
    Example 3. (i) Facts. On January 3, Year 1, A purchases 100 shares 
of Index Fund for $1,000 ($10 per share). The Index Fund shares are 
actively traded personal property and are not section 1256 contracts. As 
of the close of the day on June 24, Year 2, the fair market value of 100 
shares of Index Fund is $1,200. On June 25, Year 2, A enters into a 
short regulated futures contract (Futures Contract) referenced to the 
same index referenced by Index Fund. Futures Contract is a section 1256 
contract and A makes a valid election to treat the shares of Index Fund 
and Futures Contract as an identified mixed straddle. On December 31, 
Year 2, the fair market value of A's shares of Index Fund is $1,520 and 
Futures Contract has lost $300. On January 10, Year 3, A closes out 
Futures Contract at a loss of $400 when the fair market value of 100 
shares of Index Fund is $1,590. On November

[[Page 287]]

20, Year 3, A disposes of all 100 shares of Index Fund for $1,600.
    (ii) Year 2 analysis. On June 24, Year 2, A has held the Index Fund 
shares for longer than the long-term holding period, and the $200 of 
unrecognized gain on the Index Fund shares as of June 24, Year 2, will 
be characterized as long-term gain under paragraph (a) of this section 
when the gain is recognized. On December 31, Year 2, Futures Contract is 
marked to market under section 1256(a)(1). Under paragraph (a) of this 
section and Sec.  1.1092(b)-3T(b)(4), the loss on Futures Contract of 
$300 is netted with the $320 unrecognized gain on the Index Fund shares 
that arose while the identified mixed straddle was in place. Because 
this unrecognized gain is greater than the deemed realized section 1256 
loss, the loss on Futures Contract is treated as a short-term capital 
loss. The loss, however, will be disallowed in Year 2 under paragraph 
(c) of this section and the loss deferral rules of section 1092(a) 
because the unrecognized gain in the Index Fund shares that arose while 
the identified mixed straddle was in place exceeds the deemed realized 
loss. Even if this gain were only $250 on December 31, Year 2, the 
deemed realized loss on Futures Contract would be disallowed because 
there is $200 of unrecognized gain in the Index Fund shares from the 
time A held the shares prior to establishing the identified mixed 
straddle.
    (iii) Year 3 analysis. When A closes out the Futures Contract on 
January 10, Year 3, the entire amount of the section 1256 $300 loss that 
was disallowed on December 31, Year 2, continues to be deferred under 
paragraph (c) of this section. On November 20, Year 3, A recognizes $200 
long-term capital gain from the pre-identified mixed straddle period, 
and $400 short-term capital gain, $390 of which arose during the 
identified mixed straddle period and $10 of which arose after the 
identified mixed straddle was closed. See Sec.  1.1092(b)-2T(a)(1) and 
paragraph (b) of this section. In Year 3, A recognizes the $300 short-
term capital loss from Futures Contract disallowed in Year 2 and the 
$100 loss accrued on Futures Contract in Year 3 because A no longer 
holds any positions that were part of an identified mixed straddle.
    Example 4. (i) Facts. On March 1, Year 1, A purchases a 10-year U.S. 
Treasury Note (Note) at original issue for $100, which is the stated 
redemption price at maturity of Note. As of the close of the day on 
March 1, Year 3, Note has a fair market value of $105. On March 2, Year 
3, A enters into a regulated futures contract (Futures Contract) that 
provides A with a short position in U.S. Treasury Notes and A makes a 
valid election to treat Note and Futures Contract as an identified mixed 
straddle. A closes her position in Futures Contract on April 15, Year 3, 
at a $2 loss. On April 15, Year 3, Note has a fair market value of $108. 
On December 31, Year 3, Note has a fair market value of $106. A holds 
Note until it matures on February 28, Year 10.
    (ii) Year 3 analysis. A has $5 of unrealized gain attributable to 
Note prior to the day the identified mixed straddle was established. 
Because A acquired a long-term holding period in Note by March 1, Year 
3, the $5 of gain will be characterized as long-term capital gain under 
paragraph (a) of this section when it is recognized. Under Sec.  
1.1092(b)-3T(b)(4), when A closes out Futures Contract on April 15, Year 
3, the loss of $2 on Futures Contract is netted with the gain of $3 on 
Note that arose while the identified mixed straddle was in place. 
Because this gain on Note exceeds the realized loss on Futures Contract, 
the loss on Futures Contract is disallowed in Year 3 under paragraph (c) 
of this section. Further, under paragraph (c) of this section and 
section 1092(a)(1), on December 31, Year 3, the disallowed loss of $2 on 
Futures Contract cannot be recognized because it is less than the total 
unrecognized gain of $6 on Note on December 31, Year 3.
    (iii) Year 10 analysis. When Note matures in Year 10, the $5 of 
unrecognized long-term capital gain that arose prior to the identified 
mixed straddle is recognized. Because A receives $100 upon the maturity 
of Note, A also recognizes a $5 long-term capital loss on Note, for a 
net gain of $0 (zero). In addition, the termination of all positions in 
the identified mixed straddle releases the $2 loss disallowed in Year 3 
on Futures Contract. The loss on Futures Contract is treated as short-
term capital loss in Year 10 under Sec.  1.1092(b)-3T(b)(4).

    (e) Effective/applicability date. The rules of this section apply to 
all section 1092(b)(2) identified mixed straddles established after 
August 18, 2014.

[T.D. 9678, 79 FR 41888, July 18, 2014]



Sec.  1.1092(c)-1  Qualified covered calls.

    (a) In general. Section 1092(c) defines a straddle as offsetting 
positions with respect to personal property. Under section 
1092(d)(3)(B)(i)(I), stock is personal property if the stock is part of 
a straddle that involves an option on that stock or substantially 
identical stock or securities. Under section 1092(c)(4), however, 
writing a qualified covered call option and owning the optioned stock is 
not treated as a straddle under section 1092 if certain conditions, 
described in section 1092(c)(4)(B), are satisfied. Section 1092(c)(4)(H) 
authorizes the Secretary to modify these conditions to carry out

[[Page 288]]

the purposes of section 1092(c)(4) in light of changes in the 
marketplace.
    (b) Term limitation--(1) General rule. Except as provided in 
paragraph (b)(2) of this section, an option is not a qualified covered 
call unless it is granted not more than 12 months before the day on 
which the option expires or satisfies term limitation and qualified 
benchmark requirements established by the Commissioner in guidance 
published in the Internal Revenue Bulletin (see Sec.  
601.601(d)(2)(ii)(b) of this chapter).
    (2) Special benchmark rule for an option granted not more than 33 
months before the day on which the option expires--(i) In general. The 
12-month limitation described in paragraph (b)(1) of this section is 
extended to 33 months provided the lowest qualified benchmark is 
determined using the adjusted applicable stock price, as defined in 
Sec.  1.1092(c)-4(e).
    (ii) Examples. The following examples illustrate the rules set out 
in paragraph (b)(2)(i) of this section:

    Example 1. Taxpayer owns stock in Corporation X. Taxpayer writes an 
equity option with standardized terms on Corporation X stock through a 
national securities exchange with a term of 21 months. The applicable 
stock price for Corporation X stock is $100. The bench marks for a 21-
month equity option with standardized terms with an applicable stock 
price of $100 will be based upon the adjusted applicable stock price. 
Using the table at Sec.  1.1092(c)-4(e), the applicable stock price of 
$100 is multiplied by the adjustment factor 1.12, resulting in an 
adjusted applicable stock price of $112. Using the bench marks for an 
equity option with standardized terms with an adjusted applicable stock 
price of $112, the highest available strike price less than the adjusted 
applicable stock price is $110, and the second highest strike price less 
than the adjusted applicable stock price is $105. Therefore, a 21-month 
equity call option with standardized terms on Corporation X stock will 
not be deep in the money if the strike price is not less than $105.
    Example 2. Taxpayer owns stock in Corporation Y. Taxpayer writes an 
equity option with standardized terms on Corporation Y stock through a 
national securities exchange with a term of 21 months. The applicable 
stock price for Corporation Y stock is $13.25. The bench marks for a 21-
month equity option with standardized terms with an applicable stock 
price of $13.25 will be based upon the adjusted applicable stock price. 
Using the table at Sec.  1.1092(c)-4(e), the applicable stock price of 
$13.25 is multiplied by the adjustment factor 1.12, resulting in an 
adjusted applicable stock price of $14.84. Using the bench marks for an 
equity option with standardized terms with an adjusted applicable stock 
price of $14.84, the highest available strike price less than the 
adjusted applicable stock price is $12.50. However, under section 
1092(c)(4)(D), the lowest qualified bench mark can be no lower than 85% 
of the applicable stock price, which for Corporation Y stock is $12.61 
(85% of the adjusted applicable stock price of $14.84). Thus, because 
the highest available strike price less than the adjusted applicable 
stock price for an equity option with standardized terms is lower than 
the lowest qualified bench mark under section 1092(c)(4)(D), the lowest 
strike price at which a qualified covered call option can be written is 
the next higher strike price, or $15.00. Therefore, a 21-month equity 
call option with standardized terms on Corporation Y stock will not be 
deep in the money if the strike price is not less than $15.

    (c) Effective date. This section applies to qualified covered call 
options entered into on or after July 29, 2002.

[67 FR 20899, Apr. 29, 2002]



Sec.  1.1092(c)-2  Equity options with flexible terms.

    (a) In general. Section 1092(c)(4) provides an exception to the 
general rule that a straddle exists if a taxpayer holds stock and writes 
a call option on that stock. Under section 1092(c)(4), the ownership of 
stock and the issuance of a call option meeting certain requirements 
result in a qualified covered call, which is exempted from the general 
straddle rules of section 1092. This section addresses the consequences 
of the availability of equity options with flexible terms under the 
qualified covered call rules.
    (b) No effect on lowest qualified bench mark for standardized 
options. The availability of strike prices for equity options with 
flexible terms does not affect the determination of the lowest qualified 
bench mark, as defined in section 1092(c)(4)(D), for an equity option 
with standardized terms.
    (c) Qualified covered call option status--(1) Requirements. An 
equity option with flexible terms is a qualified covered call option 
only if--
    (i) The option meets the requirements of section 1092(c)(4)(B) and 
Sec.  1.1092(c)-1 (taking into account paragraph (c)(2) of this 
section);

[[Page 289]]

    (ii) The only payments permitted with respect to the option are a 
single fixed premium paid not later than 5 business days after the day 
on which the option is granted, and a single fixed strike price, as 
defined in Sec.  1.1092(c)-4(d), that is payable entirely at (or within 
5 business days of) exercise;
    (iii) An equity option with standardized terms is outstanding for 
the underlying equity; and
    (iv) The underlying security is stock in a single corporation.
    (2) Lowest qualified bench mark--(i) In general. For purposes of 
determining whether an equity option with flexible terms is deep in the 
money within the meaning of section 1092(c)(4)(C), the lowest qualified 
bench mark under section 1092(c)(4)(D) is the same for an equity option 
with flexible terms as the lowest qualified bench mark for an equity 
option with standardized terms on the same stock having the same 
applicable stock price.
    (ii) Examples. The following examples illustrate the rules set out 
in paragraph (c)(2)(i) of this section:

    Example 1. Taxpayer owns stock in Corporation X. Taxpayer writes an 
equity call option with flexible terms on Corporation X stock through a 
national securities exchange for a term of not more than 12 months. The 
applicable stock price for Corporation X stock is $73.75. Using the 
bench marks for an equity option with standardized terms with an 
applicable stock price of $73.75, the highest available strike price 
less than the applicable stock price is $70, and the second highest 
strike price less than the applicable stock price is $65. Therefore, an 
equity call option with flexible terms on Corporation X stock with a 
term of 90 days or less will not be deep in the money if the strike 
price is not less than $70. If the term is greater than 90 days, an 
equity call option with flexible terms on Corporation X will not be deep 
in the money if the strike price is not less than $65.
    Example 2. Taxpayer owns stock in Corporation Y. Taxpayer writes a 
9-month equity call option with flexible terms on Corporation Y stock 
through a national securities exchange. The applicable stock price for 
Corporation Y stock is $14.75. Using the bench marks for an equity 
option with standardized terms with an applicable stock price of $14.75, 
the highest available strike price less than the applicable stock price 
is $12.50. However, under section 1092(c)(4)(D), the lowest qualified 
bench mark can be no lower than 85% of the applicable stock price, which 
for Corporation Y stock is $12.54. Thus, because the highest available 
strike price less than the applicable stock price for an equity option 
with standardized terms is lower than the lowest qualified bench mark 
under section 1092(c)(4)(D), the lowest strike price at which a 
qualified covered call option can be written is the next higher strike 
price, or $15.00. This $15.00 strike price requirement for a qualified 
covered call option applies to equity options with flexible terms, 
equity options with standardized terms, and qualifying over-the-counter 
options.
    Example 3. Taxpayer owns stock in Corporation Z. On May 8, 2003, 
Taxpayer writes a 21-month equity call option with flexible terms on 
Corporation Z stock through a national securities exchange. The 
applicable stock price for Corporation Z stock is $100. The bench marks 
for a 21-month equity option with standardized terms with an applicable 
stock price of $100 will be based upon the adjusted applicable stock 
price. Using the table at Sec.  1.1092(c)-4(e), the applicable stock 
price of $100 is multiplied by the adjustment factor 1.12, resulting in 
an adjusted applicable stock price of $112. The highest available strike 
price less than the adjusted applicable stock price is $110, and the 
second highest strike price less than the adjusted applicable stock 
price is $105. Therefore, a 21-month equity call option with flexible 
terms on Corporation Z stock will not be deep in the money if the strike 
price is not less than $105.

    (d) Effective date--(1) In general. Except as provided in paragraph 
(d)(2) of this section, this section applies to equity options with 
flexible terms entered into on or after January 25, 2000.
    (2) Effective date for paragraphs (b) and (c) of this section. 
Paragraphs (b) and (c) of this section apply to equity options with 
flexible terms entered into on or after July 29, 2002.

[T.D. 8866, 65 FR 3813, Jan. 25, 2000; Redesignated at 67 FR 20899, Apr. 
29, 2002]



Sec.  1.1092(c)-3  Qualifying over-the-counter options.

    (a) In general. Under section 1092(c)(4)(B)(i), an equity option is 
not a qualified covered call option unless it is traded on a national 
securities exchange that is registered with the Securities and Exchange 
Commission or other market that the Secretary determines has rules 
adequate to carry out the purposes of section 1092(c)(4). In accordance 
with section 1092(c)(4)(H), this requirement is modified as provided in 
paragraph (b) of this section.

[[Page 290]]

    (b) Qualified covered call option status. A qualifying over-the-
counter option, as defined in Sec.  1.1092(c)-4(c), is a qualified 
covered call option if it meets the requirements of Sec. Sec.  
1.1092(c)-1 and 1.1092(c)-2(c) after using the language ``qualifying 
over-the-counter option'' in place of ``equity option with flexible 
terms''. For purposes of this paragraph (b), a qualifying over-the-
counter option is deemed to satisfy the requirements of section 
1092(c)(4)(B)(i).
    (c) Effective date. This section applies to qualifying over-the-
counter options entered into on or after July 29, 2002.

[67 FR 20900, Apr. 29, 2002]



Sec.  1.1092(c)-4  Definitions.

    The following definitions apply for purposes of Sec. Sec.  
1.1092(c)-1 through 1.1092(c)-3:
    (a) Equity option with flexible terms means an equity option--
    (1) That is described in any of the following Securities Exchange 
Act Releases--
    (i) Self-Regulatory Organizations; Order Approving Proposed Rule 
Changes and Notice of Filing and Order Granting Accelerated Approval of 
Amendments by the Chicago Board Options Exchange, Inc. and the Pacific 
Stock Exchange, Inc., Relating to the Listing of Flexible Equity Options 
on Specified Equity Securities, Securities Exchange Act Release No. 34-
36841 (Feb. 21, 1996); or
    (ii) Self-Regulatory Organizations; Order Approving Proposed Rule 
Changes and Notice of Filing and Order Granting Accelerated Approval of 
Amendment Nos. 2 and 3 to the Proposed Rule Change by the American Stock 
Exchange, Inc., Relating to the Listing of Flexible Equity Options on 
Specified Equity Securities, Securities Exchange Act Release No. 34-
37336 (June 27, 1996); or
    (iii) Self-Regulatory Organizations; Order Approving Proposed Rule 
Change and Notice of Filing and Order Granting Accelerated Approval of 
Amendment Nos. 2, 4 and 5 to the Proposed Rule Change by the 
Philadelphia Stock Exchange, Inc., Relating to the Listing of Flexible 
Exchange Traded Equity and Index Options, Securities Exchange Act 
Release No. 34-39549 (Jan. 23, 1998); or
    (iv) Any changes to the Security Exchange Act Releases described in 
paragraphs (a)(1)(i) through (iii) of this section that are approved by 
the Securities and Exchange Commission; or
    (2) That is traded on any national securities exchange that is 
registered with the Securities and Exchange Commission (other than those 
described in the Security Exchange Act Releases set forth in paragraph 
(a)(1) of this section) and is--
    (i) Substantially identical to the equity options described in 
paragraph (a)(1) of this section; and
    (b) Equity option with standardized terms means an equity option--
    (1) That is traded on a national securities exchange registered with 
the Securities and Exchange Commission;
    (2) That, on the date the option is written, expires on the Saturday 
following the third Friday of the month of expiration;
    (3) That has a strike price that is set at a uniform minimum strike 
price interval, that is established by the applicable national 
securities exchange registered with the Securities and Exchange 
Commission, and that is not less than $1.00; and
    (4) That has stock in a single corporation as its underlying 
security.
    (c) Qualifying over-the-counter option means an equity option that--
    (1) Is not traded on a national securities exchange registered with 
the Securities and Exchange Commission; and
    (2) Is entered into with--
    (i) A broker-dealer, acting as principal or agent, who is registered 
with the Securities and Exchange Commission under section 15 of the 
Securities Act of 1934 (15 U.S.C. 78a through 78mm) and the regulations 
thereunder and who must comply with the recordkeeping requirements of 17 
CFR 240.17a-3; or
    (ii) An alternative trading system under 17 CFR 242.300 through 17 
CFR 242.303; or
    (iii) A person, acting as principal or agent, who must comply with 
the recordkeeping requirements for securities transactions described in 
12 CFR 12.3, 12 CFR 208.34, or 12 CFR 344.4.
    (d) Single fixed strike price means a strike price that is fixed, 
determinable, and stated as a dollar amount on the

[[Page 291]]

date the option is written. An option will not fail to have a single 
fixed strike price if, after the date the option is written, the strike 
price is adjusted to account for the effects of a dividend, stock 
dividend, stock distribution, stock split, reverse stock split, rights 
offering, distribution, reorganization, recapitalization, or 
reclassification with respect to the underlying security, or a merger, 
consolidation, dissolution, or liquidation of the issuer of the 
underlying security.
    (e) Adjusted applicable stock price means the applicable stock 
price, as defined in section 1092(c)(4)(G), adjusted for time. To 
determine the adjusted applicable stock price, the applicable stock 
price, which is determined in accordance with the rules in section 
1092(c)(4)(G), is multiplied by an adjustment factor. The adjustment 
factor table is as follows:

------------------------------------------------------------------------
                  Option term (in months)
------------------------------------------------------------  Adjustment
            Greater than                  Not more than         factor
------------------------------------------------------------------------
12.................................  15....................         1.08
15.................................  18....................         1.10
18.................................  21....................         1.12
21.................................  24....................         1.14
24.................................  27....................         1.16
27.................................  30....................         1.18
30.................................  33....................         1.20
------------------------------------------------------------------------

    (f) Securities Exchange Act Release means a release issued by the 
Securities and Exchange Commission. To determine identifying information 
for releases referenced in paragraph (d)(1) of this section, including 
release titles, identification numbers, and issue dates, contact the 
Office of the Secretary, Securities and Exchange Commission, 450 5th 
Street, NW., Washington, DC 20549. To obtain a copy of a Securities 
Exchange Act Release, submit a written request, including the specific 
release identification number, title, and issue date, to Securities and 
Exchange Commission, Attention Public Reference, 450 5th Street, NW., 
Washington, DC 20549.
    (g) Effective dates. (1) Except for paragraph (a)(2) of this 
section, paragraph (a) of this section applies to equity options with 
flexible terms entered into on or after January 25, 2000. Paragraph 
(a)(2) of this section applies to equity options with flexible terms 
entered into on or after July 29, 2002.
    (2) Paragraphs (b), (c), (d), and (e) of this section apply to 
equity options entered into on or after July 29, 2002.
    (3) Paragraph (f) of this section applies to equity options entered 
into on or after January 25, 2000.

[67 FR 20900, 20901, Apr. 29, 2002]



Sec.  1.1092(d)-1  Definitions and special rules.

    (a) Actively traded. Actively traded personal property includes any 
personal property for which there is an established financial market.
    (b) Established financial market--(1) In general. For purposes of 
this section, an established financial market includes--
    (i) A national securities exchange that is registered under section 
6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f);
    (ii) An interdealer quotation system sponsored by a national 
securities association registered under section 15A of the Securities 
Exchange Act of 1934;
    (iii) A domestic board of trade designated as a contract market by 
the Commodities Futures Trading Commission;
    (iv) A foreign securities exchange or board of trade that satisfies 
analogous regulatory requirements under the law of the jurisdiction in 
which it is organized (such as the London International Financial 
Futures Exchange, the Marche a Terme International de France, the 
International Stock Exchange of the United Kingdom and the Republic of 
Ireland, Limited, the Frankfurt Stock Exchange, and the Tokyo Stock 
Exchange);
    (v) An interbank market;
    (vi) An interdealer market (as defined in paragraph (b)(2)(i) of 
this section); and
    (vii) Solely with respect to a debt instrument, a debt market (as 
defined in paragraph (b)(2)(ii) of this section).
    (2) Definitions--(i) Interdealer market. An interdealer market is 
characterized by a system of general circulation (including a computer 
listing disseminated to subscribing brokers, dealers, or traders) that 
provides a reasonable basis to determine fair market value by 
disseminating either recent price quotations (including rates, yields, 
or other pricing information) of one or more identified brokers, 
dealers, or

[[Page 292]]

traders or actual prices (including rates, yields, or other pricing 
information) of recent transactions. An interdealer market does not 
include a directory or listing of brokers, dealers, or traders for 
specific contracts (such as yellow sheets) that provides neither price 
quotations nor actual prices of recent transactions.
    (ii) Debt market. A debt market exists with respect to a debt 
instrument if price quotations for the instrument are readily available 
from brokers, dealers, or traders. A debt market does not exist with 
respect to a debt instrument if--
    (A) No other outstanding debt instrument of the issuer (or of any 
person who guarantees the debt instrument) is traded on an established 
financial market described in paragraph (b)(1)(i), (ii), (iii), (iv), 
(v), or (vi) of this section (other traded debt);
    (B) The original stated principal amount of the issue that includes 
the debt instrument does not exceed $25 million;
    (C) The conditions and covenants relating to the issuer's 
performance with respect to the debt instrument are materially less 
restrictive than the conditions and covenants included in all of the 
issuer's other traded debt (e.g., the debt instrument is subject to an 
economically significant subordination provision whereas the issuer's 
other traded debt is senior); or
    (D) The maturity date of the debt instrument is more than 3 years 
after the latest maturity date of the issuer's other traded debt.
    (c) Notional principal contracts. For purposes of section 1092(d)--
    (1) A notional principal contract (as defined in Sec.  1.446-
3(c)(1)) constitutes personal property of a type that is actively traded 
if contracts based on the same or substantially similar specified 
indices are purchased, sold, or entered into on an established financial 
market within the meaning of paragraph (b) of this section; and
    (2) The rights and obligations of a party to a notional principal 
contract are rights and obligations with respect to personal property 
and constitute an interest in personal property.
    (d) Debt instrument linked to the value of personal property. If a 
taxpayer is the obligor under a debt instrument one or more payments on 
which are linked to the value of personal property or a position with 
respect to personal property, then the taxpayer's obligation under the 
debt instrument is a position with respect to personal property and may 
be part of a straddle.
    (e) Effective/applicability dates--(1) Paragraphs (a) and (b) of 
this section apply to positions entered into on or after October 14, 
1993.
    (2) Paragraph (c) of this section applies to positions entered into 
on or after July 8, 1991.
    (3) Paragraph (d) of this section applies to straddles established 
on or after January 17, 2001.

[T.D. 8491, 58 FR 53135, Oct. 14, 1993, as amended by T.D. 9635, 78 FR 
54569, Sept. 5, 2013; T.D. 9691, 79 FR 51091, Aug. 27, 2014]



Sec.  1.1092(d)-2  Personal property.

    (a) Special rules for stock. Under section 1092(d)(3)(B), personal 
property includes any stock that is part of a straddle, at least one of 
the offsetting positions of which is a position with respect to 
substantially similar or related property (other than stock). For 
purposes of this rule, the term substantially similar or related 
property is defined in Sec.  1.246-5 (other than Sec.  1.246-5(b)(3)). 
The rule in Sec.  1.246-5(c)(6) does not narrow the related party rule 
in section 1092(d)(4).
    (b) Effective date--(1) In general. This section applies to 
positions established on or after March 17, 1995.
    (2) Special rule for certain straddles. This section applies to 
positions established after March 1, 1984, if the taxpayer substantially 
diminished its risk of loss by holding substantially similar or related 
property involving the following types of transactions--
    (i) Holding offsetting positions consisting of stock and a 
convertible debenture of the same corporation where the price movements 
of the two positions are related; or
    (ii) Holding a short position in a stock index regulated futures 
contract (or alternatively an option on such a regulated futures 
contract or an option on the stock index) and stock in an investment 
company whose principal holdings mimic the performance of the stocks 
included in the stock index (or

[[Page 293]]

alternatively a portfolio of stocks whose performance mimics the 
performance of the stocks included in the stock index).

[T.D. 8590, 60 FR 14641, Mar. 20, 1995]

                        capital gains and losses

                       Treatment of Capital Gains



Sec.  1.1201-1  Alternative tax.

    (a) Corporations--(1) In general. (i) If for any taxable year a 
corporation has net capital gain (net section 1201 gain for taxable 
years beginning before January 1, 1977) (as defined in section 1222(11)) 
section 1201(a) imposes an alternative tax in lieu of the tax imposed by 
sections 11 and 511, but only if such alternative tax is less than the 
tax imposed by sections 11 and 511. The alternative tax is not in lieu 
of the personal holding company tax imposed by section 541 or of any 
other tax not specifically set forth in section 1201(a).
    (ii) In the case of an insurance company, the alternative tax 
imposed by section 1201(a) is also in lieu of the tax imposed by 
sections 821 (a) or (c) and 831 (a), except that for taxable years 
beginning before January 1, 1963, the reference to section 821 (a) or 
(c) is to be read as reference to section 821 (a)(1) or (b). For taxable 
years beginning after December 31, 1954, and before January 1, 1958, the 
alternative tax imposed by section 1201(a) shall also be in lieu of the 
tax imposed by section 802(a), as amended by the Life Insurance Company 
Tax Act for 1955 (70 Stat. 38), if such alternative tax is less than the 
tax imposed by such section. See section 802(e), as added by the Life 
Insurance Company Tax Act for 1955 (70 Stat. 39). However, for taxable 
years beginning after December 31, 1958, and before January 1, 1962, 
section 802(a)(2), as amended by the Life Insurance Company Income Tax 
Act of 1959 (73 Stat. 115), imposes a separate tax equal to 25 percent 
of the amount by which the net long-term capital gain of any life 
insurance company (as defined in section 801(a) and paragraph (b) of 
Sec.  1.801-3) exceeds its net short-term capital loss. See paragraph 
(f) of Sec.  1.802-3. For alternative tax for life insurance companies 
in the case of taxable years beginning after December 31, 1961, see 
section 802(a)(2) and the regulations thereunder.
    (iii) See section 56 and the regulations thereunder for provisions 
relating to the minimum tax for tax preferences.
    (2) Alternative tax. The alternative tax is the sum of:
    (i) A partial tax computed at the rates provided in sections 11, 
511, 821 (a) or (c), and 831(a), on the taxable income of the taxpayer 
reduced by the amount of the net capital gain (net section 1201 gain for 
taxable years beginning before January 1, 1977), and
    (ii) An amount equal to the tax determined under subparagraph (3) of 
this paragraph.

For taxable years beginning after December 31, 1954, and before January 
1, 1958, the partial tax under subdivision (i) of this subparagraph 
shall also be computed at the rates provided in section 802(a). For 
taxable years beginning before January 1, 1963, the reference in such 
subdivision to section 821 (a) or (c) is to be read as a reference to 
section 821 (a) or (b).
    (3) Tax on capital gains. For purposes of subparagraph (2)(ii) of 
this paragraph, the tax shall be:
    (i) In the case of a taxable year beginning after December 31, 1974, 
a tax of 30 percent of the net section 1201 gain (net capital gain for 
taxable years beginning after December 31, 1976),
    (ii) In the case of a taxable year beginning after December 31, 
1969, and before January 1, 1975:
    (a) A tax of 25 percent of the lesser of the amount of the 
subsection (d) gain (as defined in section 1201(d) and paragraph (f) of 
this section) or the amount of the net section 1201 gain (net capital 
gain for taxable years beginning after December 31, 1976), plus
    (b) A tax of 30 percent (28 percent in the case of a taxable year 
beginning after December 31, 1969, and before January 1, 1971) of the 
excess, if any, of the net section 1201 gain (net capital gain for 
taxable years beginning after December 31, 1976) over the subsection (d) 
gain,
    (iii) In the case of a taxable year beginning before January 1, 
1970, and after March 31, 1954, a tax of 25 percent of the net section 
1201 gain (net capital

[[Page 294]]

gain for taxable years beginning after December 31, 1976), or
    (iv) In the case of a taxable year beginning before April 1, 1954, a 
tax of 26 percent of the net section 1201 gain (net capital gain for 
taxable years beginning after December 31, 1976).
    (4) Determination of special deductions. In the computation of the 
partial tax described in subparagraph (2)(i) of this paragraph the 
special deductions provided for in sections 243, 244, 245, 247, 922, and 
941 shall not be recomputed as the result of the reduction of taxable 
income by the net capital gain (net section 1201 gain for taxable years 
beginning before January 1, 1977).
    (b) Other taxpayers--(1) In general. If for any taxable year a 
taxpayer (other than a corporation) has net capital gain (net section 
1201 gain for taxable years beginning before January 1, 1977) (as 
defined in section 1222(11)) section 1201(b) imposes an alternative tax 
in lieu of the tax imposed by sections 1 and 511, but only if such 
alternative tax is less than the tax imposed by sections 1 and 511. The 
alternative tax is not in lieu of any other tax not specifically set 
forth in section 1201(b). See section 56 and the regulations thereunder 
for provisions relating to the minimum tax for tax preferences.
    (2) Alternative tax. The alternative tax is the sum of:
    (i) A partial tax computed at the rates provided by sections 1 and 
511 on the taxable income reduced by an amount equal to 50 percent of 
the net capital gain (net section 1201 gain for taxable years beginning 
before January 1, 1977), and
    (ii) In the case of a taxable year beginning after December 31, 
1969:
    (a) A tax of 25 percent of the lesser of the amount of the 
subsection (d) gain (as defined in section 1201(d) and paragraph (f) of 
this section) or the amount of the net capital gain (net section 1201 
gain for taxable years beginning before January 1, 1977), plus
    (b) A tax computed as provided in section 1201(c) and paragraph (e) 
of this section on the excess, if any, of the net capital gain (net 
section 1201 gain for taxable years beginning before January 1, 1977) 
over the subsection (d) gain, or
    (iii) In the case of a taxable year beginning before January 1, 
1970, a tax of 25 percent of the net section 1201 gain (net capital gain 
for taxable years beginning after December 31, 1976).
    (3) Cross references. See Sec.  1.1-2(a) for rule relating to the 
computation of the limitation on tax in cases where the alternative tax 
is imposed. See Sec.  1.34-2 (a) for rule relating to the computation of 
the dividend received credit under section 34 (for dividends received on 
or before December 31, 1964), and Sec.  1.35-1 (a) for rule relating to 
the computation of credit for partially tax-exempt interest under 
section 35 in cases where the alternative tax is imposed.
    (c) Tax-exempt trusts and organizations. In applying section 1201 in 
the case of tax-exempt trusts or organizations subject to the tax 
imposed by section 511, the only amount which is taken into account as 
capital gain or loss is that which is taken into account in computing 
unrelated business taxable income under section 512. Under section 512, 
the only amount taken into account as capital gain or loss is that 
resulting from the application of section 631(a), relating to the 
election to treat the cutting of timber as a sale or exchange.
    (d) Joint returns. In the case of a joint return, the excess of any 
net long-term capital gain over any net short-term capital loss is to be 
determined by combining the long-term capital gains and losses and the 
short-term capital gains and losses of the spouses.
    (e) Computation of tax on capital gain in excess of subsection (d) 
gain--(1) In general. The tax computed for purposes of section 
1201(b)(3) and paragraph (b) (2)(ii)(b) of this section shall be the 
amount by which a tax determined under section 1 or 511 on an amount 
equal to the taxable income (but not less than 50 percent of the net 
capital gain (net section 1201 gain for taxable years beginning before 
January 1, 1977)) for the taxable year exceeds a tax determined under 
section 1 or 511 on an amount equal to the sum of (i) the amount subject 
to tax under section 1201 (b)(1) and paragraph (b)(2)(i) of this section 
for such year plus (ii) an amount equal to 50 percent of the subsection 
(d) gain for such year.
    (2) Limitation. Notwithstanding subparagraph (1) of this paragraph, 
the tax computed for purposes of section

[[Page 295]]

1201(b) (3) and paragraph (b)(2)(ii)(b) of this section shall not exceed 
an amount equal to the following percentage of the excess of the net 
capital gain (net section 1201 gain for taxable years beginning before 
January 1, 1977) over the subsection (d) gain for the taxable year:
    (i) 29\1/2\ percent, in the case of a taxable year beginning after 
December 31, 1969, and before January 1, 1971, or
    (ii) 32\1/2\ percent, in the case of a taxable year beginning after 
December 31, 1970, and before January 1, 1972.
    (f) Definition of subsection (d) gain--(1) In general. For purposes 
of section 1201 and this section, the term subsection (d) gain means the 
sum of the long-term capital gains for the taxable year arising:
    (i) In the case of amounts received or accrued, as the case may be, 
before January 1, 1975 (other than any gain from a transaction described 
in section 631 or 1235), from:
    (a) Sales or other dispositions on or before October 9, 1969, 
including sales or other dispositions the income from which is returned 
as provided in section 453 (a)(1) or (b)(1), or
    (b) Sales or other dispostions after October 9, 1969, pursuant to 
binding contracts entered into on or before that date, including sales 
or other dispositions the income from which is returned as provided in 
section 453 (a)(1) or (b)(1),
    (ii) From liquidating distributions made by a corporation which are 
made (a) before October 10, 1970, and (b) pursuant to a plan of complete 
liquidation adopted on or before October 9, 1969, or
    (iii) In the case of a taxpayer (other than a corporation), from any 
other source not described in subdivision (i) or (ii) of this 
subparagraph, but the amount taken into account from such other sources 
shall be limited to the amount, if any, by which $50,000 ($25,000 in the 
case of a married individual filing a separate return) exceeds the sum 
of the gains to which subdivisions (i) and (ii) of this subparagraph 
apply.
    (2) Special rules. For purposes of subparagraph (1) of this 
paragraph:
    (i) A binding contract entered into on or before October 9, 1969, 
means a contract, whether written or unwritten, which on or before that 
date was legally enforceable against the taxpayer under applicable law. 
If on or before October 9, 1969, a taxpayer grants an irrevocable option 
or irrevocable contractual right to another party to buy certain 
property and such other party exercises that option or right after 
October 9, 1969, the sale of such property is a sale pursuant to a 
binding contract entered into on or before October 9, 1969. The 
application of this subdivision may be illustrated by the following 
example:

    Example: During 1964, A, B, and C formed a closely held corporation, 
and A was appointed as president of the organization. On July 1, 1964, A 
received for consideration 100 shares of common stock in the corporation 
subject to the agreement that, if A should retire from the management of 
the corporation or die, A or his estate would first offer his shares of 
stock to the corporation for purchase and that, if the corporation did 
not buy the stock within 60 days, the stock could be sold to any party 
other than the corporation. On September 1, 1970, A retired from the 
management of the corporation and offered his shares to the corporation 
for purchase. Pursuant to the agreement, the corporation purchased A's 
stock on September 30, 1970. A's sale of such stock was pursuant to a 
binding contract entered into on or before October 9, 1969.

    (ii) A contract which pursuant to subdivision (i) of this 
subparagraph constitutes a binding contract entered into on or before 
October 9, 1969, does not cease to qualify as such a contract by reason 
of the fact that after October 9, 1969, there is a modification of the 
terms of the contract such as a change in the time of performance, or in 
the amount of the debt or in the terms and mode of payment, or in the 
rate of interest, or there is a change in the form or nature of the 
obligation or the character of the security, so long as the taxpayer is 
at all times on and after October 9, 1969, legally bound by such 
contract. The application of this subdivision may be illustrated by the 
following examples:

    Example 1. On August 1, 1969, A sold certain capital assets to B on 
the installment plan and elected to return the gain therefrom under 
section 453, the agreement providing for payments over a period of 2 
years. At the time of the sale these assets had been held by A for more 
than 6 months. On July 31, 1970, A and B agreed to a modification of the 
terms of payment under the sales agreement,

[[Page 296]]

the only change in the contract being that the installment payments due 
after July 31, 1970, would be paid over a 3-year period. For purposes of 
this paragraph the payments received by A after July 31, 1970, are 
considered amounts received from the sale on August 1, 1969. (See 
section 483 for rules with respect to interest on deferred payments.)
    Example 2. On April 1, 1969, A sold certain capital assets to B on 
the installment plan and elected to return the gain therefrom under 
section 453, the agreement providing for payments over a period of 3 
years. At the time of the sale these assets had been held by A for more 
than 6 months. On March 31, 1970, C assumed B's obligation to pay the 
balance of the installments which were due after that date. For purposes 
of this paragraph any installment payments received by A after March 31, 
1970, from C are considered amounts received from a sale made on or 
before October 9, 1969.
    Example 3. On May 1, 1969, A offers to sell certain capital assets 
to B if B accepts the offer within 1 year, unless it is previously 
withdrawn by A. B accepts the offer on November 1, 1969, and the 
transaction is consummated shortly thereafter. For purposes of this 
paragraph, any payment received by A pursuant to the sale is not 
considered an amount received from a sale made on or before October 9, 
1969, or from a sale pursuant to a binding contract entered into on or 
before that date.

    (iii) An amount which is considered under section 402(a)(2) or 
403(a)(2) as gain of the taxpayer from the sale or exchange of a capital 
asset held for more than 6 months shall be treated as gain subject to 
the provisions of section 1201 (d)(1) and subdivision (i) of such 
subparagraph, but only if on or before October 9, 1969, (a) the employee 
with respect to whom such amount is distributed or paid, died or was 
otherwise separated from the service, and (b) the terms of the plan 
required, or the employee elected, that total distributions or amounts 
payable be paid to the taxpayer within 1 taxable year.
    (iv) Gain described in section 1201(d) (1) or (2) with respect to a 
partnership, estate, or trust, which is required to be included in the 
gross income of a partner in such partnership, or of a beneficiary of 
such estate or trust, shall be treated as such gain with respect to such 
partner or beneficiary. Thus, for example, if during 1974 a partnership 
which uses the calendar year as its taxable year receives amounts which 
give rise to section 1201(d)(1) gain, a partner who uses the fiscal year 
ending June 30 as his taxable year shall treat his distributive share of 
such gain as subsection (d) gain for his taxable year ending June 30, 
1975, even though such share is distributed to him after December 31, 
1974. See Sec.  1.706-1.
    (v) An individual shall be considered married for purposes of 
subdivision (iii) of such subparagraph if for the taxable year he may 
elect with his spouse to make a joint return under section 6013(a).
    (vi) In applying such subparagraph for purposes of section 21(a) (1) 
long-term capital gains arising from amounts received before January 1, 
1970, shall be taken into account if such amounts are received during 
the taxable year.
    (g) Illustrations. The application of this section may be 
illustrated by the following examples in which the assumption is made 
that section 56 (relating to minimum tax for tax preferences) does not 
apply:

    Example 1. A, a single individual, has for the calendar year 1954 
taxable income (exclusive of capital gains and losses) of $99,400. He 
realizes in 1954 a gain of $50,000 on the sale of a capital asset held 
for 19 months and sustains a loss of $20,000 on the sale of a capital 
asset held for 5 months. He had no other capital gains or losses. Since 
the alternative tax is less than the tax otherwise computed under 
section 1, the tax payable is the alternative tax, that is $74,298. The 
tax is computed as follows:

                           Tax Under Section 1
Taxable income exclusive of capital gains and losses.........    $99,400
Net long-term capital gain (100 percent of            $50,000
 $50,000).........................................
Net short-term capital loss (100 percent of            20,000
 $20,000).........................................
                                                   -----------
Excess of net long-term capital gain over the net short-term      30,000
 capital loss................................................
                                                   ------------
                                                                 129,400
Deduction of 50 percent of excess of net long-term capital        15,000
 gain over the net short-term capital loss (section 1202)....
                                                   ------------
Taxable income...............................................    114,400
                                                   ------------
Tax under section 1..........................................     80,136
                  Alternative Tax Under Section 1201(b)
Taxable income...............................................   $114,400
Less 50 percent of excess of net long-term capital gain over      15,000
 net short-term capital loss (section 1201(b)(1))............
                                                   ------------
Taxable income exclusive of capital gains and losses.........     99,400
                                                   ============
Partial tax (tax on $99,400).................................     66,798

[[Page 297]]

 
Plus 25 percent of $30,000...................................      7,500
                                                   ------------
Alternative tax under section 1201(b)........................     74,298
 

    Example 2. A husband and wife, who file a joint return for the 
calendar year 1970, have taxable income (exclusive of capital gains and 
losses) of $100,000. In 1970 they realize $200,000 of net long-term 
capital gain in excess of net short-term capital loss, including long-
term capital gains of $100,000 arising from sales consummated in 1968 
the income from which is returned on the installment method under 
section 453, and long-term capital gains of $50,000, arising in respect 
of distributions from X corporation made before October 10, 1970, which 
were pursuant to a plan of complete liquidation adopted on October 9, 
1969. Since the alternative tax under section 1201(b) is less than the 
tax otherwise computed under section 1, the tax payable for 1970 is the 
alternative tax, that is, $97,430 plus the tax surcharge under section 
51. The tax (without regard to the tax surcharge) is computed as 
follows:

                           Tax Under Section 1
Taxable income exclusive of capital gains and losses.........   $100,000
Net section 1201 gain (net capital gain for taxable years        200,000
 beginning after December 31, 1976) (excess of net long-term
 capital gain over the net short-term capital loss)..........
                                                   ------------
    Total....................................................    300,000
Deduction of 50 percent of net section 1201 (net capital gain    100,000
 for taxable years beginning after December 31, 1976) gain
 (section 1202)..............................................
                                                   ------------
    Taxable income...........................................    200,000
                                                   ============
Tax under section 1..........................................    110,980
                  Alternative Tax Under Section 1201(b)
(1) Net section 1201 gain (net capital gain for taxable years   $200,000
 beginning after December 31, 1976)..........................
                                                   ------------
(2) Subsection (d) gain:
  Section 1201(d)(1).........................................    100,000
  Section 1201(d)(2).........................................     50,000
                                                   ------------
    Total subsection (d) gain................................    150,000
                                                   ============
(3) Net section 1201 (net capital gain for taxable years          50,000
 beginning after December 31, 1976) gain in excess of
 subsection (d) gain ($200,000 less $150,000)................
                                                   ------------
(4) Tax under section 1201(b)(1):
  (i) Taxable income..............................   $200,000
  (ii) Less: 50% of item (1)......................    100,000
                                                   ------------
  (iii) Amount subject to tax under section           100,000
   1201(b)(1).....................................
                                                   ===========
    Partial tax (computed under section 1)...................     45,180
(5) Tax under section 1201(b)(2): (25% of item (1) or of item     37,500
 (2), whichever is lesser [25% of $150,000]).................
(6) Tax under section 1201(b)(3) on item (3):
  Tax under section 1 on taxable income ($200,000)   $110,980
  Less: Tax under section 1 on sum of item             93,780
   (4)(iii)(c) ($100,000) plus 50% of item (2)
   ($75,000) (Total $175,000).....................
                                                   -----------
    Tax under section 1201(c)(1)..................     17,200
                                                   -----------
  Limitation under section........................
    1201(c)(2)(A) (29\1/2\% of item (3))..........     14,750     14,750
(7) Alternative tax under section 1201(b)....................     97,430
 

    Example 3. A husband and wife, who file a joint return for the 
calendar year 1971, have taxable income (exclusive of capital gains and 
losses) of $80,000. In 1971 they realize long-term capital gain of 
$30,000 arising from a sale consummated on July 1, 1969, the income from 
which is returned on the installment method under section 453. From 
securities transactions in 1971 they have long-term capital gains of 
60,000 and a short-term capital loss of $10,000. Since the alternative 
tax under section 1201(b) is less than the tax otherwise computed under 
section 1, the tax payable is the alternative tax, that is, $55,140. The 
tax is computed as follows:

                           Tax Under Section 1
Taxable income exclusive of capital gains and losses.........    $80,000
Net long-term capital gains (100% of $90,000).....    $90,000
  Net short-term capital loss (100% of $10,000)...     10,000
                                                   -----------
  Net section 1201 gain (net capital gain for taxable years       80,000
   beginning after December 31, 1976)........................
                                                   ------------
    Total....................................................    160,000
Deduction of 50% of net section 1201 gain (net capital gain       40,000
 for taxable years beginning after December 31, 1976)
 (section 1202)..............................................
                                                   ------------
    Taxable income...........................................    120,000
                                                   ============
Tax under section 1..........................................     57,580
                  Alternative Tax Under Section 1201(b)
(1) Net section 1201 gain (net capital gain for taxable years    $80,000
 beginning after December 31, 1976)..........................
                                                   ------------
(2) Subsection (d) gain:
  Section 1201(d)(1).........................................     30,000
  Section 1201(d)(2).........................................
  Section 1201(d)(3) ($50,000 less $30,000)..................     20,000
                                                   ------------
    Total subsection (d) gain................................     50,000
                                                   ============
(3) Net section 1201 (net capital gain for taxable years          30,000
 beginning after December 31, 1976) gain in excess of
 subsection (d) gain ($80,000 less $50,000)..................
                                                   ------------
(4) Tax under section 1201(b)(1):
  (i) Taxable income..............................   $120,000
  (ii) Less: 50% of item (1)......................     40,000
                                                   -----------
  (iii) Amount subject to tax under section            80,000
   1201(b)(1).....................................
                                                   ===========
    Partial tax (computed under section 1)...................     33,340
(5) Tax under section 1201(b)(2): (25% of item (1) or of item     12,500
 (2), whichever is lesser [25% of $50,000])..................

[[Page 298]]

 
(6) Tax under section 1201 (b)(3) on item (3):
  Tax under section 1 on taxable income ($120,000)    $57,580
Less: Tax under sec. 1 on sum of item (4) (iii)       $48,280
 ($80,000) plus 50% of item (2) ($25,000) (Total
 $105,000)........................................
                                                   -----------
    Tax under section 1201(c)(1)..................      9,300
                                                   ===========
    Limitation under section 1201(c) (2)(B) (32\1/      9,750     $9,300
     2\% of item (3)).............................
                                                   ---------------------
(7) Alternative tax under section 1201(b)....................     55,140
 

    Example 4. A husband and wife, who file a joint return for the 
calendar year 1973, have taxable income (exclusive of capital gains and 
losses) of $250,000. In 1973 they realize long-term capital gains (not 
described in section 1201(d) (1) or (2)) of $140,000 and a short-term 
capital loss of $50,000. Since the alternative tax under section 1201(b) 
is less than the tax otherwise computed under section 1, the tax payable 
is the alternative tax, that is, $172,480. The tax is computed as 
follows:

                           Tax Under Section 1
Taxable income exclusive of capital gains and losses.........   $250,000
Net long-term capital gains (100% of $140,000)....   $140,000
Net short-term capital loss (100% of $50,000).....     50,000
                                                   -----------
Net section 1201 gain (net capital gain for taxable years         90,000
 beginning after December 31, 1976)..........................
                                                   ------------
    Total....................................................    340,000
Deduction of 50% of net section 1201 gain (net capital gain       45,000
 for taxable years beginning after December 31, 1976)
 (section 1202)..............................................
                                                   ------------
    Taxable income...........................................    295,000
                                                   ============
Tax under section 1..........................................    177,480
                  Alternative Tax Under Section 1201(b)
(1) Net section 1201 gain (net capital gain for taxable years    $90,000
 beginning after December 31, 1976)..........................
                                                   ------------
(2) Subsection (d) gain:
  Section 1201(d)(1).........................................  .........
  Section 1201(d)(2).........................................  .........
  Section 1201(d)(3).........................................     50,000
                                                   ------------
    Total subsection (d) gain................................     50,000
                                                   ============
(3) Net section 1201 gain (net capital gain for taxable years     40,000
 beginning after December 31, 1976) in excess of subsection
 (d) gain ($90,000 less $50,000).............................
                                                   ------------
(4) Tax under section 1201(b)(1):
  (i) Taxable income..............................   $295,000
  (ii) Less: 50% of item (1)......................     45,000
                                                   -----------
  (iii) Amount subject to tax under section           250,000
   1201(b)(1).....................................
                                                   -----------
    Partial tax (computed under section 1)...................    145,980
(5) Tax under section 1201(b)(2): (25% of item (1) or of item    $12,500
 (2), whichever is lesser [25% of $50,000])..................
(6) Tax under section 1201(b)(3) on item (3):
  Tax under section 1 on taxable income ($295,000)   $177,480
  Less: Tax under section 1 on sum of item (4)        163,480     14,000
   (iii) ($250,000) plus 50% of item (2) ($25,000)
   (Total $275,000)...............................
(7) Alternative tax under section 1201(b)....................    172,480
 


[T.D. 7337, 39 FR 44975, Dec. 30, 1974, as amended by T.D. 7728, 45 FR 
72651, Nov. 3, 1980]



Sec.  1.1202-0  Table of contents.

    This section lists the major captions that appear in the regulations 
under Sec.  1.1202-2.

  Sec.  1.1202-2 Qualified small business stock; effect of redemptions.

    (a) Redemptions from taxpayer or related person.
    (1) In general.
    (2) De minimis amount.
    (b) Significant redemptions.
    (1) In general.
    (2) De minimis amount.
    (c) Transfers by shareholders in connection with the performance of 
services not treated as purchases.
    (d) Exceptions for termination of services, death, disability or 
mental incompetency, or divorce.
    (1) Termination of services.
    (2) Death.
    (3) Disability or mental incompetency.
    (4) Divorce.
    (e) Effective date.

[T.D. 8749, 62 FR 68166, Dec. 31, 1997]



Sec.  1.1202-1  Deduction for capital gains.

    (a) In computing gross income, adjusted gross income, taxable 
income, capital gain net income (net capital gain for taxable years 
beginning before January 1, 1977) and net capital loss, 100 percent of 
any gain or loss (computed under section 1001, recognized under section 
1002, and taken into account without regard to subchapter P (section 
1201 and following), chapter 1 of the Code) upon the sale or exchange of 
a capital asset shall be taken into account regardless of the period for 
which the capital asset has been held. Nevertheless, the net short-term 
capital gain or loss and the net long-term capital gain or loss must be 
separately computed. In computing the adjusted gross income or the 
taxable income of a taxpayer other than a corporation, if for any 
taxable year the net long-term capital gain exceeds the net short-term

[[Page 299]]

capital loss, 50 percent of the amount of the excess is allowable as a 
deduction from gross income under section 1202.
    (b) For the purpose of computing the deduction allowable under 
section 1202 in the case of an estate or trust, any long-term or short-
term capital gains which, under sections 652 and 662, are includible in 
the gross income of its income beneficiaries as gains derived from the 
sale or exchange of capital assets must be excluded in determining 
whether, for the taxable year of the estate or trust, its net long-term 
capital gain exceeds its net short-term capital loss. To determine the 
extent to which such gains are includible in the gross income of a 
beneficiary, see the regulations under sections 652 and 662. For 
example, during 1954 a trust realized a gain of $1,000 upon the sale of 
stock held for 10 months. Under the terms of the trust instrument all of 
such gain must be distributed during the taxable year to A, the sole 
income beneficiary. Assuming that under section 652 or 662 A must 
include all of such gain in his gross income, the trust is not entitled 
to any deduction with respect to such gain under section 1202. Assuming 
A had no other capital gains or losses for 1954, he would be entitled to 
a deduction of $500 under section 1202. For purposes of this section, an 
income beneficiary shall be any beneficiary to whom an amount is 
required to be distributed, or is paid or credited, which is includible 
in his gross income.
    (c) The provisions of this section may be illustrated by the 
following example:

    Example: A, an individual, had the following transactions in 1954:

Long-term capital gain............................     $6,000
Long-term capital loss............................      4,000
                                                   -----------
Net long-term capital gain........................  .........     $2,000
Short-term capital loss...........................      1,800
Short-term capital gain...........................        300
                                                   ===========
Net short-term capital loss..................................      1,500
                                                   ------------
Excess of net long-term capital gain over net short-term             500
 capital loss................................................
 


Since the net long-term capital gain exceeds the net short-term capital 
loss by $500, 50 percent of the excess, or $250, is allowable as a 
deduction under section 1202.

[T.D. 6500, 25 FR 12001, Nov. 26, 1960, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]



Sec.  1.1202-2  Qualified small business stock; effect of redemptions.

    (a) Redemptions from taxpayer or related person--(1) In general. 
Stock acquired by a taxpayer is not qualified small business stock if, 
in one or more purchases during the 4-year period beginning on the date 
2 years before the issuance of the stock, the issuing corporation 
purchases (directly or indirectly) more than a de minimis amount of its 
stock from the taxpayer or from a person related (within the meaning of 
section 267(b) or 707(b)) to the taxpayer.
    (2) De minimis amount. For purposes of this paragraph (a), stock 
acquired from the taxpayer or a related person exceeds a de minimis 
amount only if the aggregate amount paid for the stock exceeds $10,000 
and more than 2 percent of the stock held by the taxpayer and related 
persons is acquired. The following rules apply for purposes of 
determining whether the 2-percent limit is exceeded. The percentage of 
stock acquired in any single purchase is determined by dividing the 
stock's value (as of the time of purchase) by the value (as of the time 
of purchase) of all stock held (directly or indirectly) by the taxpayer 
and related persons immediately before the purchase. The percentage of 
stock acquired in multiple purchases is the sum of the percentages 
determined for each separate purchase.
    (b) Significant redemptions--(1) In general. Stock is not qualified 
small business stock if, in one or more purchases during the 2-year 
period beginning on the date 1 year before the issuance of the stock, 
the issuing corporation purchases more than a de minimis amount of its 
stock and the purchased stock has an aggregate value (as of the time of 
the respective purchases) exceeding 5 percent of the aggregate value of 
all of the issuing corporation's stock as of the beginning of such 2-
year period.
    (2) De minimis amount. For purposes of this paragraph (b), stock 
exceeds a de minimis amount only if the aggregate amount paid for the 
stock exceeds

[[Page 300]]

$10,000 and more than 2 percent of all outstanding stock is purchased. 
The following rules apply for purposes of determining whether the 2-
percent limit is exceeded. The percentage of the stock acquired in any 
single purchase is determined by dividing the stock's value (as of the 
time of purchase) by the value (as of the time of purchase) of all stock 
outstanding immediately before the purchase. The percentage of stock 
acquired in multiple purchases is the sum of the percentages determined 
for each separate purchase.
    (c) Transfers by shareholders in connection with the performance of 
services not treated as purchases. A transfer of stock by a shareholder 
to an employee or independent contractor (or to a beneficiary of an 
employee or independent contractor) is not treated as a purchase of the 
stock by the issuing corporation for purposes of this section even if 
the stock is treated as having first been transferred to the corporation 
under Sec.  1.83-6(d)(1) (relating to transfers by shareholders to 
employees or independent contractors).
    (d) Exceptions for termination of services, death, disability or 
mental incompetency, or divorce. A stock purchase is disregarded if the 
stock is acquired in the following circumstances:
    (1) Termination of services--(i) Employees and directors. The stock 
was acquired by the seller in connection with the performance of 
services as an employee or director and the stock is purchased from the 
seller incident to the seller's retirement or other bona fide 
termination of such services;
    (ii) Independent contractors. [Reserved]
    (2) Death. Prior to a decedent's death, the stock (or an option to 
acquire the stock) was held by the decedent or the decedent's spouse (or 
by both), by the decedent and joint tenant, or by a trust revocable by 
the decedent or the decedent's spouse (or by both), and--
    (i) The stock is purchased from the decedent's estate, beneficiary 
(whether by bequest or lifetime gift), heir, surviving joint tenant, or 
surviving spouse, or from a trust established by the decedent or 
decedent's spouse; and
    (ii) The stock is purchased within 3 years and 9 months from the 
date of the decedent's death;
    (3) Disability or mental incompetency. The stock is purchased 
incident to the disability or mental incompetency of the selling 
shareholder; or
    (4) Divorce. The stock is purchased incident to the divorce (within 
the meaning of section 1041(c)) of the selling shareholder.
    (e) Effective date. This section applies to stock issued after 
August 10, 1993.

[T.D. 8749, 62 FR 68166, Dec. 31, 1997]

                       Treatment of Capital Losses



Sec.  1.1211-1  Limitation on capital losses.

    (a) Corporations--(1) General rule. In the case of a corporation, 
there shall be allowed as a deduction an amount equal to the sum of:
    (i) Losses sustained during the taxable year from sales or exchanges 
of capital assets, plus
    (ii) The aggregate of all losses sustained in other taxable years 
which are treated as a short-term capital loss in such taxable year 
pursuant to section 1212(a)(1),

but only to the extent of gains from such sales or exchanges of capital 
assets in such taxable year.
    (2) Banks. See section 582(c) for modification of the limitation 
under section 1211(a) in the case of a bank, as defined in section 581.
    (b) Taxpayers other than corporations--(1) General rule. In the case 
of a taxpayer other than a corporation, there shall be allowed as a 
deduction an amount equal to the sum of:
    (i) Losses sustained during the taxable year from sales or exchanges 
of capital assets, plus
    (ii) The aggregate of all losses sustained in other taxable years 
which are treated either as a short-term capital loss or as a long-term 
capital loss in such taxable year pursuant to section 1212(b), but only 
to the extent of gains from sales or exchanges of capital assets in such 
taxable year, plus (if such losses exceed such gains) the additional 
allowance or transitional additional allowance deductible under section 
1211(b) from ordinary income for such taxable year. The additional 
allowance deductible under section 1211(b) shall

[[Page 301]]

be determined by application of subparagraph (2) of this paragraph, and 
the transitional additional allowance by application of subparagraph (3) 
of this paragraph.
    (2) Additional allowance. Except as otherwise provided by 
subparagraph (3) of this paragraph, the additional allowance deductible 
under section 1211(b) for taxable years beginning after December 31, 
1969, shall be the least of:
    (i) The taxable income for the taxable year reduced, but not below 
zero, by the zero bracket amount (in the case of taxable years beginning 
before January 1, 1977, the taxable income for the taxable year);
    (ii) $3,000 ($2,000 for taxable years beginning in 1977; $1,000 for 
taxable years beginning before January 1, 1977); or
    (iii) The sum of the excess of the net short-term capital loss over 
the net long-term capital gain, plus one-half of the excess of the net 
long-term capital loss over the net short-term capital gain.
    (3) Transitional additional allowance--(i) In general. If, pursuant 
to the provisions of Sec.  1.1212-1(b) and subdivision (iii) of this 
subparagraph, there is carried to the taxable year from a taxable year 
beginning before January 1, 1970, a long-term capital loss, and if for 
the taxable year there is an excess of net long-term capital loss over 
net short-term capital gain, then, in lieu of the additional allowance 
provided by subparagraph (2) of this paragraph, the transitional 
additional allowance deductible under section 1211(b) shall be the least 
of:
    (a) The taxable income for the taxable year reduced, but not below 
zero, by the zero bracket amount (in the case of taxable years beginning 
before January 1, 1977, the taxable income for the taxable year);
    (b) $3,000 ($2,000 for taxable years beginning in 1977; $1,000 for 
taxable years beginning before January 1, 1977); or
    (c) The sum of the excess of the net short-term capital loss over 
the net long-term capital gain; that portion of the excess of the net 
long-term capital loss over the net short-term capital gain computed as 
provided in subdivision (ii) of this subparagraph; plus one-half of the 
remaining portion of the excess of the net long-term capital loss over 
the net short-term capital gain.
    (ii) Computation of specially treated portion of excess long-term 
capital loss over net short-term capital gain. In determining the 
transitional additional allowance deductible as provided by this 
subparagraph, there shall be applied thereto in full on a dollar-for-
dollar basis the excess of net long-term capital loss over net short-
term capital gain (computed with regard to capital losses carried to the 
taxable year) to the extent that the long-term capital losses carried to 
the taxable year from taxable years beginning before January 1, 1970, as 
provided by Sec.  1.1212-1(b) and subdivision (iii) of this 
subparagraph, exceed the sum of (a) the portion of the capital gain net 
income (net capital gain for taxable years beginning before January 1, 
1977) actually realized in the taxable year (i.e., computed without 
regard to capital losses carried to the taxable year) which consists of 
net long-term capital gain actually realized in the taxable year, plus 
(b) the amount by which the portion of the capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) 
actually realized in the taxable year (i.e., computed without regard to 
capital losses carried to the taxable year) which consists of net short-
term capital gain actually realized in the taxable year exceeds the 
total of short-term capital losses carried to the taxable year from 
taxable years beginning before January 1, 1970, as provided by Sec.  
1.1212-1(b) and subdivision (iv) of this subparagraph.

The amount by which the net long-term capital losses carried to the 
taxable year from taxable years beginning before January 1, 1970, 
exceeds the sum of (a) plus (b) shall constitute the transitional net 
long-term capital loss component for the taxable year for the purpose of 
this subparagraph.
    (iii) Carryover of certain long-term capital losses not utilized in 
computation of transitional additional allowance. If for a taxable year 
beginning after December 31, 1969, the transitional net long-term 
capital loss component determined as provided in subdivision (ii) of 
this subparagraph exceeds the amount of such component applied to the 
transitional additional allowance for the taxable

[[Page 302]]

year as provided by subdivision (i) of this subparagraph and 
subparagraph (4)(ii) of this paragraph, then such excess shall for the 
purposes of this subparagraph be carried to the succeeding taxable year 
as long-term capital losses from taxable years beginning before January 
1, 1970, for utilization in the computation of the transitional 
additional allowance in the succeeding taxable year as provided in 
subdivisions (i) and (ii) of this subparagraph. In no event, however, 
shall the amount of such component carried to the following taxable year 
as otherwise provided by this subdivision exceed the total of net long-
term capital losses actually carried to such succeeding taxable year 
pursuant to section 1212(b) and Sec.  1.1212-1(b).
    (iv) Carryover of certain short-term capital losses not utilized in 
computation of additional allowance or transitional additional 
allowance. If for a taxable year beginning after December 31, 1969, the 
total short-term capital losses carried to such year from taxable years 
beginning before January 1, 1970, as provided by Sec.  1.1212-1(b) and 
this subdivision exceed the sum of:
    (a) The portion of the capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) actually realized in the 
taxable year (i.e., computed without regard to capital losses carried to 
the taxable year) which consists of net short-term capital gain actually 
realized in the taxable year, plus
    (b) The amount by which the portion of the capital gain net income 
(net capital gain for taxable years beginning before January 1, 1977) 
actually realized in the taxable year (i.e., computed without regard to 
capital losses carried to the taxable year) which consists of net long-
term capital gain actually realized in the taxable year exceeds the 
total long-term capital losses carried to the taxable year from taxable 
years beginning before January 1, 1970, as provided in Sec.  1.1212-1(b) 
and subdivision (iii) of this subparagraph,

then such excess shall constitute the transitional net short-term 
capital loss component for the taxable year, and to the extent such 
component also exceeds the net short-term capital loss applied to the 
additional allowance (as provided in subparagraphs (2) and (4)(i) of 
this paragraph) or the transitional additional allowance (as provided by 
subdivision (i) of this subparagraph and subparagraph (4)(i) of this 
paragraph) for the taxable year shall be carried to the succeeding 
taxable year as short-term capital losses from taxable years beginning 
before January 1, 1970, for utilization in such succeeding taxable year 
in the computation of the additional allowance (as provided by 
subparagraph (2) of this paragraph) or the transitional additional 
allowance (as provided by subdivision (i) and (ii) of this 
subparagraph). In no event, however, shall the amount of such component 
so carried to the following taxable year as otherwise provided by this 
subdivision exceed the total of net short-term capital losses actually 
carried to such succeeding taxable year pursuant to section 1212(b) and 
Sec.  1.1212-1(b).
    (v) Scope of rules. The rules provided by this subparagraph are for 
the purpose of computing the amount of the transitional additional 
allowance deductible for the taxable year pursuant to the provisions of 
section 1212(b)(3) and this subparagraph. More specifically, their 
operation permits the limited use of a long-term capital loss carried to 
the taxable year from a taxable year beginning before December 31, 1969, 
in full on a dollar-for-dollar basis in computing the transitional 
additional allowance deductible for the taxable year. These rules have 
no application to, or effect upon, a determination of the character or 
amount of capital gain net income (net capital gain for taxable years 
beginning before January 1, 1977) reportable in the taxable year. See 
paragraph (b)(1) of this section and Sec.  1.1212-1 for the 
determination of the amount and character of capital gains and losses 
reportable in the taxable year. Further, except to the extent that their 
application may affect the amount of the transitional additional 
allowance deductible for the taxable year and thus the amount to be 
treated as short-term capital loss for carryover purposes under section 
1212(b) and Sec.  1.1212-1(b)(2), these rules have no effect upon a 
determination of the character or amount of capital losses carried to or 
from the taxable year pursuant to section 1212(b) and Sec.  1.1212-1(b).

[[Page 303]]

    (4) Order of application of capital losses to additional allowance 
or transitional additional allowance. In applying the excess of the net 
short-term capital loss over the net long-term capital gain and the 
excess of the net long-term capital loss over the net short-term capital 
gain to the additional allowance or transitional additional allowance 
deductible under section 1211(b) and this paragraph, such excesses 
shall, subject to the limitations of subparagraph (2) or (3) of this 
paragraph, be used in the following order:
    (i) First, there shall be applied to the additional allowance or 
transitional additional allowance the excess, if any, of the net short-
term capital loss over the net long-term capital gain.
    (ii) Second, if such transitional additional allowance exceeds the 
amount so applied thereto as provided in subdivision (i) of this 
subparagraph, there shall next be applied thereto as provided in 
subparagraph (3) of this paragraph the excess, if any, of the net long-
term capital loss over the net short-term capital gain to the extent of 
the transitional net long-term capital loss component for the taxable 
year computed as provided by subdivision (ii) of subparagraph (3) of 
this paragraph.
    (iii) Third, if such additional allowance or transitional additional 
allowance exceeds the sum of the amounts so applied thereto as provided 
in subdivisions (i) and (ii) of this subparagraph, there shall be 
applied thereto one-half of the balance, if any, of the excess net long-
term capital loss not applied pursuant to the provisions of subdivision 
(ii) of this subparagraph.
    (5) Taxable years beginning prior to January 1, 1970. For any 
taxable year beginning prior to January 1, 1970, subparagraphs (2) and 
(3) of this paragraph shall not apply and losses from sales or exchanges 
of capital assets shall be allowed as a deduction only to the extent of 
gains from such sales or exchanges, plus (if such losses exceed such 
gains) the taxable income of the taxpayer or $1,000, whichever is 
smaller.
    (6) Special rules. (i) For purposes of section 1211(b) and this 
paragraph, taxable income is to be computed without regard to gains or 
losses from sales or exchanges of capital assets and without regard to 
the deductions provided in section 151 (relating to personal exemptions) 
or any deduction in lieu thereof. For example, the deductions available 
to estates and trusts under section 642(b) are in lieu of the deductions 
allowed under section 151, and, in the case of estates and trusts, are 
to be added back to taxable income for the purposes of section 1211(b) 
and this paragraph.
    (ii) For taxable years beginning before January 1, 1976, in case the 
tax is computed under section 3 and the regulations thereunder (relating 
to optional tax tables for individuals), the term taxable income as used 
in section 1211(b) and this paragraph shall be read as adjusted gross 
income.
    (iii) In the case of a joint return, the limitation under section 
1211(b) and this paragraph, relating to the allowance of losses from 
sales or exchanges of capital assets, is to be computed and the net 
capital loss determined with respect to the combined taxable income and 
the combined capital gains and losses of the spouses.
    (7) Married taxpayers filing separate returns--(i) In general. In 
the case of a husband or a wife who files a separate return for a 
taxable year beginning after December 31, 1969, the $3,000, $2,000, and 
$1,000 amounts specified in subparagraphs (2)(ii) and (3)(i)(b) of this 
paragraph shall instead be $1,500, $1,000, and $500, respectively.
    (ii) Special rule. If, pursuant to the provisions of Sec.  1.1212-
1(b) and subparagraph (3) (iii) or (iv) of this paragraph, there is 
carried to the taxable year from a taxable year beginning before January 
1, 1970, a short-term capital loss or a long-term capital loss, the 
$1,500, $1,000 and $500 amounts specified in subdivision (i) of this 
subparagraph shall instead be maximum amounts of $3,000, $2,000, and 
$1,000 respectively, equal to $1,500, $1,000, and $500, respectively, 
plus the total of the transitional net long-term capital loss component 
for the taxable year computed as provided by subparagraph (3)(ii) of 
this paragraph and the transitional net short-term capital loss 
component for the taxable year computed as provided by subparagraph 
(3)(iv) of this paragraph.

[[Page 304]]

    (8) Examples. The provisions of section 1211(b) may be illustrated 
by the following examples:

    Example 1. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and losses.........     $4,400
Deduction provided by section 151............................        625
                                                   ------------
Taxable income for purposes of section 1211(b)...............      5,025
Long-term capital gain............................     $1,200
Long-term capital loss............................    (5,300)
                                                   -----------
Net long-term capital loss........................    (4,100)
Losses to the extent of gains.....................    (1,200)
Additional allowance deductible under section 1211(b)........      1,000
                                                              ==========
 


The net long-term capital loss of $4,100 is deductible in 1970 only to 
the extent of an additional allowance of $1,000 which is smaller than 
the taxable income of $5,025. Under section 1211(b) and subparagraph (2) 
of this paragraph, $2,000 of excess net long-term capital loss was 
required to produce the $1,000 additional allowance. Therefore, a net 
long-term capital loss of $2,100 ($4,100 minus $2,000) is carried over 
under section 1212(b) to the succeeding taxable year. If A had the same 
taxable income for purposes of section 1211(b) (after reduction by the 
zero bracket amount) and the same transactions in 1977, the additional 
allowance would be $2,000, and a net long-term capital loss of $100 
would be carried over. For a taxable year beginning in 1978 or 
thereafter, these facts would give rise to a $2,050 additional allowance 
and no carryover.
    Example 2. B, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and             $90
 losses...........................................
Deduction provided by section 151.................        625
                                                   ------------
Taxable income for purposes of section 1211(b)....        715
Long-term capital gain............................     $1,200
Long-term capital loss............................    (5,200)
                                                   -----------
Net long-term capital loss........................    (4,000)
Losses to the extent of gains.....................    (1,200)
Additional allowance deductible under section 1211(b)........        715
                                                              ==========
 


The net long-term capital loss of $4,000 is deductible in 1970 only to 
the extent of an additional allowance of $715, since the $715 of taxable 
income for purposes of section 1211(b) is smaller than $1,000. Under 
section 1211(b) and subparagraph (2) of this paragraph, $1,430 of net 
long-term capital loss was required to produce the $715 additional 
allowance. Therefore, a net long-term capital loss of $2,570 ($4,000 
minus $1,430) is carried over under section 1212(b) to the succeeding 
taxable year. For illustration of the result if the net capital loss for 
the taxable year is smaller than both $1,000 and taxable income for the 
purposes of section 1211(b), see examples (3) and (4) of this 
subparagraph. For carryover of a net capital loss, see Sec.  1.1212-1. 
Assuming the same taxable income for purposes of section 1211(b) (after 
reduction by the zero bracket amount) and the same transations for 
taxable years beginning in 1977 or thereafter, the same result would be 
reached.
    Example 3. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1971:

Taxable income exclusive of capital gains and         $13,300
 losses...........................................
Deduction provided by section 151.................        675
                                                   ------------
Taxable income for purposes of section 1211(b)....     13,975
Long-term capital gain............................       $400
Long-term capital loss............................     ($600)
                                                   -----------
Net long-term capital loss........................      (200)
                                                   ===========
Short-term capital gain...........................        900
Short-term capital loss...........................    (1,400)
                                                   -----------
Net short-term capital loss.......................      (500)
                                                   ===========
Losses to extent of gains.........................    (1,300)
Additional allowance deductible under section 1211(b)........       $600
                                                              ==========
 


The $600 additional allowance deductible under section 1211(b) is the 
least of: (i) Taxable income of $13,975, (ii) $1,000, or (iii) the sum 
of the excess of the net short-term capital loss of $500 over the net 
long-term capital gain, plus one-half of the excess of the net long-term 
capital loss of $200 over the net short-term capital gain. The $600 
additional allowance, therefore, consists of the net short-term capital 
loss of $500, plus $100 (one-half of the net long-term capital loss of 
$200), the total of which is smaller than both $1,000 and taxable income 
for purposes of section 1211(b). No amount of net capital loss remains 
to be carried over under section 1212(b) to the succeeding taxable year 
since the entire amount of the net short-term capital loss of $500 plus 
the entire amount of the net long-term capital loss of $200 required to 
produce $100 of the deduction was absorbed by the additional allowance 
deductible under section 1211(b) for 1971. Assuming the same taxable 
income for purposes of section 1211(b) (after reduction by the zero 
bracket amount) and the same transactions for taxable years beginning in 
1977 or thereafter, the result would remain unchanged.
    Example 4. A, a married individual filing a separate return with one 
exemption allowable as a deduction under section 151, has the following 
transactions in 1971:

[[Page 305]]



Taxable income exclusive of capital gains and         $12,000
 losses...........................................
Deduction provided by section 151.................        675
                                                   ------------
Taxable income for purposes of section 1211(b)....     12,675
Long-term capital loss............................     ($800)
Long-term capital gain............................        300
                                                   -----------
Net long-term capital loss........................      (500)
                                                   ===========
Short-term capital loss...........................      (500)
Short-term capital gain...........................        600
                                                   -----------
Net short-term capital gain.......................        100
                                                   ===========
Losses to the extent of gains................................      (900)
Additional allowance deductible under section 1211(b)........        200
                                                              ==========
 


The excess net long-term capital loss of $400 (net long-term capital 
loss of $500 minus net short-term capital gain of $100) is deductible in 
1971 only to the extent of an additional allowance of $200 (one-half of 
$400) which is smaller than both $500 (married taxpayer filing a 
separate return for a taxable year beginning after December 31, 1969) 
and taxable income for purposes of section 1211(b). Since there is no 
net short-term capital loss in excess of net long-term capital gains for 
the taxable year, the $200 additional allowance deductible under section 
1211(b) consists entirely of excess net long-term capital loss. No 
amount of net capital loss remains to be carried over under section 
1212(b) to the succeeding taxable year. Assuming the same taxable income 
for purposes of section 1211(b) (after reduction by the zero bracket 
amount) and the same transactions for taxable years beginning in 1977 or 
thereafter, the result would remain unchanged.
    Example 5. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and         $13,300
 losses...........................................
Deduction provided by section 151.................        625
                                                   ------------
Taxable income for purposes of section 1211(b)....     13,925
Long-term capital loss............................   ($6,000)
Long-term capital gain............................      2,000
                                                   -----------
Net long-term capital loss........................    (4,000)
                                                   ===========
Short-term capital gain...........................      3,000
Short-term capital loss carried to 1970 from 1969     (3,000)
 under section 1212(b)(1).........................
                                                   -----------
Net short-term capital loss.......................          0
                                                   ===========
Losses to the extent of gains.....................    (5,000)
Additional allowance deductible under section           1,000
 1211(b)..........................................
                                                   ===========
 


The $1,000 additional allowance deductible under section 1211(b) is the 
least of (i) taxable income of $13,925, (ii) $1,000, or (iii) the sum of 
the net short-term capital loss ($0) plus one-half of the net long-term 
capital loss of $4,000. The $1,000 additional allowance, therefore, 
consists of net long-term capital loss. Since $2,000 of the net long-
term capital loss of $4,000 was required to produce the $1,000 
additional allowance, the $2,000 balance of the net long-term capital 
loss is carried over under section 1212(b) to 1971. Assuming the same 
taxable income for purposes of section 1211(b) (after reduction by the 
zero bracket amount) and the same transactions for taxable years 
beginning in 1977 or thereafter, the additional allowance would be 
$2,000, and there would be no carryover.
    Example 6. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and losses.........    $13,300
Deduction provided by section 151............................        625
                                                   ------------
Taxable income for purposes of section 1211(b)...............     13,925
Long-term capital gain............................     $5,000
Long-term capital loss............................    (7,000)
Long-term capital loss carried to 1970 from 1969        (500)
 under section 1212 (b)(1)........................
                                                   ===========
Net long-term capital Loss........................    (2,500)
Short-term capital gain...........................      1,100
Short-term capital loss...........................    (1,400)
                                                   -----------
Net short-term capital loss.......................      (300)
                                                   ===========
Losses to extent of gains.........................    (6,100)
Transitional additional allowance deductible under      1,000
 section 1211(b)..................................
                                                   ===========
 


Because a component of the net long-term capital loss for 1970 is a $500 
long-term capital loss carried to 1970 from 1969, the transitional 
additional allowance deductible under section 1211(b) and subparagraph 
(3) of this paragraph is the least of (i) taxable income of $13,925, 
(ii) $1,000 or (iii) the sum of the net short-term capital loss of $300, 
plus the net long-term capital loss for 1970, to the extent of the $500 
long-term capital loss carried to 1970 from 1969 and one-half of the 
$2,000 balance of the net long-term capital loss. The entire $500 long-
term capital loss carried to 1970 from 1969 is applicable in full to the 
transitional additional allowance because there was no net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) actually realized in 1970. The $1,000 transitional additional 
allowance, therefore, consists of the net short-term capital loss of 
$300, the $500 long-term capital loss carried to 1970 from 1969, plus 
one-half of enough of the balance of the 1970 net long-term capital loss 
($400) to make up the $200 balance of the $1,000 transitional additional 
allowance. A long-term capital loss of $1,600 ($2,500 minus $900), all 
of which is attributable to 1970, is carried over under section

[[Page 306]]

1212(b) to 1971. Assuming the same taxable income for purposes of 
section 1211(b) (after reduction by the zero bracket amount) and the 
same transactions for taxable years beginning in 1977 or thereafter, the 
transitional additional allowance would be $1,800. No amount would 
remain to be carried over to the succeeding taxable year.
    Example 7. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and losses.........    $13,300
Deduction provided by section 151............................        625
                                                   ------------
Taxable income for purposes of section 1211(b)...............     13,925
Long-term capital loss............................   ($2,000)
Long-term capital loss carried to 1970 from 1969        (500)
 under section 1212 (b)(1)........................
                                                   -----------
Net long-term capital loss........................    (2,500)
                                                   ===========
Short-term capital gain...........................      2,600
Short-term capital loss carried to 1970 from 1969     (3,000)
 under section 1212 (b)(1)........................
                                                   -----------
Net short-term capital loss.......................      (400)
                                                   ===========
Losses to the extent of gains.....................    (2,600)
Transitional additional allowance deductible under      1,000
 section 1211(b)..................................
                                                   ===========
 


Because a component of the net long-term capital loss for 1970 is a $500 
long-term capital loss carried to 1970 from 1969, the transitional 
additional allowance deductible under section 1211(b) and subparagraph 
(3) of this paragraph is the least of (i) taxable income of $13,925, 
(ii) $1,000, or (iii) the sum of the net short-term capital loss of 
$400, plus the net long-term capital loss for 1970 to the extent of the 
$500 long-term capital loss carried to 1970 from 1969, and one-half of 
the $2,000 balance of the net long-term capital loss. The entire $500 
long-term capital loss carried to 1970 from 1969 is applicable in full 
to the transitional additional allowance because the net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) for the taxable year (computed without regard to capital losses 
carried to the taxable year) consisted entirely of net short-term 
capital gain not in excess of the short-term capital loss carried to 
1970 from 1969. The $1,000 transitional additional allowance, therefore, 
consists of the net short-term capital loss of $400, the $500 long-term 
capital loss carried to 1970 from 1969, plus one-half of enough of the 
balance of the 1970 net long-term capital loss ($200) to make up the 
$100 balance of the $1,000 transitional additional allowance. A long-
term capital loss of $1,800 ($2,500 minus $700), all of which is 
attributable to 1970, is carried over under section 1212(b) to 1971. 
Assuming the same taxable income for purposes of section 1211(b) (after 
reduction by the zero bracket amount) and the same transactions for 
taxable years beginning in 1977 or thereafter, the transitional 
additional allowance would be $1,900. No amount would remain to be 
carried over to the succeeding taxable year.
    Example 8. Assume the facts in Example (7) but assume that the 
individual with one exemption allowable as a deduction under section 151 
is married and files a separate return for 1970. The maximum 
transitional additional allowance to which the individual would be 
entitled for 1970 pursuant to subparagraph (7)(ii) of this paragraph 
would be the sum of $500 plus (i) $2,400 of the short-term capital loss 
of $3,000 carried to 1970 from 1969 (the amount by which such carryover 
exceeds the $600 net capital gain (capital gain net income for taxable 
years beginning after December 31, 1976) actually realized in 1970, all 
of which is net short-term capital gain) and (ii) the $500 long-term 
capital loss carried to 1970 from 1969. However, since this sum ($3,400) 
exceeds $1,000, the maximum transitional additional allowance to which 
the individual is entitled for 1970 is limited to $1,000. If for 1971, 
the same married individual had taxable income of $13,925 for purposes 
of section 1211(b) and no capital transactions, and filed a separate 
return, the additional allowance deductible under section 1211(b) for 
1971 would be limited to $500 by reason of subdivision (i) of 
subparagraph (7) of this paragraph, since, as illustrated in Example 7, 
no part of the capital loss carried over to 1971 under section 1212 (b) 
is attributable to 1969. Assuming the same taxable income for purposes 
of section 1211(b) (after reduction by the zero bracket amount) and the 
same transactions as in example (7) for a married individual filing a 
separate return for a taxable year beginning in 1977 or thereafter, the 
transitional additional allowance would be $1,900. No amount would 
remain to be carried over to the succeeding taxable year.
    Example 9. B, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1971:

Taxable income exclusive of capital gains and losses.........    $10,000
Deductions provided by section 151...........................        675
                                                   ------------
Taxable income for purposes of section 1211(b)...............     10,675
Long-term capital gain............................     $2,500
Long-term capital loss treated under Sec.   1.1211-   (5,000)
 1 (b)(3)(iii) as carried over from 1969..........
                                                   -----------
Net long-term capital loss........................    (2,500)
                                                   ===========
Short-term capital gain...........................      2,700
Short-term capital loss carried to 1971 from 1970     (1,000)
 under section 1212 (b)(1)........................

[[Page 307]]

 
Short-term capital loss treated under Sec.           ($2,000)
 1.1211-1 (b)(3)(iv) as carried over from 1969....
                                                   -----------
Net short-term capital loss.......................      (300)
                                                   ===========
Losses to extent of gain..........................    (5,200)
Transitional additional allowance deductible under      1,000
 section 1211(b)..................................
                                                   ===========
 


Because a component of the net long-term capital loss for 1971 is a 
long-term capital loss treated under subparagraph (3)(iii) of this 
paragraph as carried over from 1969, the rules for computation of the 
transitional additional allowance under subparagraph (3) (i) and (ii) of 
this paragraph apply. The transitional net long-term capital loss 
component for 1971 under subparagraph (3)(ii) of this paragraph is 
$1,800, that is, the amount by which the $5,000 long-term loss treated 
as carried over from 1969 to 1971 exceeds (a) the net long-term capital 
gain of $2,500 actually realized in 1971 plus (b) the $700 excess of the 
$2,700 net short-term capital gain actually realized in 1971 over the 
$2,000 short-term capital loss treated as carried over to 1971 from 
1969. The transitional additional allowance for 1971 consists of the 
$300 net short-term capital loss plus $700 of the net long-term capital 
loss attributable to 1969. A net long-term capital loss of $1,800 
($2,500 minus $700) is carried over to 1972 under section 1212(b). Only 
$1,100 of the $1,800 will be treated in 1972 as carried over from 1969 
since under subparagraph (3)(iii) of this paragraph the transitional net 
long-term capital loss component of $1,800 is reduced by the amount 
($700) applied to the transitional additional allowance for 1971. 
Assuming the same taxable income for purposes of section 1211(b) (after 
reduction by the zero bracket amount) and the same transactions for a 
taxable year beginning in 1977, the transitional additional allowance 
would be $2,000. A net long-term capital loss of $800 would remain to be 
carried over. Of this amount $100 would be treated as carried over from 
1969. Assuming the original facts for a taxable year beginning in 1978, 
the transitional additional allowance would be $2,450. No amount would 
remain to be carried over to the succeeding taxable year.

[T.D. 7301, 39 FR 964, Jan. 4, 1974; 39 FR 2758, Jan. 24, 1974, as 
amended by T.D. 7597, 44 FR 12419, Mar. 7, 1979; T.D. 7728, 45 FR 72650, 
Nov. 3, 1980]



Sec.  1.1212-1  Capital loss carryovers and carrybacks.

    (a) Corporations; other taxpayers for taxable years beginning before 
January 1, 1964--(1) Regular net capital loss sustained for taxable 
years beginning before January 1, 1970. (i) A corporation sustaining a 
net capital loss for any taxable year beginning before January 1, 1970, 
and a taxpayer other than a corporation sustaining a net capital loss 
for any taxable year beginning before January 1, 1964, shall carry over 
such net loss to each of the 5 succeeding taxable years and treat it in 
each of such 5 succeeding taxable years as a short-term capital loss to 
the extent not allowed as a deduction against any net capital gains 
(capital gain net income for taxable years beginning after December 31, 
1976) of any taxable years intervening between the taxable year in which 
the net capital loss was sustained and the taxable year to which 
carried. The carryover is thus applied in each succeeding taxable year 
to offset any net capital gain in such succeeding taxable year. The 
amount of the capital loss carryover may not be included in computing a 
new net capital loss of a taxable year which can be carried over to the 
next 5 succeeding taxable years. For purposes of this subparagraph, a 
net capital gain (capital gain net income for taxable years beginning 
after December 31, 1976) shall be computed without regard to capital 
loss carryovers or carrybacks. In the case of nonresident alien 
individuals, see section 871 for special rules on capital loss 
carryovers. For the rules applicable to the portion of a net capital 
loss of a corporation which is attributable to a foreign expropriation 
capital loss sustained in taxable years beginning after December 31, 
1958, see subparagraph (2) of this paragraph. For the rules applicable 
to a taxpayer other than a corporation in the treatment of that amount 
of a net capital loss which may be carried over under section 1212 and 
this subparagraph as a short-term capital loss to the first taxable year 
beginning after December 31, 1963, see paragraph (b) of this section.
    (ii) The practical operation of the provisions of this subparagraph 
may be illustrated by the following example:

    Example: (a) For the taxable years 1952 to 1956, inclusive, an 
individual with one exemption allowable under section 151 (or 
corresponding provision of prior law) is assumed to have a net short-
term capital loss, net short-term capital gain, net long-term capital 
loss, net long-term capital gain, and taxable income (net income for 
1952 and 1953) as follows:

[[Page 308]]



----------------------------------------------------------------------------------------------------------------
                                       1952            1953            1954            1955            1956
----------------------------------------------------------------------------------------------------------------
Carryover from prior years:
  From 1952.....................  ..............       ($50,000)       ($29,500)       ($29,500)  ..............
  From 1954.....................  ..............  ..............  ..............        (19,500)       ($13,000)
Net short-term loss (computed          ($30,000)         (5,000)        (10,000)  ..............  ..............
 without regard to the
 carryovers)....................
Net short-term gain (computed     ..............  ..............  ..............          40,000  ..............
 without regard to the
 carryovers)....................
Net long-term loss..............        (20,500)  ..............        (10,000)         (5,000)  ..............
Net long-term gain..............  ..............          25,000  ..............  ..............          15,000
Net income or taxable income,                500             500             500           1,000             500
 computed without regard to
 capital gains and losses, and,
 after 1953, without regard to
 the deduction provided by
 section 151....................
Net capital gain (capital gain    ..............          20,500  ..............          36,000  ..............
 net income for taxable years
 beginning after December 31,
 1976) (computed without regard
 to the carryovers).............
Net capital loss................        (50,000)  ..............        (19,500)  ..............  ..............
Deduction allowable under         ..............  ..............  ..............  ..............           1,000
 section 1202...................
Taxable income (after deductions  ..............  ..............  ..............  ..............             900
 allowable under sections 151
 and 1202)......................
----------------------------------------------------------------------------------------------------------------

    (b) Net capital loss of 1952. The net capital loss is $50,000. This 
figure is the excess of the losses from sales or exchanges of capital 
assets over the sum of (1) gains (in this case, none) from sales or 
exchanges of capital assets, and (2) net income (computed without regard 
to capital gains and losses) of $500. This amount may be carried forward 
in full as a short-term loss to 1953. However, in 1953 there was a net 
capital gain (capital gain net income for taxable years beginning after 
December 31, 1976) of $20,500, as defined by section 117(a)(10)(B) of 
the Internal Revenue Code of 1939, and limited by section 117(e)(1) of 
the 1939 Code, against which this net capital loss of $50,000 is allowed 
in part. The remaining portion--$29,500--may be carried forward to 1954 
and 1955 since there was no net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) in 1954. In 1955 
this $29,500 is allowed in full against net capital gain of $36,000, as 
defined by paragraph (d) of Sec.  1.1222-1 and limited by subdivision 
(i) of this subparagraph.
    (c) Net capital loss of 1954. The net capital loss is $19,500. This 
figure is the excess of the losses from sales or exchanges of capital 
assets over the sum of (1) gains (in this case, none) from sales or 
exchanges of capital assets and (2) taxable income (computed without 
regard to capital gains and losses and the deductions provided in 
section 151) of $500. This amount may be carried forward in full as a 
short-term loss to 1955. The net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) in 1955, before 
deduction of any carryovers, is $36,000. (See sections 1222(9)(B) and 
1212 of the Internal Revenue Code of 1954, as it existed prior to the 
enactment of the Revenue Act of 1964.) The $29,500 balance of the 1952 
loss is first applied against the $36,000, leaving a balance of $6,500. 
Against this amount the $19,500 loss arising in 1954 is applied, leaving 
a loss of $13,000, which may be carried forward to 1956. Since this 
amount is treated as a short-term capital loss in 1956 under subdivision 
(i) of this subparagraph, the excess of the net long-term capital gain 
over the net short-term capital loss is $2,000 ($15,000 minus $13,000). 
Half of this excess is allowable as a deduction under section 1202. 
Thus, after also deducting the exemption allowed as a deduction under 
section 151 ($600), the taxpayer has a taxable income of $900 ($2,500 
minus $1,600) for 1956.

    (2) Corporations sustaining foreign expropriation capital losses for 
taxable years ending after December 31, 1958--(i) In general. A 
corporation sustaining a net capital loss for any taxable year ending 
after December 31, 1958, any portion of which is attributable to a 
foreign expropriation capital loss, shall carry over such portion of the 
loss to each of the ten succeeding taxable years and treat it in each of 
such succeeding taxable years as a short-term capital loss to the extent 
and consistent with the manner provided in subparagraph (1) of this 
paragraph. For such purposes, the portion of any net capital loss for 
any taxable year which is attributable to a foreign expropriation 
capital loss is the amount, not in excess of the net capital loss for 
such year, of the foreign expropriation capital loss for such year. The 
portion of a net capital loss for any taxable year which is attributable 
to a foreign expropriation capital loss shall be treated as a separate 
net capital loss for that

[[Page 309]]

year and shall be applied, after first applying the remaining portion of 
such net capital loss, to offset any capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) in a 
succeeding taxable year. In applying net capital losses of two or more 
taxable years to offset the capital gain net income (net capital gain(s) 
for taxable years beginning before January 1, 1977) of a subsequent 
taxable year, such net capital losses shall be offset against such 
capital gain net income (net capital gain(s) for taxable years beginning 
before January 1, 1977) in the order of the taxable years in which the 
losses were sustained, beginning with the loss for the earliest 
preceding taxable year, even though one or more of such net capital 
losses are attributable in whole or in part to a foreign expropriation 
capital loss.
    (ii) Foreign expropriation capital loss defined. For purposes of 
this subaparagraph the term foreign expropriation capital loss means, 
for any taxable year, the sum of the losses taken into account in 
computing the net capital loss for such year which are:
    (a) Losses sustained directly by reason of the expropriation, 
intervention, seizure, or similar taking of property by the government 
of any foreign country, any political subdivision thereof, or any agency 
or instrumentality of the foregoing, or
    (b) Losses (treated under section 165 (g)(1) as losses from the sale 
or exchange of capital assets) from securities which become worthless by 
reason of the expropriation, intervention, seizure, or similar taking of 
property by the government of any foreign country, any political 
subdivision thereof, or any agency or instrumentality of the foregoing.
    (iii) Illustrations. The application of this subparagraph may be 
illustrated by the following examples:

    Example 1. X, a domestic corporation which uses the calendar year as 
the taxable year, owns as a capital asset 75 percent of the outstanding 
stock of Y, a foreign corporation operating in a foreign country. In 
1961, the foreign country seizes all of the assets of Y, rendering X's 
stock in Y worthless and thus causing X to sustain a $40,000 foreign 
expropriation capital loss for such year. In 1961, X has $30,000 of 
other losses from the sale or exchange of capital assets and $50,000 of 
gains from the sale or exchange of capital assets. X's net capital loss 
for 1961 is $20,000 ($70,000-$50,000). Since the foreign expropriation 
capital loss exceeds this amount, the entire $20,000 is a foreign 
expropriation capital loss for 1961.
    Example 2. Z, a domestic corporation which uses the calendar year as 
the taxable year, has a net capital loss of $50,000 for 1961, $30,000 of 
which is attributable to a foreign expropriation capital loss. Pursuant 
to the provisions of this paragraph, $30,000 of such net capital loss 
shall be carried over as a short-term capital loss to each of the 10 
taxable years succeeding 1961, and the remaining $20,000 of the net 
capital loss shall be carried over as a short-term capital loss to each 
of the 5 taxable years succeeding 1961. Z has a $35,000 net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) (determined without regard to any capital loss carryover) for 
1962. In offsetting the $50,000 capital loss carryover from 1961 against 
the $35,000 net capital gain (capital gain net income for taxable years 
beginning after December 31, 1976) for 1962, the $30,000 portion of such 
carryover which is attributable to the foreign expropriation capital 
loss for 1961 is applied against the 1962 net capital gain (capital gain 
net income for taxable years beginning after December 31, 1976) after 
applying the $20,000 remaining portion of the carryover. Thus, there is 
a capital loss carryover of $15,000 to 1963, all of which is 
attributable to the foreign expropriation capital loss for 1961. Z has a 
net capital loss for 1963 of $10,000, no portion of which is 
attributable to a foreign expropriation capital loss. For 1964, Z has a 
net capital gain (capital gain net income for taxable years beginning 
after December 31, 1976) of $22,000 (determined without regard to the 
capital loss carryovers from 1961 and 1963). In offsetting the capital 
loss carryovers from 1961 and 1963 against Z's $22,000 net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) for 1964, the $15,000 carryover from 1961 is applied against the 
1964 net capital gain (capital gain net income for taxable years 
beginning after December 31, 1976) before the $10,000 capital loss 
carryover from 1963 is applied against such gain. Thus, $3,000 of the 
1963 net capital loss remains to be carried over to 1965.

    (3) Regular net capital loss sustained by a corporation for taxable 
years beginning after December 31, 1969--(i) General rule. A corporation 
sustaining a net capital loss for any taxable year beginning after 
December 31, 1969 (hereinafter in this paragraph referred to as the loss 
year), shall:
    (a) Carry back such net capital loss to each of the 3 taxable years 
preceding

[[Page 310]]

the loss year, but only to the extent that such net capital loss is not 
attributable to a foreign expropriation capital loss and the carryback 
of such net capital loss does not increase or produce a net operating 
loss (as defined in section 172(c)) for the taxable year to which it is 
carried back; and
    (b) Carry over such net capital loss to each of the 5 taxable years 
succeeding the loss year,

and, subject to subdivision (ii) of this subparagraph, treat such net 
capital loss in each of such 3 preceding and 5 succeeding taxable years 
as a short-term capital loss.
    (ii) Amount treated as a short-term capital loss in each year. The 
entire amount of the net capital loss for any loss year shall be carried 
to the earliest of the taxable years to which such net capital loss may 
be carried, and the portion of such net capital loss which shall be 
carried to each of the other taxable years to which such net capital 
loss may be carried shall be the excess, if any, of such net capital 
loss over the total of the capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) (computed without regard 
to the capital loss carryback from the loss year or any taxable year 
thereafter) for each of the prior taxable years to which such net 
capital loss may be carried.
    (iii) Special rules. (a) In the case of a net capital loss which is 
not a foreign expropriation capital loss and which cannot be carried 
back in full to a preceding taxable year by reason of section 
1212(a)(1)(A)(ii) and subdivision (i)(a) of this subparagraph because 
such loss would produce or increase a net operating loss in such 
preceding taxable year, the capital gain net income (net capital gain 
for taxable years beginning before January 1, 1977) for such preceding 
taxable year shall in no case be treated as greater than the amount of 
such net capital loss which can be carried back to such preceding 
taxable year upon the application of section 1212(a)(1)(A)(ii) and 
subdivision (i)(a) of this subparagraph.
    (b) For the rules applicable to the portion of a net capital loss of 
a corporation which is attributable to a foreign expropriation capital 
loss sustained in a taxable year beginning after December 31, 1958, see 
section 1212(a)(2) and subparagraph (2) of this paragraph.
    (c) Section 1212(a)(1)(A) and subdivision (i)(a) of this 
subparagraph shall not apply to (and no carryback shall be allowed with 
respect to) the net capital loss of a corporation for any taxable year 
for which such corporation is an electing small business corporation 
under subchapter S. See Sec.  1.1372-1.
    (d) A net capital loss of a corporation for a year for which it is 
not an electing small business corporation under subchapter S shall not 
be carried back under section 1212(a)(1)(A) and subdivision (i)(a) of 
this subparagraph to a taxable year for which such corporation is an 
electing small business corporation. See section 1212(a)(3).
    (e) A net capital loss of a corporation shall not be carried back 
under section 1212(a)(1)(A) and subdivision (i)(a) of this subparagraph 
to a taxable year for which the corporation was a foreign personal 
holding company, a regulated investment company, or a real estate 
investment trust, or for which an election made by the corporation under 
section 1247 is applicable. See section 1212(a)(4).
    (f) A taxable year to which a net capital loss of a corporation 
cannot, by reason of (d) or (e) of this subdivision, be carried back 
under section 1212(a) (1)(A) and subdivision (i)(a) of this subparagraph 
shall nevertheless be treated as 1 of the 3 taxable years preceding the 
loss year for purposes of section 1212(a)(1)(A) and such subdivision 
(i)(a); but any capital gain net income (net capital gain for taxable 
years beginning before January 1, 1977) for such taxable year to which 
such net capital loss cannot be carried back shall be disregarded for 
purposes of subdivision (ii) of this subparagraph.
    (g) A regulated investment company (as defined in section 851) 
sustaining a net capital loss shall carry over that loss to each of the 
8 taxable years succeeding the loss year. However, the 8-year period 
prescribed in the preceding sentence shall be reduced (but not to less 
than 5 years) by the sum of (1) the number of taxable years to which the 
net capital loss must be carried back pursuant to subdivision (i)(a) of 
this

[[Page 311]]

subparagraph (as limited by subdivision (iii)(e) of this subparagraph) 
and (2) the number of taxable years, of the 8 taxable year succeeding 
the loss year, that the corporation failed to qualify as a regulated 
investment company as defined in section 851. This subdivision shall not 
extend the carryover period prescribed in subdivision (i)(b) of this 
subparagraph to a year in which a corporation is not a regulated 
investment company as defined in section 851.
    (iv) The application of this subparagraph may be illustrated by the 
following examples, in each of which it is assumed that the corporation 
is not, and never has been, a corporation described in subdivision (iii) 
(c) or (d) of this subparagraph, that the corporation files its tax 
returns on a calendar year basis, and that no capital loss sustained is 
a foreign expropriation capital loss:

    Example 1. A corporation has a net capital loss for 1970 which 
section 1212(a)(1)(A) permits to be carried back. The entire net capital 
loss for 1970 may be carried back to 1967, but only to the extent that a 
net operating loss for 1967 would not be produced or increased. The 
amount of the carryback to 1968 is the excess of the net capital loss 
for 1970 over the net capital gain (capital gain net income for taxable 
years beginning after December 31, 1976) for 1967, computed without 
regard to a capital loss carryback from 1970 or any taxable year 
thereafter. The amount of the carryback to 1969 is the excess of the net 
capital loss for 1970 over the sum of the net capital gains (capital 
gain net income for taxable years beginning after December 31, 1976) for 
1967 and 1968, computed without regard to a capital loss carryback from 
1970 or any taxable year thereafter. The amount of the carryover to 1971 
is the excess of the net capital loss for 1970 over the sum of the net 
capital gains (capital gain net income for taxable years beginning after 
December 31, 1976) for 1967, 1968, and 1969, computed without regard to 
a capital loss carryback from 1970 or any taxable year thereafter. 
Similarly, the amount of the carryover to 1972, 1973, 1974, and 1975, 
respectively, is the excess of the net capital loss for 1970 over the 
sum of the net capital gains (capital gain net income for taxable years 
beginning after December 31, 1976) for taxable years prior to 1972, 
1973, 1974, or 1975, as the case may be, to which the net capital loss 
for 1970 may be carried, computed without regard to a capital loss 
carryback from 1970 or any year thereafter.
    Example 2. For the taxable years 1967 to 1975, inclusive, a 
corporation is assumed to have net capital loss, net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976), and taxable income (computed without regard to capital gains and 
losses) as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  1967      1968      1969      1970      1971      1972      1973      1974      1975
--------------------------------------------------------------------------------------------------------------------------------------------------------
Taxable income (computed without regard to capital gains or      $25,000   $25,000   $25,000   $25,000   $25,000   $25,000   $25,000   $25,000   $25,000
 losses)......................................................
Net capital loss..............................................  ........  ........   (1,000)  (29,500)  (16,000)     (500)  ........  ........  ........
Net capital gain (capital gain net income for taxable years       14,000    16,000  ........  ........  ........  ........     8,000     7,500     6,500
 beginning after December 31, 1976) (computed without regard
 to carrybacks or carryovers).................................
Carryback or carryover:
  From 1969...................................................  ........  ........  ........  ........  ........  ........   (1,000)  ........  ........
  From 1970...................................................  (14,000)  (15,500)  ........  ........  ........  ........  ........  ........  ........
  From 1971...................................................  ........     (500)  ........  ........  ........  ........   (7,000)   (7,500)   (1,000)
  From 1972...................................................  ........  ........  ........  ........  ........  ........  ........  ........     (500)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The net capital loss of 1969, under the rules of subparagraph (1) of 
this paragraph, may not be carried back. Thus, the net capital loss for 
1970 is carried back and partially absorbed by the net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) for 1967, and a portion of the net capital losses of both 1970 and 
1971 are carried back to 1968. The net capital loss for 1969 is the 
oldest that may be carried to 1973, and thus, it is the first carried 
over and absorbed by the net capital gain for 1973. The net capital loss 
for 1972 (which is not carried back because of the net capital losses in 
the 3 years preceding 1972) may be carried over to 1973.
    Example 3. For the taxable years 1967 to 1970, inclusive, a 
corporation which was organized on January 1, 1967, realized operating 
income and net capital gains (capital gain net income for taxable years 
beginning

[[Page 312]]

after December 31, 1976) and sustained operating losses and net capital 
losses as follows:

------------------------------------------------------------------------
                                        Operating income
                                             or loss
                                          (exclusive of    Capital gain
                                         capital gain or      or loss
                                              loss)
------------------------------------------------------------------------
1967..................................           $20,000         $24,000
1968..................................            20,000               0
1969..................................            20,000               0
1970..................................          (25,000)        (20,000)
------------------------------------------------------------------------

    The net capital loss of $20,000 for 1970 is carried back to 1967 and 
applied against the $24,000 net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) realized in that 
year, reducing such net capital gain (capital gain net income for 
taxable years beginning after December 31, 1976) to $4,000. The net 
operating loss of $25,000 for 1970 is then carried back to 1967 and 
applied first to eliminate the $20,000 of operating income for that year 
and then to eliminate the net capital gain (capital gain net income for 
taxable years beginning after December 31, 1976) for that year of $4,000 
(as reduced by the 1970 capital loss carryback).
    Example 4. Assume the same facts as in Example 3 but substitute the 
following figures:

------------------------------------------------------------------------
                                        Operating income
                                             or loss
                                          (exclusive of    Capital gain
                                         capital gain or      or loss
                                              loss)
------------------------------------------------------------------------
1967..................................         ($20,000)         $24,000
1968..................................            20,000               0
1969..................................            20,000               0
1970..................................          (25,000)        (20,000)
------------------------------------------------------------------------

    The net capital loss of $20,000 for 1970 is carried back to 1967 and 
applied against the $24,000 net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) realized in that 
year only to the extent of $4,000, the maximum amount to which the 1970 
capital loss carryback can be applied without producing a net operating 
loss for 1967. The unused $16,000 balance of the 1970 net long-term 
capital loss can be carried forward to 1971 and subsequent taxable years 
to the extent provided in subdivision (i)(b) of this subparagraph.
    Example 5. Assume the same facts as in Example 3 but substitute the 
following figures:

------------------------------------------------------------------------
                                        Operating income
                                             or loss
                                          (exclusive of    Capital gain
                                         capital gain or      or loss
                                              loss)
------------------------------------------------------------------------
1967..................................                 0               0
1968..................................         ($20,000)               0
1969..................................                 0         $24,000
1970..................................            20,000        (24,000)
------------------------------------------------------------------------

    The net capital loss of $24,000 for 1970 is carried back to 1969 and 
applied against the $24,000 net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) realized in that 
year to the extent of $24,000. The application of the capital loss 
carryback is not limited as it was in Example 4 because such carryback 
neither increases nor produces a net operating loss, as such, for 1969. 
The $20,000 net operating loss for 1968 is then carried forward to 1970 
to eliminate the $20,000 of operating income for that year.
    Example 6. Assume the same facts as in Example 3 but substitute the 
following figures:

------------------------------------------------------------------------
                                        Operating income
                                             or loss
                                          (exclusive of    Capital gain
                                         capital gain or      or loss
                                              loss)
------------------------------------------------------------------------
1967..................................                 0               0
1968..................................                 0               0
1969..................................         ($20,000)       ($24,000)
1970..................................            20,000          20,000
------------------------------------------------------------------------

    The net capital loss of $24,000 for 1969 is carried forward to 1970 
and applied against the $20,000 net capital gain (capital gain net 
income for taxable years beginning after December 31, 1976) realized in 
that year. The unused $4,000 balance of the 1969 net capital loss can be 
carried forward to 1971 and subsequent taxable years to the extent 
provided in subdivision (i)(b) of this subparagraph.

    (b) Taxpayers other than corporations for taxable years beginning 
after December 31, 1963--(1) In general. If a taxpayer other than a 
corporation sustains a net capital loss for any taxable year beginning 
after December 31, 1963, the portion thereof which is a short-term 
capital loss carryover shall be carried over to the succeeding taxable 
year and treated as a short-term capital loss sustained in such 
succeeding taxable year, and the portion thereof which constitutes a 
long-term capital loss carryover shall be carried over to the succeeding 
taxable year and treated as a long-term capital loss sustained in such 
succeeding taxable year. The carryovers are included in the succeeding 
taxable year in the determination of the amount of the short-term 
capital loss, the net short-term capital gain or loss, the long-term 
capital loss, and the net long-term capital gain or loss in such year, 
the net capital loss in such year, and the capital loss carryovers from 
such year. For purposes of this subparagraph:
    (i) A short-term capital loss carryover is the excess of the net 
short-term capital loss for the taxable year over the net long-term 
capital gain for such year, and

[[Page 313]]

    (ii) A long-term capital loss carryover is the excess of the net 
long-term capital loss for the taxable year over the net short-term 
capital gain for such year.
    (2) Special rules for determining a net short-term capital gain or 
loss for purposes of carryover--(i) Taxable years beginning after 
December 31, 1963, and before January 1, 1970. In determining a net 
short-term capital gain or loss of a taxable year beginning after 
December 31, 1963, and before January 1, 1970, for purposes of computing 
a short-term or long-term capital loss carryover to the succeeding 
taxable year, an amount equal to the additional allowance deductible 
under section 1211(b) for the taxable year (determined as provided in 
section 1211(b), as in effect for taxable years beginning before January 
1, 1970, and Sec.  1.1211-1(b)(5)) is treated as a short-term capital 
gain occurring in such year.
    (ii) Taxable years beginning after December 31, 1969. In determining 
a net short-term capital gain or loss of a taxable year beginning after 
December 31, 1969:
    (a) For purposes of computing a short-term capital loss carryover to 
the succeeding taxable year, an amount equal to the additional allowance 
for the taxable year (determined as provided in section 1211(b) and 
Sec.  1.1211-1(b)(2)) is treated as a short-term capital gain occurring 
in such year, and
    (b) For purposes of computing a long-term capital loss carryover to 
the succeeding taxable year, an amount equal to the sum of the 
additional allowance for the taxable year (determined as provided in 
section 1211(b) and Sec.  1.1211-1(b)(2)), plus the excess of such 
additional allowance over the net short-term capital loss (determined 
without regard to section 1212(b)(2) for such year) is treated as a 
short-term capital gain in such year.

The rules provided in this subdivision are for the purpose of taking 
into account the additional allowance deductible for the current taxable 
year under section 1211(b) and Sec.  1.1211-1(b)(2) in determining the 
amount and character of capital loss carryovers from the current taxable 
year to the succeeding taxable year. Their practical application to a 
determination of the amount and character of capital loss carryovers 
from the current taxable year to the succeeding taxable year involves 
identification of the net long-term and net short-term capital loss 
components of the additional allowance deductible in the current taxable 
year as provided by Sec.  1.1211-1(b)(2)(iii). To the extent that the 
additional allowance is composed of net short-term capital losses, such 
losses are treated as a short-term capital gain in the current taxable 
year in determining the capital loss carryovers to the succeeding year. 
To the extent that the additional allowance is composed of net long-term 
capital losses applied pursuant to the provisions of Sec.  1.1211-
1(b)(2)(iii), an amount equal to twice the amount of such component of 
the additional allowance is treated as a short-term capital gain in the 
current taxable year. See paragraph (4) of this section for transitional 
rules if any part of the additional allowance is composed of net long-
term capital losses carried to the current taxable year from a taxable 
year beginning before January 1, 1970.
    (3) Transitional rule for net capital losses sustained in a taxable 
year beginning before January 1, 1964. A taxpayer other than a 
corporation sustaining a net capital loss for any taxable year beginning 
before January 1, 1964, shall treat as a short-term capital loss in the 
first taxable year beginning after December 31, 1963, any amount which 
would be treated as a short-term capital loss in such year under 
subchapter P of chapter 1 of the Code as in effect immediately before 
the enactment of the Revenue Act of 1964.
    (4) Transitional rule for net long-term capital losses sustained in 
a taxable year beginning before January 1, 1970. In the case of a net 
long-term capital loss sustained by a taxpayer other than a corporation 
in a taxable year beginning prior to January 1, 1970 (referred to in 
this section as a pre-1970 taxable year) which is carried over and 
treated as a long-term capital loss in the first taxable year beginning 
after December 31, 1969 (referred to in this section as a post-1969 
taxable year), the transitional additional allowance deductible under 
section 1211(b) for the taxable year shall be determined by application 
of

[[Page 314]]

section 1211(b) as in effect for pre-1970 taxable years and Sec.  
1.1211-1(b)(3), and the amount of such long-term capital loss carried 
over and treated as a long-term capital loss in the succeeding taxable 
year shall be determined by application of section 1212(b)(1) as in 
effect for pre-1970 taxable years and subparagraph (2)(i) of this 
paragraph (instead of under sections 1211(b) and 1212(b)(1) as in effect 
for post-1969 taxable years and Sec.  1.1211-1(b)(2) and subparagraph 
(2)(ii) of this paragraph, respectively) but only to the extent that 
such pre-1970 long-term capital loss constitutes a transitional net 
long-term capital loss component (determined as provided in Sec.  
1.1211-1(b)(3)(ii)) in the taxable year to which such pre-1970 long-term 
capital loss is carried. Thus, for purposes of paragraph (2) of this 
section, to the extent that a component of the transitional additional 
allowance deductible for a post-1969 taxable year under section 1211(b) 
and Sec.  1.1211-1(b)(3)(i) is a transitional net long-term capital loss 
component carried over to such post-1969 taxable year, such component 
shall be treated as a short-term capital gain in determining the amount 
and character of capital loss carryovers from such post-1969 taxable 
year to the succeeding taxable year. Such component shall be so treated 
as a short-term capital gain in full on a dollar-for-dollar basis and 
shall not be doubled for this purpose as is provided by subdivision (ii) 
of paragraph (2) of this section in the case of a component of the 
additional allowance made up of net long-term capital losses applied 
pursuant to the provisions of Sec.  1.1211-1(b)(2)(iii). The 
transitional rule provided in this paragraph does not apply to a 
determination of the character of capital losses (as long-term or short-
term) actually deductible for the current taxable year under section 
1211(b) and Sec.  1.1211-1(b).
    (5) Examples. The application of this paragraph can be illustrated 
by the following examples:

    Example 1. For the taxable year 1971, an unmarried individual has 
taxable income for purposes of section 1211(b) of $8,000, a long-term 
capital loss of $2,000, and no other capital gains or losses. $1,000 
(one-half) of the net long-term capital loss is deductible in 1971 as 
the additional allowance deductible under section 1211(b). No amount of 
capital loss remains to be carried over to the succeeding taxable year.
    Example 2. For the taxable year 1972, the same unmarried individual 
has taxable income for purposes of section 1211(b) of $8,000, a long-
term capital loss of $3,000 and no other capital gains or losses. $1,500 
(one-half of the excess net capital loss) is deductible in 1972, but 
limited to the $1,000 maximum additional allowance deductible under 
section 1211(b). By application of section 1212(b)(1), he will carry 
over to 1973 a long-term capital loss of $1,000 determined as follows:

Net long-term capital loss...................................   ($3,000)
Additional allowance deductible under section          $1,000
 1211(b)..........................................
Excess of additional allowance over net short-term      1,000
 capital loss (determined without regard to
 section 1212(b)(2)(B)(i))........................
                                                   -----------
Total amount treated as short-term capital gain under              2,000
 1212(b)(2)(B) for purposes of determining carryover.........
                                                   ============
Long-term capital loss carryover to 1973.....................    (1,000)
                                                   ============
 


If, in 1973, he had taxable income for purposes of section 1211(b) of 
$8,000, but no capital gains or losses, $500 (one-half) of the net long-
term capital loss carryover from 1972 would be deductible in 1973 as the 
additional allowance deductible under section 1211(b). No amount of 
capital loss would be carried over to 1974.
    Example 3. For the taxable year 1971, an unmarried individual has 
taxable income for purposes of section 1211(b) of $9,000, a $500 short-
term capital gain, a $700 short-term capital loss, a $1,000 long-term 
capital gain and a $1,700 long-term capital loss. He will offset $1,500 
of capital losses against capital gains. The excess net capital loss of 
$900 is deductible in 1971 to the extent of a $550 additional allowance 
deductible under 1211(b) which is smaller than both $1,000 and taxable 
income for purposes of section 1211(b), determined as follows:

Losses allowed to the extent of gains........................   ($1,500)
                                                   ============
Amount allowed under section 1211(b)(1)(C):
  (i) Excess of net short-term capital loss over net long-         (200)
   term capital gain.........................................
  (ii) One-half of the excess of net long-term capital loss        (350)
   over net short-term capital gain..........................
                                                   ------------
Additional allowance deductible under section 1211(b)........        550
                                                   ============
 


The total amount treated as short-term capital gain under section 
1212(b)(2)(B) for purposes of determining any carryover to the 
succeeding taxable year exceeds $900. No amount of net capital loss 
remains to be carried over to the succeeding taxable year.

[[Page 315]]

    Example 4. If in example (3) above, the long-term capital loss had 
been $2,800, the taxpayer would carry over $200 of long-term capital 
loss to 1972, determined as follows:

Losses allowed to extent of gains............................   ($1,500)
Amount allowed under section 1211(b)(1) (B) and (C):
    (i) Excess of net short-term capital loss over net long-       (200)
     term capital gain.......................................
    (ii) One-half the excess of net long-term capital loss         (900)
     over net short-term capital gain........................
 


as limited by 1211(b)(1)(B) to an additional allowance of $1,000.

Carryover under section 1212(b)(1):
    Net long-term capital loss for 1971......................   ($1,800)
    Additional allowance under section 1211(b)(1)(B).........      1,000
    Excess of additional allowance deductible under section          800
     1211(b) over net short-term capital loss determined
     without regard to section 1212(b)(2)(B)(i) ($1,000 less
     $200)...................................................
                                                   ------------
    Total amount treated as short-term capital gain under          1,800
     section 1212(b)(2)(B) for purposes of determining
     carryover...............................................
    Short-term capital gain for 1971.........................        500
                                                   ------------
    Total short-term capital gain............................      2,300
    Short-term capital loss for 1971.........................      (700)
                                                   ------------
    Net short-term capital gain..............................      1,600
                                                   ============
    Long-term capital loss carryover ($1,800 less $1,600)....        200
 

    Example 5. For 1969, an unmarried individual has taxable income for 
purposes of section 1211(b) of $8,000, a long-term capital loss of 
$3,000, and no other capital gains or losses. He is allowed to deduct in 
1969 $1,000 as the additional allowance deductible under section 1211(b) 
(as in effect for pre-1970 taxable years) and to carry over to 1970, a 
long-term capital loss of $2,000 under section 1212(b) (as in effect for 
pre-1970 taxable years).
    If, in 1970, the same unmarried individual with taxable income for 
purposes of section 1211(b) of $8,000, has no capital gains or losses, 
he would deduct $1,000 of his pre- 1970 capital loss carryover as the 
transitional additional allowance deductible under section 1211(b) (as 
in effect for pre-1970 years) and carry over under section 1212(b)(1) 
(as in effect for pre-1970 taxable years) to 1971 the remaining $1,000 
as a pre-1970 long-term capital loss.
    If, in 1970, the same individual instead has a long-term capital 
gain of $2,500, and a long-term capital loss of $1,500, he would net 
these two items with the $2,000 carried to 1970 as a long-term capital 
loss. Thus, he would have a net long-term capital loss for 1970 of 
$1,000 which is deductible in 1970 as the transitional additional 
allowance deductible under section 1211(b). He would have no amount to 
carry over under section 1212(b)(1) to 1971.
    If, in 1970, the same individual instead has a long-term capital 
loss of $1,200, and a long-term capital gain of $200, resulting in a net 
long-term capital loss of $3,000 when netted with the $2,000 carried to 
1970 as a long-term capital loss, he would deduct $1,000 in respect of 
his pre-1970 long-term capital loss carryover as the transitional 
additional allowance deductible under section 1211(b) (as in effect for 
pre-1970 taxable years) and carry over under section 1212(b)(1) (as in 
effect for pre-1970 taxable years) to 1971 the remaining $1,000 of the 
pre-1970 component of his long-term capital loss carryover, and the 
$1,000 net long-term capital loss actually sustained in 1970 as the 
second component of his long-term capital loss carryover.
    Example 6. For 1970 a married individual filing a separate return 
has taxable income of $8,000, a long-term capital loss of $3,500 and a 
short-term capital gain of $3,000. He also has a pre-1970 short-term 
capital loss of $2,000 which is carried to 1970. The $3,000 short-term 
capital gain realized in 1970 would first be reduced by the $2,000 
short-term capital loss carryover, and then the remaining $1,000 balance 
of the short-term capital gain would be offset against the $3,500 long-
term capital loss, producing a net long-term capital loss of $2,500, no 
part of which is a net long-term capital loss carried over from 1969. 
However, under the special rule of Sec.  1.1211-1(b)(7)(ii) in 1970, the 
taxpayer would deduct as the additional allowance deductible under 
section 1211(b), the $500 limitation in Sec.  1.1211-1(b)(2)(ii) in the 
case of a married taxpayer filing a separate return in a taxable year 
ending after December 31, 1969, plus the transitional net short-term 
capital loss component of $2,000 computed under Sec.  1.1211-
1(b)(3)(iv), but limited to a total deduction of $1,000. The $1,000 
additional allowance deductible under section 1211(b) would absorb 
$2,000 of the $2,500 net long-term capital loss, and he would carry the 
unused $500 balance of such loss to 1971 for use in that year.
    Example 7. For 1970, an unmarried individual filing a separate 
return has taxable income for purposes of section 1211(b) of $8,000, and 
a long-term capital loss of $2,000. He also has a pre-1970 long-term 
capital loss of $2,500 which is carried to 1970. In 1970, the taxpayer 
would deduct as the transitional additional allowance deductible under 
section 1211(b) $1,000, absorbing $1,000 of the pre-1970 long-term 
capital loss of $2,500. He would carry to 1971 the unused $1,500 balance 
of his pre-1970 long-term capital loss plus the 1970 long-term capital 
loss of $2,000, or a total of $3,500, for use in 1971.
    For 1971, the same taxpayer filing a separate return with taxable 
income for purposes of section 1211(b) of $8,000, has a $3,600 long-term 
capital gain and a $2,200 long-term capital loss. When these gains and 
losses are combined with the long-term capital loss carryover from 1970 
of $3,500, a net long-term

[[Page 316]]

capital loss of $2,100 results. He would deduct $1,000 as the 
transitional additional allowance deductible under section 1211(b). The 
$1,000 additional allowance would absorb $100 of the unused pre-1970 
long-term capital loss carryover of $1,500 plus $1,800 of the unused 
post-1969 long-term capital loss carryover of $2,100 (the amount of the 
1971 net long-term capital loss necessary to make up the remaining $900 
balance of the additional allowance). Although a component of the 1971 
net long-term capital loss is the unused pre-1970 long-term capital loss 
carryover of $1,500, only $100 of this carryover is available for use in 
full on a dollar-for-dollar basis in computing the transitional 
additional allowance for 1971 since it only exceeds by that amount the 
$1,400 net capital gain (capital gain net income for taxable years 
beginning after December 31, 1976) actually realized in 1971 all of 
which is net long-term capital gain (long-term capital gain of $3,600 
reduced by long-term capital loss of $2,200). See Sec.  1.1221-
1(b)(3)(ii). The taxpayer would carry over to 1972 as a long-term 
capital loss the remaining $200 of the 1971 long-term capital loss.
    Example 8. For 1970, an unmarried individual has taxable income for 
purposes of section 1211(b) of $8,000 and a short-term capital loss of 
$700. He also has a pre-1970 long-term capital loss carryover of $1,200. 
He would deduct $1,000 as the transitional additional allowance 
deductible under section 1211(b). The $1,000 transitional additional 
allowance would be composed of the 1970 short-term capital loss of $700 
and $300 of the pre-1970 long-term capital loss carryover. He would 
carry over to 1971 the unused $900 balance of his $1,200 pre-1970 long-
term capital loss carryover for use in 1971.

    (c) Husband and wife. (1) The following rules shall be applied in 
computing capital loss carryovers by husband and wife:
    (i) If a husband and wife making a joint return for any taxable year 
made separate returns for the preceding year, any capital loss 
carryovers of each spouse from such preceding taxable year may be 
carried forward to the taxable year in accordance with paragraph (a) or 
(b) of this section.
    (ii) If a joint return was made for the preceding taxable year, any 
capital loss carryover from such preceding taxable year may be carried 
forward to the taxable year in accordance with paragraph (a) or (b) of 
this section.
    (iii) If a husband and wife make separate returns for the first 
taxable year beginning after December 31, 1963, or any prior taxable 
year, and they made a joint return for the preceding taxable year, any 
capital loss carryover from such preceding taxable year shall be 
allocated to the spouses on the basis of their individual net capital 
loss which gave rise to such capital loss carryover. The capital loss 
carryover so allocated to each spouse may be carried forward by such 
spouse to the taxable year in accordance with paragraph (a) or (b) of 
this section.
    (iv) If a husband and wife making separate returns for any taxable 
year following the first taxable year beginning after December 31, 1963, 
made a joint return for the preceding taxable year, any long-term or 
short-term capital loss carryovers shall be allocated to the spouses on 
the basis of their individual net long-term and net short-term capital 
losses for the preceding taxable year which gave rise to such capital 
loss carryovers, and the portions of the long-term or short-term capital 
loss carryovers so allocated to each spouse may be carried forward by 
such spouse to the taxable year in accordance with paragraph (b) of this 
section.
    (v) If separate returns are made both for the taxable year and the 
preceding taxable year, any capital loss carryover of each spouse may be 
carried forward by such spouse in accordance with paragraph (a) or (b) 
of this section.
    (2) The provisions of subparagraph (1) (i), (iii), and (iv) of this 
paragraph may be illustrated by the following examples:

    Example 1. If H and W, husband and wife, make a joint return for 
1955, having made separate returns for 1954 in which H had a net capital 
loss of $3,000 and W had a net capital loss of $2,000, in their joint 
return for 1955 they would have a short-term capital loss of $5,000 (the 
sum of their separate capital loss carryovers from 1954), allowable in 
accordance with paragraph (a) of this section. If, on the other hand, 
they make separate returns in 1955 following a joint return in 1954 in 
which their net capital loss was $5,000 allocable $3,000 to H and $2,000 
to W, the carryover of H as a short-term capital loss for the purpose of 
his 1955 separate return would be $3,000 and that of W for her separate 
return would be $2,000, each allowable in accordance with paragraph (a) 
of this section.
    Example 2. H and W, husband and wife, make separate returns for 1966 
following a

[[Page 317]]

joint return for 1965. The capital gains and losses incurred by H and W 
in 1965, including those carried over by them to 1965, were as follows:

------------------------------------------------------------------------
                                                       H           W
------------------------------------------------------------------------
Long-term capital gains.........................      $8,000      $9,000
Long-term capital losses........................    (15,000)     (6,000)
Short-term capital gains........................      10,000       4,000
Short-term capital losses.......................    (19,000)     (5,000)
------------------------------------------------------------------------


Thus, in 1965 H and W had a net capital loss of $14,000 on their joint 
return. Of this amount, $4,000 was a long-term capital loss carryover, 
and $10,000 was a short-term capital loss carryover, determined in 
accordance paragraph (b) of this section. H's net long-term capital loss 
was $7,000 for 1965. This amount was offset on the joint return by W's 
net long-term capital gain of $3,000. Thus, H may carry over to his 
separate return for 1966, a long-term capital loss carryover of $4,000. 
H and W may carry over to their separate returns for 1966, as short-term 
capital loss carryovers, the amounts of their respective net short-term 
losses from 1965, $9,000 and $1,000.

[T.D. 6828, 30 FR 7806, June 17, 1965, as amended by T.D. 6867, 30 FR 
15095, Dec. 7, 1965; T.D. 7301, 39 FR 968, Jan. 4, 1974; 39 FR 2758, 
Jan. 24, 1974; T.D. 7659, 44 FR 73019, Dec. 17, 1979; T.D. 7728, 45 FR 
72650, Nov. 3, 1980]

         General Rules for Determining Capital Gains and Losses



Sec.  1.1221-1  Meaning of terms.

    (a) The term capital assets includes all classes of property not 
specifically excluded by section 1221. In determining whether property 
is a capital asset, the period for which held is immaterial.
    (b) Property used in the trade or business of a taxpayer of a 
character which is subject to the allowance for depreciation provided in 
section 167 and real property used in the trade or business of a 
taxpayer is excluded from the term capital assets. Gains and losses from 
the sale or exchange of such property are not treated as gains and 
losses from the sale or exchange of capital assets, except to the extent 
provided in section 1231. See Sec.  1.1231-1. Property held for the 
production of income, but not used in a trade or business of the 
taxpayer, is not excluded from the term capital assets even though 
depreciation may have been allowed with respect to such property under 
section 23(l) of the Internal Revenue Code of 1939 before its amendment 
by section 121(c) of the Revenue Act of 1942 (56 Stat. 819). However, 
gain or loss upon the sale or exchange of land held by a taxpayer 
primarily for sale to customers in the ordinary course of his business, 
as in the case of a dealer in real estate, is not subject to the 
provisions of subchapter P (section 1201 and following), chapter 1 of 
the Code.
    (c)(1) A copyright, a literary, musical, or artistic composition, 
and similar property are excluded from the term capital assets if held 
by a taxpayer whose personal efforts created such property, or if held 
by a taxpayer in whose hands the basis of such property is determined, 
for purposes of determining gain from a sale or exchange, in whole or in 
part by reference to the basis of such property in the hands of a 
taxpayer whose personal efforts created such property. For purposes of 
this subparagraph, the phrase similar property includes for example, 
such property as a theatrical production, a radio program, a newspaper 
cartoon strip, or any other property eligible for copyright protection 
(whether under statute or common law), but does not include a patent or 
an invention, or a design which may be protected only under the patent 
law and not under the copyright law.
    (2) In the case of sales and other dispositions occurring after July 
25, 1969, a letter, a memorandum, or similar property is excluded from 
the term capital asset if held by (i) a taxpayer whose personal efforts 
created such property, (ii) a taxpayer for whom such property was 
prepared or produced, or (iii) a taxpayer in whose hands the basis of 
such property is determined, for purposes of determining gain from a 
sale or exchange, in whole or in part by reference to the basis of such 
property in the hands of a taxpayer described in subdivision (i) or (ii) 
of this subparagraph. In the case of a collection of letters, 
memorandums, or similar property held by a person who is a taxpayer 
described in subdivision (i), (ii), or (iii) of this subparagraph as to 
some of such letters, memorandums, or similar property but not as to 
others, this subparagraph shall apply only to those letters, 
memorandums, or similar property as

[[Page 318]]

to which such person is a taxpayer described in such subdivision. For 
purposes of this subparagraph, the phrase similar property includes, for 
example, such property as a draft of a speech, a manuscript, a research 
paper, an oral recording of any type, a transcript of an oral recording, 
a transcript of an oral interview or of dictation, a personal or 
business diary, a log or journal, a corporate archive, including a 
corporate charter, office correspondence, a financial record, a drawing, 
a photograph, or a dispatch. A letter, memorandum, or property similar 
to a letter or memorandum, addressed to a taxpayer shall be considered 
as prepared or produced for him. This subparagraph does not apply to 
property, such as a corporate archive, office correspondence, or a 
financial record, sold or disposed of as part of a going business if 
such property has no significant value separate and apart from its 
relation to and use in such business; it also does not apply to any 
property to which subparagraph (1) of this paragraph applies (i.e., 
property to which section 1221(3) applied before its amendment by 
section 514(a) of the Tax Reform Act of 1969 (83 Stat. 643)).
    (3) For purposes of this paragraph, in general, property is created 
in whole or in part by the personal efforts of a taxpayer if such 
taxpayer performs literary, theatrical, musical, artistic, or other 
creative or productive work which affirmatively contributes to the 
creation of the property, or if such taxpayer directs and guides others 
in the performance of such work. A taxpayer, such as corporate 
executive, who merely has administrative control of writers, actors, 
artists, or personnel and who does not substantially engage in the 
direction and guidance of such persons in the performance of their work, 
does not create property by his personal efforts. However, for purposes 
of subparagraph (2) of this paragraph, a letter or memorandum, or 
property similar to a letter or memorandum, which is prepared by 
personnel who are under the administrative control of a taxpayer, such 
as a corporate executive, shall be deemed to have been prepared or 
produced for him whether or not such letter, memorandum, or similar 
property is reviewed by him.
    (4) For the application of section 1231 to the sale or exchange of 
property to which this paragraph applies, see Sec.  1.1231-1. For the 
application of section 170 to the charitable contribution of property to 
which this paragraph applies, see section 170(e) and the regulations 
thereunder.
    (d) Section 1221(4) excludes from the definition of capital asset 
accounts or notes receivable acquired in the ordinary course of trade or 
business for services rendered or from the sale of stock in trade or 
inventory or property held for sale to customers in the ordinary course 
of trade or business. Thus, if a taxpayer acquires a note receivable for 
services rendered, reports the fair market value of the note as income, 
and later sells the note for less than the amount previously reported, 
the loss is an ordinary loss. On the other hand, if the taxpayer later 
sells the note for more than the amount originally reported, the excess 
is treated as ordinary income.
    (e) Obligations of the United States or any of its possessions, or 
of a State or Territory, or any political subdivision thereof, or of the 
District of Columbia, issued on or after March 1, 1941, on a discount 
basis and payable without interest at a fixed maturity date not 
exceeding one year from the date of issue, are excluded from the term 
capital assets. An obligation may be issued on a discount basis even 
though the price paid exceeds the face amount. Thus, although the Second 
Liberty Bond Act (31 U.S.C. 754) provides that United States Treasury 
bills shall be issued on a discount basis, the issuing price paid for a 
particular bill may, by reason of competitive bidding, actually exceed 
the face amount of the bill. Since the obligations of the type described 
in this paragraph are excluded from the term capital assets, gains or 
losses from the sale or exchange of such obligations are not subject to 
the limitations provided in such subchapter P. It is, therefore, not 
necessary for a taxpayer (other than a life insurance company taxable 
under part I (section 801 and following), subchapter L, chapter 1 of the 
Code, as amended by the Life Insurance Company Tax Act of 1955 (70 Stat. 
36), and, in the case of taxable years beginning

[[Page 319]]

before January 1, 1955, subject to taxation only on interest, dividends, 
and rents) to segregate the original discount accrued and the gain or 
loss realized upon the sale or other disposition of any such obligation. 
See section 454(b) with respect to the original discount accrued. The 
provisions of this paragraph may be illustrated by the following 
examples:

    Example 1. A (not a life insurance company) buys a $100,000, 90-day 
Treasury bill upon issuance for $99,998. As of the close of the forty-
fifth day of the life of such bill, he sells it to B (not a life 
insurance company) for $99,999.50. The entire net gain to A of $1.50 may 
be taken into account as a single item of income, without allocating $1 
to interest and $0.50 to gain. If B holds the bill until maturity his 
net gain of $0.50 may similarly be taken into account as a single item 
of income, without allocating $1 to interest and $0.50 to loss.
    Example 2. The facts in this example are the same as in example (1) 
except that the selling price to B is $99,998.50. The net gain to A of 
$0.50 may be taken into account without allocating $1 to interest and 
$0.50 to loss, and, similarly, if B holds the bill until maturity his 
entire net gain of $1.50 may be taken into account as a single item of 
income without allocating $1 to interest and $0.50 to gain.

[T.D. 6500, 25 FR 12003, Nov. 26, 1960, as amended by T.D. 7369, 40 FR 
29840, July 16, 1975]



Sec.  1.1221-2  Hedging transactions.

    (a) Treatment of hedging transactions--(1) In general. This section 
governs the treatment of hedging transactions under section 1221(a)(7). 
Except as provided in paragraph (g)(2) of this section, the term capital 
asset does not include property that is part of a hedging transaction 
(as defined in paragraph (b) of this section).
    (2) Short sales and options. This section also governs the character 
of gain or loss from a short sale or option that is part of a hedging 
transaction. Except as provided in paragraph (g)(2) of this section, 
gain or loss on a short sale or option that is part of a hedging 
transaction (as defined in paragraph (b) of this section) is ordinary 
income or loss.
    (3) Exclusivity. If a transaction is not a hedging transaction as 
defined in paragraph (b) of this section, gain or loss from the 
transaction is not made ordinary on the grounds that property involved 
in the transaction is a surrogate for a noncapital asset, that the 
transaction serves as insurance against a business risk, that the 
transaction serves a hedging function, or that the transaction serves a 
similar function or purpose.
    (4) Coordination with section 988. This section does not apply to 
determine the character of gain or loss realized on a section 988 
transaction as defined in section 988(c)(1) or realized with respect to 
any qualified fund as defined in section 988(c)(1)(E)(iii).
    (b) Hedging transaction defined. Section 1221(b)(2)(A) provides that 
a hedging transaction is any transaction that a taxpayer enters into in 
the normal course of the taxpayer's trade or business primarily--
    (1) To manage risk of price changes or currency fluctuations with 
respect to ordinary property (as defined in paragraph (c)(2) of this 
section) that is held or to be held by the taxpayer;
    (2) To manage risk of interest rate or price changes or currency 
fluctuations with respect to borrowings made or to be made, or ordinary 
obligations incurred or to be incurred, by the taxpayer; or
    (3) To manage such other risks as the Secretary may prescribe in 
regulations (see paragraph (d)(6) of this section).
    (c) General rules--(1) Normal course. Solely for purposes of 
paragraph (b) of this section, if a transaction is entered into in 
furtherance of a taxpayer's trade or business, the transaction is 
entered into in the normal course of the taxpayer's trade or business. 
This rule includes managing risks relating to the expansion of an 
existing business or the acquisition of a new trade or business.
    (2) Ordinary property and obligations. Property is ordinary property 
to a taxpayer only if a sale or exchange of the property by the taxpayer 
could not produce capital gain or loss under any circumstances. Thus, 
for example, property used in a trade or business within the meaning of 
section 1231(b) (determined without regard to the holding period 
specified in that section) is not ordinary property. An obligation is an 
ordinary obligation if performance or termination of the obligation by 
the taxpayer could not produce

[[Page 320]]

capital gain or loss. For purposes of this paragraph (c)(2), the term 
termination has the same meaning as it does in section 1234A.
    (3) Hedging an aggregate risk. The term hedging transaction includes 
a transaction that manages an aggregate risk of interest rate changes, 
price changes, and/or currency fluctuations only if all of the risk, or 
all but a de minimis amount of the risk, is with respect to ordinary 
property, ordinary obligations, or borrowings.
    (4) Managing risk--(i) In general. Whether a transaction manages a 
taxpayer's risk is determined based on all of the facts and 
circumstances surrounding the taxpayer's business and the transaction. 
Whether a transaction manages a taxpayer's risk may be determined on a 
business unit by business unit basis (for example by treating particular 
groups of activities, including the assets and liabilities attributable 
to those activities, as separate business units), provided that the 
business unit is within a single entity or consolidated return group 
that adopts the single-entity approach. A taxpayer's hedging strategies 
and policies as reflected in the taxpayer's minutes or other records are 
evidence of whether particular transactions were entered into primarily 
to manage the taxpayer's risk.
    (ii) Limitation of risk management transactions to those 
specifically described. Except as otherwise determined by published 
guidance or by private letter ruling, a transaction that is not treated 
as a hedging transaction under paragraph (d) does not manage risk. 
Moreover, a transaction undertaken for speculative purposes will not be 
treated as a hedging transaction.
    (d) Transactions that manage risk--(1) Risk reduction transactions--
(i) In general. A transaction that is entered into to reduce a 
taxpayer's risk, manages a taxpayer's risk.
    (ii) Micro and macro hedges--(A) In general. A taxpayer generally 
has risk of a particular type only if it is at risk when all of its 
operations are considered. Nonetheless, a hedge of a particular asset or 
liability generally will be respected as reducing risk if it reduces the 
risk attributable to the asset or liability and if it is reasonably 
expected to reduce the overall risk of the taxpayer's operations. If a 
taxpayer hedges particular assets or liabilities, or groups of assets or 
liabilities, and the hedges are undertaken as part of a program that, as 
a whole, is reasonably expected to reduce the overall risk of the 
taxpayer's operations, the taxpayer generally does not have to 
demonstrate that each hedge that was entered into pursuant to the 
program reduces its overall risk.
    (B) Example. The following example illustrates the rules stated in 
paragraph (d)(1)(ii)(A) of this section:

    Example. Corporation X manages its business operations by treating 
particular groups of activities, including the assets and liabilities 
attributable to those assets, as separate business units. A separate set 
of books and records is maintained with respect to the activities, 
assets and liabilities of separate business unit y. As part of a risk 
management program that Corporation X reasonably expects to reduce the 
overall risks of its business operations, Corporation X enters into 
hedges to reduce the risks of separate business unit y. Corporation X 
may demonstrate that the hedges reduce risk by taking into account only 
the activities, assets and liabilities of business unit y.

    (iii) Written options. A written option may reduce risk. For 
example, in appropriate circumstances, a written call option with 
respect to assets held by a taxpayer or a written put option with 
respect to assets to be acquired by a taxpayer may be a hedging 
transaction. See also paragraph (d)(3) of this section.
    (iv) Fixed-to-floating price hedges. Under the principles of 
paragraph (d)(1)(ii)(A) of this section, a transaction that economically 
converts a price from a fixed price to a floating price may reduce risk. 
For example, a taxpayer with a fixed cost for its inventory may be at 
risk if the price at which the inventory can be sold varies with a 
particular factor. Thus, for such a taxpayer a transaction that converts 
its fixed price to a floating price may be a hedging transaction.
    (2) Interest rate conversions. A transaction that economically 
converts an interest rate from a fixed rate to a floating rate or that 
converts an interest rate from a floating rate to a fixed rate manages 
risk.

[[Page 321]]

    (3) Transactions that counteract hedging transactions. If a 
transaction is entered into primarily to offset all or any part of the 
risk management effected by one or more hedging transactions, the 
transaction is a hedging transaction. For example, if a written option 
is used to reduce or eliminate the risk reduction obtained from another 
position such as a purchased option, then it may be a hedging 
transaction.
    (4) Recycling. A taxpayer may enter into a hedging transaction by 
using a position that was a hedge of one asset or liability as a hedge 
of another asset or liability (recycling).
    (5) Transactions not entered into primarily to manage risk--(i) 
Rule. Except as otherwise determined in published guidance or private 
letter ruling, the purchase or sale of a debt instrument, an equity 
security, or an annuity contract is not a hedging transaction even if 
the transaction limits or reduces the taxpayer's risk with respect to 
ordinary property, borrowings, or ordinary obligations. In addition, the 
Commissioner may determine in published guidance that other transactions 
are not hedging transactions.
    (ii) Examples. The following examples illustrate the rule stated in 
paragraph (d)(5)(i) of this section:

    Example 1. Taxpayer borrows money and agrees to pay a floating rate 
of interest. Taxpayer purchases debt instruments that bear a comparable 
floating rate. Although taxpayer's interest rate risk from the floating 
rate borrowing may be reduced by the purchase of the debt instruments, 
the acquisition of the debt instruments is not a hedging transaction, 
because the transaction is not entered into primarily to manage the 
taxpayer's risk.
    Example 2. Taxpayer undertakes obligations to pay compensation in 
the future. The amount of the future compensation payments is adjusted 
as if amounts were invested in a specified mutual fund and were 
increased or decreased by the earnings, gains and losses that would 
result from such an investment. Taxpayer invests funds in the shares of 
the mutual fund. Although the investment in shares of the mutual fund 
reduces the taxpayer's risk of fluctuation in the amount of its 
obligation to employees, the investment was not made primarily to manage 
the taxpayer's risk. Accordingly, the transaction is not a hedging 
transaction.
    Example 3. Taxpayer provides a nonqualified retirement plan for 
employees that is structured like a defined contribution plan. Based on 
a schedule that takes into account an employee's monthly salary and 
years of service with the taxpayer, the taxpayer makes monthly credits 
to an account for each employee. Each employee may designate that the 
account will be treated as if it were used to pay premiums on a variable 
annuity contract issued by the M insurance company with a value that 
reflects a specified investment option. M offers a number of investment 
options for its variable annuity contracts. Taxpayer invests funds in M 
company variable annuity contracts that parallel the investment options 
selected by the employees. The investment is not made primarily to 
manage the taxpayer's risk and is not a hedging transaction.

    (6) Hedges of other risks. The Commissioner may, by published 
guidance, determine that hedging transactions include transactions 
entered into to manage risks other than interest rate or price changes, 
or currency fluctuations.
    (7) Miscellaneous provision--(i) Extent of risk management. A 
taxpayer may hedge all or any portion of its risk for all or any part of 
the period during which it is exposed to the risk.
    (ii) Number of transactions. The fact that a taxpayer frequently 
enters into and terminates positions (even if done on a daily or more 
frequent basis) is not relevant to whether these transactions are 
hedging transactions. Thus, for example, a taxpayer hedging the risk 
associated with an asset or liability may frequently establish and 
terminate positions that hedge that risk, depending on the extent the 
taxpayer wishes to be hedged. Similarly, if a taxpayer maintains its 
level of risk exposure by entering into and terminating a large number 
of transactions in a single day, its transactions may nonetheless 
qualify as hedging transactions.
    (e) Hedging by members of a consolidated group--(1) General rule: 
single-entity approach. For purposes of this section, the risk of one 
member of a consolidated group is treated as the risk of the other 
members as if all of the members of the group were divisions of a single 
corporation. For example, if any member of a consolidated group hedges 
the risk of another member of the group by entering into a transaction 
with a third party, that transaction may potentially qualify as a 
hedging transaction. Conversely, intercompany transactions are not 
hedging

[[Page 322]]

transactions because, when considered as transactions between divisions 
of a single corporation, they do not manage the risk of that single 
corporation.
    (2) Separate-entity election. In lieu of the single-entity approach 
specified in paragraph (e)(1) of this section, a consolidated group may 
elect separate-entity treatment of its hedging transactions. If a group 
makes this separate-entity election, the following rules apply:
    (i) Risk of one member not risk of other members. Notwithstanding 
paragraph (e)(1) of this section, the risk of one member is not treated 
as the risk of other members.
    (ii) Intercompany transactions. An intercompany transaction is a 
hedging transaction (an intercompany hedging transaction) with respect 
to a member of a consolidated group if and only if it meets the 
following requirements--
    (A) The position of the member in the intercompany transaction would 
qualify as a hedging transaction with respect to the member (taking into 
account paragraph (e)(2)(i) of this section) if the member had entered 
into the transaction with an unrelated party; and
    (B) The position of the other member (the marking member) in the 
transaction is marked to market under the marking member's method of 
accounting.
    (iii) Treatment of intercompany hedging transactions. An 
intercompany hedging transaction (that is, a transaction that meets the 
requirements of paragraphs (e)(2)(ii)(A) and (B) of this section) is 
subject to the following rules--
    (A) The character and timing rules of Sec.  1.1502-13 do not apply 
to the income, deduction, gain, or loss from the intercompany hedging 
transaction; and
    (B) Except as provided in paragraph (g)(3) of this section, the 
character of the marking member's gain or loss from the transaction is 
ordinary.
    (iv) Making and revoking the election. Unless the Commissioner 
otherwise prescribes, the election described in paragraph (e)(2) of this 
section must be made in a separate statement that provides, ``[INSERT 
NAME AND EMPLOYER IDENTIFICATION NUMBER OF COMMON PARENT] HEREBY ELECTS 
THE APPLICATION OF Sec.  1.1221-2(e)(2) (THE SEPARATE-ENTITY 
APPROACH).'' The statement must also indicate the date as of which the 
election is to be effective. The election must be filed by including the 
statement on or with the consolidated group's income tax return for the 
taxable year that includes the first date for which the election is to 
apply. The election applies to all transactions entered into on or after 
the date so indicated. The election may only be revoked with the consent 
of the Commissioner.
    (3) Definitions. For definitions of consolidated group, divisions of 
a single corporation, group, intercompany transactions, and member, see 
section 1502 and the regulations thereunder.
    (4) Examples. General Facts. In these examples, O and H are members 
of the same consolidated group. O's business operations give rise to 
interest rate risk ``A,'' which O wishes to hedge. O enters into an 
intercompany transaction with H that transfers the risk to H. O's 
position in the intercompany transaction is ``B,'' and H's position in 
the transaction is ``C.'' H enters into position ``D'' with a third 
party to reduce the interest rate risk it has with respect to its 
position C. D would be a hedging transaction with respect to risk A if 
O's risk A were H's risk. The following examples illustrate this 
paragraph (e):

    Example 1. Single-entity treatment. (i) General rule. Under 
paragraph (e)(1) of this section, O's risk A is treated as H's risk, and 
therefore D is a hedging transaction with respect to risk A. Thus, the 
character of D is determined under the rules of this section, and the 
income, deduction, gain, or loss from D must be accounted for under a 
method of accounting that satisfies Sec.  1.446-4. The intercompany 
transaction B-C is not a hedging transaction and is taken into account 
under Sec.  1.1502-13.
    (ii) Identification. D must be identified as a hedging transaction 
under paragraph (f)(1) of this section, and A must be identified as the 
hedged item under paragraph (f)(2) of this section. Under paragraph 
(f)(5) of this section, the identification of A as the hedged item can 
be accomplished by identifying the positions in the intercompany 
transaction as hedges or hedged items, as appropriate. Thus, 
substantially contemporaneous with entering into D, H may identify C as 
the hedged item and O may identify B as a hedge and A as the hedged 
item.

[[Page 323]]

    Example 2. Separate-entity election; counterparty that does not mark 
to market. In addition to the General Facts stated above, assume that 
the group makes a separate-entity election under paragraph (e)(2) of 
this section. If H does not mark C to market under its method of 
accounting, then B is not a hedging transaction, and the B-C 
intercompany transaction is taken into account under the rules of 
section 1502. D is not a hedging transaction with respect to A, but D 
may be a hedging transaction with respect to C if C is ordinary property 
or an ordinary obligation and if the other requirements of paragraph (b) 
of this section are met. If D is not part of a hedging transaction, then 
D may be part of a straddle for purposes of section 1092.
[GRAPHIC] [TIFF OMITTED] TR20MR02.002

    Example 3. Separate-entity election; counterparty that marks to 
market. The facts are the same as in Example 2 above, except that H 
marks C to market under its method of accounting. Also assume that B 
would be a hedging transaction with respect to risk A if O had entered 
into that transaction with an unrelated party. Thus, for O, the B-C 
transaction is an intercompany hedging transaction with respect to O's 
risk A, the character and timing rules of Sec.  1.1502-13 do not apply 
to the B-C transaction, and H's income, deduction, gain, or loss from C 
is ordinary. However, other attributes of the items from the B-C 
transaction are determined under Sec.  1.1502-13. D is a hedging 
transaction with respect to C if it meets the requirements of paragraph 
(b) of this section.

    (f) Identification and recordkeeping--(1) Same-day identification of 
hedging transactions. Under section 1221(a)(7), a taxpayer that enters 
into a hedging transaction (including recycling an existing hedging 
transaction) must clearly identify it as a hedging transaction before 
the close of the day on which the taxpayer acquired, originated, or 
entered into the transaction (or recycled the existing hedging 
transaction).
    (2) Substantially contemporaneous identification of hedged item--(i) 
Content of the identification. A taxpayer that enters into a hedging 
transaction must identify the item, items, or aggregate risk being 
hedged. Identification of an item being hedged generally involves 
identifying a transaction that creates risk, and the type of risk that 
the transaction creates. For example, if a taxpayer is hedging the price 
risk with respect to its June purchases of corn inventory, the 
transaction being hedged is the June purchase of corn and the risk is 
price movements in the market where the taxpayer buys its corn. For 
additional rules concerning the content of this identification, see 
paragraph (f)(3) of this section.
    (ii) Timing of the identification. The identification required by 
this paragraph (f)(2) must be made substantially contemporaneously with 
entering into the hedging transaction. An identification is not 
substantially contemporaneous if it is made more than 35 days after 
entering into the hedging transaction.
    (3) Identification requirements for certain hedging transactions. In 
the case of the hedging transactions described in this paragraph (f)(3), 
the identification under paragraph (f)(2) of this section must include 
the information specified.
    (i) Anticipatory asset hedges. If the hedging transaction relates to 
the anticipated acquisition of assets by the taxpayer, the 
identification must include the expected date or dates of acquisition 
and the amounts expected to be acquired.
    (ii) Inventory hedges. If the hedging transaction relates to the 
purchase or sale of inventory by the taxpayer, the identification is 
made by specifying the type or class of inventory to which

[[Page 324]]

the transaction relates. If the hedging transaction relates to specific 
purchases or sales, the identification must also include the expected 
dates of the purchases or sales and the amounts to be purchased or sold.
    (iii) Hedges of debt of the taxpayer--(A) Existing debt. If the 
hedging transaction relates to accruals or payments under an issue of 
existing debt of the taxpayer, the identification must specify the issue 
and, if the hedge is for less than the full issue price or the full term 
of the debt, the amount of the issue price and the term covered by the 
hedge.
    (B) Debt to be issued. If the hedging transaction relates to the 
expected issuance of debt by the taxpayer or to accruals or payments 
under debt that is expected to be issued by the taxpayer, the 
identification must specify the following information: the expected date 
of issuance of the debt; the expected maturity or maturities; the total 
expected issue price; and the expected interest provisions. If the hedge 
is for less than the entire expected issue price of the debt or the full 
expected term of the debt, the identification must also include the 
amount or the term being hedged. The identification may indicate a range 
of dates, terms, and amounts, rather than specific dates, terms, or 
amounts. For example, a taxpayer might identify a transaction as hedging 
the yield on an anticipated issuance of fixed rate debt during the 
second half of its fiscal year, with the anticipated amount of the debt 
between $75 million and $125 million, and an anticipated term of 
approximately 20 to 30 years.
    (iv) Hedges of aggregate risk--(A) Required identification. If a 
transaction hedges aggregate risk as described in paragraph (c)(3) of 
this section, the identification under paragraph (f)(2) of this section 
must include a description of the risk being hedged and of the hedging 
program under which the hedging transaction was entered. This 
requirement may be met by placing in the taxpayer's records a 
description of the hedging program and by establishing a system under 
which individual transactions can be identified as being entered into 
pursuant to the program.
    (B) Description of hedging program. A description of a hedging 
program must include an identification of the type of risk being hedged, 
a description of the type of items giving rise to the risk being 
aggregated, and sufficient additional information to demonstrate that 
the program is designed to reduce aggregate risk of the type identified. 
If the program contains controls on speculation (for example, position 
limits), the description of the hedging program must also explain how 
the controls are established, communicated, and implemented.
    (v) Transactions that counteract hedging transactions. If the 
hedging transaction is described in paragraph (d)(3) of this section, 
the description of the hedging transaction must include an 
identification of the risk management transaction that is being offset 
and the original underlying hedged item.
    (4) Manner of identification and records to be retained--(i) 
Inclusion of identification in tax records. The identification required 
by this paragraph (f) must be made on, and retained as part of, the 
taxpayer's books and records.
    (ii) Presence of identification must be unambiguous. The presence of 
an identification for purposes of this paragraph (f) must be 
unambiguous. The identification of a hedging transaction for financial 
accounting or regulatory purposes does not satisfy this requirement 
unless the taxpayer's books and records indicate that the identification 
is also being made for tax purposes. The taxpayer may indicate that 
individual hedging transactions, or a class or classes of hedging 
transactions, that are identified for financial accounting or regulatory 
purposes are also being identified as hedging transactions for purposes 
of this section.
    (iii) Manner of identification. The taxpayer may separately and 
explicitly make each identification, or, so long as paragraph (f)(4)(ii) 
of this section is satisfied, the taxpayer may establish a system 
pursuant to which the identification is indicated by the type of 
transaction or by the manner in which the transaction is consummated or 
recorded. An identification under this system is made at the later of 
the time that the system is established or the time that the transaction 
satisfies the

[[Page 325]]

terms of the system by being entered, or by being consummated or 
recorded, in the designated fashion.
    (iv) Principles of paragraph (f)(4)(iii) of this section 
illustrated. Paragraphs (f)(4)(iv)(A) through (C) of this section 
illustrate the principles of paragraph (f)(4)(iii) of this section and 
assume that the other requirements of this paragraph (f) are satisfied.
    (A) A taxpayer can make an identification by designating a hedging 
transaction for (or placing it in) an account that has been identified 
as containing only hedges of a specified item (or of specified items or 
specified aggregate risk).
    (B) A taxpayer can make an identification by including and retaining 
in its books and records a statement that designates all future 
transactions in a specified derivative product as hedges of a specified 
item, items, or aggregate risk.
    (C) A taxpayer can make an identification by designating a certain 
mark, a certain form, or a certain legend as meaning that a transaction 
is a hedge of a specified item (or of specified items or a specified 
aggregate risk). Identification can be made by placing the designated 
mark on a record of the transaction (for example, trading ticket, 
purchase order, or trade confirmation) or by using the designated form 
or a record that contains the designated legend.
    (5) Identification of hedges involving members of the same 
consolidated group--(i) General rule: single-entity approach. A member 
of a consolidated group must satisfy the requirements of this paragraph 
(f) as if all of the members of the group were divisions of a single 
corporation. Thus, the member entering into the hedging transaction with 
a third party must identify the hedging transaction under paragraph 
(f)(1) of this section. Under paragraph (f)(2) of this section, that 
member must also identify the item, items, or aggregate risk that is 
being hedged, even if the item, items, or aggregate risk relates 
primarily or entirely to other members of the group. If the members of a 
group use intercompany transactions to transfer risk within the group, 
the requirements of paragraph (f)(2) of this section may be met by 
identifying the intercompany transactions, and the risks hedged by the 
intercompany transactions, as hedges or hedged items, as appropriate. 
Because identification of the intercompany transaction as a hedge serves 
solely to identify the hedged item, the identification is timely if made 
within the period required by paragraph (f)(2) of this section. For 
example, if a member transfers risk in an intercompany transaction, it 
may identify under the rules of this paragraph (f) both its position in 
that transaction and the item, items, or aggregate risk being hedged. 
The member that hedges the risk outside the group may identify under the 
rules of this paragraph (f) both its position with the third party and 
its position in the intercompany transaction. Paragraph (e)(4) Example 1 
of this section illustrates this identification.
    (ii) Rule for consolidated groups making the separate-entity 
election. If a consolidated group makes the separate-entity election 
under paragraph (e)(2) of this section, each member of the group must 
satisfy the requirements of this paragraph (f) as though it were not a 
member of a consolidated group.
    (6) Consistency with section 1256(e)(2). Any identification for 
purposes of section 1256(e)(2) is also an identification for purposes of 
paragraph (f)(1) of this section.
    (g) Effect of identification and non-identification--(1) 
Transactions identified--(i) In general. If a taxpayer identifies a 
transaction as a hedging transaction for purposes of paragraph (f)(1) of 
this section, the identification is binding with respect to gain, 
whether or not all of the requirements of paragraph (f) of this section 
are satisfied. Thus, gain from that transaction is ordinary income. If 
the transaction is not in fact a hedging transaction described in 
paragraph (b) of this section, however, paragraphs (a)(1) and (2) of 
this section do not apply and the character of loss is determined 
without reference to whether the transaction is a surrogate for a 
noncapital asset, serves as insurance against a business risk, serves a 
hedging function, or serves a similar function or purpose. Thus, the 
taxpayer's identification of the transaction as a hedging transaction 
does

[[Page 326]]

not itself make loss from the transaction ordinary.
    (ii) Inadvertent identification. Notwithstanding paragraph (g)(1)(i) 
of this section, if the taxpayer identifies a transaction as a hedging 
transaction for purposes of paragraph (f) of this section, the character 
of the gain is determined as if the transaction had not been identified 
as a hedging transaction if--
    (A) The transaction is not a hedging transaction (as defined in 
paragraph (b) of this section);
    (B) The identification of the transaction as a hedging transaction 
was due to inadvertent error; and
    (C) All of the taxpayer's transactions in all open years are being 
treated on either original or, if necessary, amended returns in a manner 
consistent with the principles of this section.
    (2) Transactions not identified--(i) In general. Except as provided 
in paragraphs (g)(2)(ii) and (iii) of this section, the absence of an 
identification that satisfies the requirements of paragraph (f)(1) of 
this section is binding and establishes that a transaction is not a 
hedging transaction. Thus, subject to the exceptions, the rules of 
paragraphs (a)(1) and (2) of this section do not apply, and the 
character of gain or loss is determined without reference to whether the 
transaction is a surrogate for a noncapital asset, serves as insurance 
against a business risk, serves a hedging function, or serves a similar 
function or purpose.
    (ii) Inadvertent error. If a taxpayer does not make an 
identification that satisfies the requirements of paragraph (f) of this 
section, the taxpayer may treat gain or loss from the transaction as 
ordinary income or loss under paragraph (a)(1) or (2) of this section 
if--
    (A) The transaction is a hedging transaction (as defined in 
paragraph (b) of this section);
    (B) The failure to identify the transaction was due to inadvertent 
error; and
    (C) All of the taxpayer's hedging transactions in all open years are 
being treated on either original or, if necessary, amended returns as 
provided in paragraphs (a)(1) and (2) of this section.
    (iii) Anti-abuse rule. If a taxpayer does not make an identification 
that satisfies all the requirements of paragraph (f) of this section but 
the taxpayer has no reasonable grounds for treating the transaction as 
other than a hedging transaction, then gain from the transaction is 
ordinary. The reasonableness of the taxpayer's failure to identify a 
transaction is determined by taking into consideration not only the 
requirements of paragraph (b) of this section but also the taxpayer's 
treatment of the transaction for financial accounting or other purposes 
and the taxpayer's identification of similar transactions as hedging 
transactions.
    (3) Transactions by members of a consolidated group--(i) Single-
entity approach. If a consolidated group is under the general rule of 
paragraph (e)(1) of this section (the single-entity approach), the rules 
of this paragraph (g) apply only to transactions that are not 
intercompany transactions.
    (ii) Separate-entity election. If a consolidated group has made the 
election under paragraph (e)(2) of this section, then, in addition to 
the rules of paragraphs (g)(1) and (2) of this section, the following 
rules apply:
    (A) If an intercompany transaction is identified as a hedging 
transaction but does not meet the requirements of paragraphs 
(e)(2)(ii)(A) and (B) of this section, then, notwithstanding any 
contrary provision in Sec.  1.1502-13, each party to the transaction is 
subject to the rules of paragraph (g)(1) of this section with respect to 
the transaction as though it had incorrectly identified its position in 
the transaction as a hedging transaction.
    (B) If a transaction meets the requirements of paragraphs (e)(2)(ii) 
(A) and (B) of this section but the transaction is not identified as a 
hedging transaction, each party to the transaction is subject to the 
rules of paragraph (g)(2) of this section. (Because the transaction is 
an intercompany hedging transaction, the character and timing rules of 
Sec.  1.1502-13 do not apply. See paragraph (e)(2)(iii)(A) of this 
section.)
    (h) Effective date. The rules of this section apply to transactions 
entered into on or after March 20, 2002.
    (i) [Reserved]. For further guidance, see Sec.  1.1221-2T(i) through 
(j)(1).

[[Page 327]]

    (j) Effective/applicability date. Paragraph (e)(2)(iv) of this 
section applies to any original consolidated Federal income tax return 
due (without extensions) after June 14, 2007. For original consolidated 
Federal income tax returns due (without extensions) after May 30, 2006, 
and on or before June 14, 2007, see Sec.  1.1221-2T as contained in 26 
CFR part 1 in effect on April 1, 2007. For original consolidated Federal 
income tax returns due (without extensions) on or before May 30, 2006, 
see Sec.  1.1221-2 as contained in 26 CFR part 1 in effect on April 1, 
2006.

[T.D. 8985, 67 FR 12865, Mar. 20, 2002, as amended by T.D. 9264, 71 FR 
30602, May 30, 2006; T.D. 9329, 72 FR 32804, June 14, 2007]



Sec.  1.1221-3  Time and manner for electing capital asset treatment 
for certain self-created musical works.

    (a) Description. Section 1221(b)(3) allows an electing taxpayer to 
treat the sale or exchange of a musical composition or a copyright in a 
musical work created by the taxpayer's personal efforts (or having a 
basis determined by reference to the basis of such property in the hands 
of a taxpayer whose personal efforts created such property) as the sale 
or exchange of a capital asset. As a consequence, gain or loss from the 
sale or exchange is treated as capital gain or loss.
    (b) Time and manner for making the election. An election described 
in this section is made separately for each musical composition (or 
copyright in a musical work) sold or exchanged during the taxable year. 
An election must be made on or before the due date (including 
extensions) of the income tax return for the taxable year of the sale or 
exchange. The election is made on Schedule D, ``Capital Gains and 
Losses,'' of the appropriate income tax form (for example, Form 1040, 
``U.S. Individual Income Tax Return;'' Form 1065, ``U.S. Return of 
Partnership Income;'' Form 1120, ``U.S. Corporation Income Tax Return'') 
by treating the sale or exchange as the sale or exchange of a capital 
asset, in accordance with the form and its instructions.
    (c) Revocability of election. The election described in this section 
is revocable with the consent of the Commissioner. To seek consent to 
revoke the election, a taxpayer must submit a request for a letter 
ruling under the applicable administrative procedures. Alternatively, an 
automatic extension of 6 months from the due date of the taxpayer's 
income tax return (excluding extensions) is granted to revoke the 
election, provided the taxpayer timely filed the taxpayer's income tax 
return and, within this 6-month extension period, the taxpayer files an 
amended income tax return that treats the sale or exchange as the sale 
or exchange of property that is not a capital asset.
    (d) Effective/applicability date. This section applies to elections 
under section 1221(b)(3) in taxable years beginning after May 17, 2006.

[T.D. 9514, 76 FR 6554, Feb. 7, 2011]



Sec.  1.1222-1  Other terms relating to capital gains and losses.

    (a) The phrase short-term applies to the category of gains and 
losses arising from the sale or exchange of capital assets held for 1 
year (6 months for taxable years beginning before 1977; 9 months for 
taxable years beginning in 1977) or less; the phrase long-term to the 
category of gains and losses arising from the sale or exchange of 
capital assets held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977). 
The fact that some part of a loss from the sale or exchange of a capital 
asset may be finally disallowed because of the operation of section 1211 
does not mean that such loss is not taken into account in computing 
taxable income within the meaning of that phrase as used in sections 
1222(2) and 1222(4).
    (b)(1) In the definition of net short-term capital gain, as provided 
in section 1222(5), the amounts brought forward to the taxable year 
under section 1212 (other than section 1212(b)(1)(B)) are short-term 
capital losses for such taxable year.
    (2) In the definition of net long-term capital gain, as provided in 
section 1222(7), the amounts brought forward to the taxable year under 
section 1212(b)(1)(B) are long-term capital losses for such taxable 
year.
    (c) Gains and losses from the sale or exchange of capital assets 
held for not more than 1 year (6 months for taxable

[[Page 328]]

years beginning before 1977; 9 months for taxable years beginning in 
1977) (described as short-term capital gains and short-term capital 
losses) shall be segregated from gains and losses arising from the sale 
or exchange of such assets held for more than 1 year (6 months for 
taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977) (described as long-term capital gains and long-term 
capital losses).
    (d)(1) The term capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) means the excess of the 
gains from sales or exchanges of capital assets over the losses from 
sales or exchanges of capital assets, which losses include any amounts 
carried to the taxable year pursuant to section 1212(a) or section 
1212(b).
    (2) Notwithstanding subparagraph (1) of this paragraph, in the case 
of a taxpayer other than a corporation for taxable years beginning 
before January 1, 1964, the term net capital gain means the excess of 
(i) the sum of the gains from sales or exchanges of capital assets, plus 
the taxable income (computed without regard to gains and losses from 
sales or exchanges of capital assets and without regard to the 
deductions provided by section 151, relating to personal exemptions, or 
any deductions in lieu thereof) of the taxpayer or $1,000, whichever is 
smaller, over (ii) the losses from sales or exchanges of capital assets, 
which losses include amounts carried to the taxable year by such 
taxpayer under paragraph (a)(1) of Sec.  1.1212-1. Thus, in the case of 
estates and trusts for taxable years beginning before January 1, 1964, 
taxable income for the purposes of this paragraph shall be computed 
without regard to gains and losses from sales or exchanges of capital 
assets and without regard to the deductions allowed by section 642(b) to 
estates and trusts in lieu of personal exemptions. The term net capital 
gain is not applicable in the case of a taxpayer other than a 
corporation for taxable years beginning after December 31, 1963, and 
before January 1, 1970. In the case of a taxpayer whose tax liability is 
computed under section 3 for taxable years beginning before January 1, 
1964, the term taxable income, for purposes of this paragraph, shall be 
read as adjusted gross income.
    (e) The term net capital loss means the excess of the losses from 
sales or exchanges of capital assets over the sum allowed under section 
1211. However, in the case of a corporation, amounts which are short-
term capital losses under Sec.  1.1212-1(a) are excluded in determining 
such net capital loss.
    (f) See section 165(g) and section 166(e), under which losses from 
worthless stocks, bonds, and other securities (if they constitute 
capital assets) are required to be treated as losses under subchapter P 
(section 1201 and following), chapter 1 of the Code, from the sale or 
exchange of capital assets, even though such securities are not actually 
sold or exchanged. See also section 1231 and Sec.  1.1231-1 for the 
determination of whether or not gains and losses from the involuntary 
conversion of capital assets and from the sale, exchange, or involuntary 
conversion of certain property used in the trade or business shall be 
treated as gains and losses from the sale or exchange of capital assets. 
See also section 1236 and Sec.  1.1236-1 for the determination of 
whether or not gains from the sale or exchange of securities by a dealer 
in securities shall be treated as capital gains, or whether losses from 
such sales or exchanges shall be treated as ordinary losses.
    (g) In the case of nonresident alien individuals not engaged in 
trade or business within the United States, see section 871 and the 
regulations thereunder for the determination of the net amount of 
capital gains subject to tax.
    (h) The term net capital gain (net section 1201 gain for taxable 
years beginning before January 1, 1977) means the excess of the net 
long-term capital gain for the taxable year over the net short-term 
capital loss for such year.

[T.D. 6500, 25 FR 12004, Nov. 26, 1960, as amended by T.D. 6828, 30 FR 
7808, June 17, 1965; T.D. 6867, 30 FR 15096, Dec. 7, 1965; T.D. 7301, 39 
FR 971, Jan. 4, 1974; T.D. 7337, 39 FR 44978, Dec. 30, 1974; T.D. 7728, 
45 FR 72650, Nov. 3, 1980]

[[Page 329]]



Sec.  1.1223-1  Determination of period for which capital assets are held.

    (a) The holding period of property received in an exchange by a 
taxpayer includes the period for which the property which he exchanged 
was held by him, if the property received has the same basis in whole or 
in part for determining gain or loss in the hands of the taxpayer as the 
property exchanged. However, this rule shall apply, in the case of 
exchanges after March 1, 1954, only if the property exchanged was at the 
time of the exchange a capital asset in the hands of the taxpayer or 
property used in his trade or business as defined in section 1231(b). 
For the purposes of this paragraph, the term exchange includes the 
following transactions:
    (1) An involuntary conversion described in section 1033, and
    (2) A distribution to which section 355 (or so much of section 356 
as relates to section 355) applies.

Thus, if property acquired as the result of a compulsory or involuntary 
conversion of other property of the taxpayer has under section 1033(c) 
the same basis in whole or in part in the hands of the taxpayer as the 
property so converted, its acquisition is treated as an exchange and the 
holding period of the newly acquired property shall include the period 
during which the converted property was held by the taxpayer. Thus, 
also, where stock of a controlled corporation is received by a taxpayer 
pursuant to a distribution to which section 355 (or so much of section 
356 as relates to section 355) applies, the distribution is treated as 
an exchange and the period for which the taxpayer has held the stock of 
the controlled corporation shall include the period for which he held 
the stock of the distributing corporation with respect to which such 
distribution was made.
    (b) The holding period of property in the hands of a taxpayer shall 
include the period during which the property was held by any other 
person, if such property has the same basis in whole or in part in the 
hands of the taxpayer for determining gain or loss from a sale or 
exchange as it would have in the hands of such other person. For 
example, the period for which property acquired by gift after December 
31, 1920, was held by the donor must be included in determining the 
period for which the property was held by the taxpayer if, under the 
provisions of section 1015, such property has, for the purpose of 
determining gain or loss from the sale or exchange, the same basis in 
the hands of the taxpayer as it would have in the hands of the donor. 
Similarly, the period for which property acquired from a decedent who 
died in 2010 was held by the decedent must be included in determining 
the period during which the property was held by the recipient, if the 
recipient's basis in the property is determined under section 1022.
    (c) In determining the period for which the taxpayer has held stock 
or securities received upon a distribution where no gain was recognized 
to the distributee under section 1081(c) (or under section 112(g) of the 
Revenue Act of 1928 (45 Stat. 818) or the Revenue Act of 1932 (47 Stat. 
197)), there shall be included the period for which he held the stock or 
securities in the distributing corporation before the receipt of the 
stock or securities on such distribution.
    (d) If the acquisition of stock or securities resulted in the 
nondeductibility (under section 1091, relating to wash sales) of the 
loss from the sale or other disposition of substantially identical stock 
or securities, the holding period of the newly acquired securities shall 
include the period for which the taxpayer held the securities with 
respect to which the loss was not allowable.
    (e) The period for which the taxpayer has held stock, or stock 
subscription rights, received on a distribution shall be determined as 
though the stock dividend, or stock right, as the case may be, were the 
stock in respect of which the dividend was issued if the basis for 
determining gain or loss upon the sale or other disposition of such 
stock dividend or stock right is determined under section 307. If the 
basis of stock received by a taxpayer pursuant to a spin-off is 
determined under so much of section 1052(c) as refers to section 
113(a)(23) of the Internal Revenue Code of 1939, and such stock is sold 
or otherwise disposed of in a taxable year which is subject to the 
Internal Revenue Code of 1954, the period for which

[[Page 330]]

the taxpayer has held the stock received in such spin-off shall include 
the period for which he held the stock of the distributing corporation 
with respect to which such distribution was made.
    (f) The period for which the taxpayer has held stock or securities 
issued to him by a corporation pursuant to the exercise by him of rights 
to acquire such stock or securities from the corporation will, in every 
case and whether or not the receipt of taxable gain was recognized in 
connection with the distribution of the rights, begin with and include 
the day upon which the rights to acquire such stock or securities were 
exercised. A taxpayer will be deemed to have exercised rights received 
from a corporation to acquire stock or securities therein where there is 
an expression of assent to the terms of such rights made by the taxpayer 
in the manner requested or authorized by the corporation.
    (g) The period for which the taxpayer has held a residence, the 
acquisition of which resulted under the provisions of section 1034 in 
the nonrecognition of any part of the gain realized on the sale or 
exchange of another residence, shall include the period for which such 
other residence had been held as of the date of such sale or exchange. 
For purposes of this paragraph, the term sale or exchange includes an 
involuntary conversion occurring after December 31, 1950, and before 
January 1, 1954.
    (h) If a taxpayer accepts delivery of a commodity in satisfaction of 
a commodity futures contract, the holding period of the commodity shall 
include the period for which the taxpayer held the commodity futures 
contract, if such futures contract was a capital asset in his hands.
    (i) If shares of stock in a corporation are sold from lots purchased 
at different dates or at different prices and the identity of the lots 
cannot be determined, the rules prescribed by the regulations under 
section 1012 for determining the cost or other basis of such stocks so 
sold or transferred shall also apply for the purpose of determining the 
holding period of such stock.
    (j) In the case of a person acquiring property, or to whom property 
passed, from a decedent (within the meaning of section 1014(b)) dying 
after December 31, 1970, such person shall be considered to have held 
the property for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977) if the 
property:
    (1) Has a basis in the hands of such person which is determined in 
whole or in part under section 1014, and
    (2) Is sold or otherwise disposed of by such person within 6 months 
after the decedent's death.

The provisions of this paragraph apply to sales of such property 
included in the decedent's gross estate for the purposes of the estate 
tax by the executor or administrator of the estate and to sales of such 
property by other persons who have acquired property from the decedent. 
The provisions of this paragraph may also be applicable to cases 
involving joint tenancies, community property, and properties 
transferred in contemplation of death. Thus, if a surviving joint 
tenant, who acquired property by right of survivorship, sells or 
otherwise disposes of such property within 6 months after the date of 
the decedent's death, and the basis of the property in his hands is 
determined in whole or in part under section 1014, the property shall be 
considered to have been held by the surviving joint tenant for more than 
6 months. Similarly, a surviving spouse's share of community property 
shall be considered to have been held by her for more than 6 months if 
it is sold or otherwise disposed of within 6 months after the date of 
the decedent's death, regardless of when the property was actually 
acquired by the marital community. For the purposes of this paragraph, 
it is immaterial that the sale or other disposition produces gain or 
loss. If property is considered to have been held for more than 6 months 
by reason of this paragraph, it also is considered to have been held for 
that period for purposes of section 1231 (if that section is otherwise 
applicable).
    (k) Any reference in section 1223 or this section to another 
provision of the Internal Revenue Code of 1954 is, where applicable, to 
be deemed a reference to the corresponding provision of the Internal 
Revenue Code of 1939, or prior

[[Page 331]]

internal revenue laws. The provisions of prior internal revenue laws 
here intended are the sections referred to in the sections of the 
Internal Revenue Code of 1939 which correspond to the sections of the 
Internal Revenue Code of 1954 referred to in section 1223. Thus, the 
sections corresponding to section 1081(c) are section 371(c) of the 
Revenue Act of 1938 (52 Stat. 553) and section 371(c) of the Internal 
Revenue Code of 1939. The sections corresponding to section 1091 are 
section 118 of each of the following: The Revenue Acts of 1928 (45 Stat. 
826), 1932 (47 Stat. 208), 1934 (48 Stat. 715), 1936 (49 Stat. 1692), 
1938 (52 Stat. 503), and the Internal Revenue Code of 1939.
    (l) Effective/applicability date. This section applies January 19, 
2017. For rules before January 19, 2017, see Sec.  1.1223-1 as contained 
in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 6500, 25 FR 12005, Nov. 26, 1960, as amended by T.D. 7238, 37 FR 
28717, Dec. 29, 1972; T.D. 7728, 45 FR 72650, Nov. 3, 1980; T.D. 9811, 
82 FR 6241, Jan. 19, 2017; T.D. 9849, 84 FR 9237, Mar. 14, 2019]



Sec.  1.1223-3  Rules relating to the holding periods of partnership interests.

    (a) In general. A partner shall not have a divided holding period in 
an interest in a partnership unless--
    (1) The partner acquired portions of an interest at different times; 
or
    (2) The partner acquired portions of the partnership interest in 
exchange for property transferred at the same time but resulting in 
different holding periods (e.g., section 1223).
    (b) Accounting for holding periods of an interest in a partnership--
(1) General rule. The portion of a partnership interest to which a 
holding period relates shall be determined by reference to a fraction, 
the numerator of which is the fair market value of the portion of the 
partnership interest received in the transaction to which the holding 
period relates, and the denominator of which is the fair market value of 
the entire partnership interest (determined immediately after the 
transaction).
    (2) Special rule. For purposes of applying paragraph (b)(1) of this 
section to determine the holding period of a partnership interest (or 
portion thereof) that is sold or exchanged (or with respect to which 
gain or loss is recognized upon a distribution under section 731), if a 
partner makes one or more contributions of cash to the partnership and 
receives one or more distributions of cash from the partnership during 
the one-year period ending on the date of the sale or exchange (or 
distribution with respect to which gain or loss is recognized under 
section 731), the partner may reduce the cash contributions made during 
the year by cash distributions received on a last-in-first-out basis, 
treating all cash distributions as if they were received immediately 
before the sale or exchange (or at the time of the distribution with 
respect to which gain or loss is recognized under section 731).
    (3) Deemed contributions and distributions. For purposes of 
paragraphs (b)(1) and (2) of this section, deemed contributions of cash 
under section 752(a) and deemed distributions of cash under section 
752(b) shall be disregarded to the same extent that such amounts are 
disregarded under Sec.  1.704-1(b)(2)(iv)(c).
    (4) Adjustment with respect to contributed section 751 assets. For 
purposes of applying paragraph (b)(1) of this section to determine the 
holding period of a partnership interest (or portion thereof) that is 
sold or exchanged, if a partner receives a portion of the partnership 
interest in exchange for property described in section 751(c) or (d) 
(section 751 assets) within the one-year period ending on the date of 
the sale or exchange of all or a portion of the partner's interest in 
the partnership, and the partner recognizes ordinary income or loss on 
account of such a section 751 asset in a fully taxable transaction 
(either as a result of the sale of all or part of the partner's interest 
in the partnership or the sale by the partnership of the section 751 
asset), the contribution of the section 751 asset during the one-year 
period shall be disregarded. However, if, in the absence of this 
paragraph, a partner would not be treated as having held any portion of 
the interest for more than one year (e.g., because the partner's only 
contributions to the partnership are contributions of section 751 assets 
or section 751 assets and cash within the prior one-year period), this 
adjustment is not available.

[[Page 332]]

    (5) Divided holding period if partnership interest comprises in 
whole or in part one or more profits interests--(i) In general. If a 
partnership interest is comprised in whole or in part of one or more 
profits interests (as defined in paragraph (b)(5)(ii) of this section), 
then, for purposes of applying paragraph (b)(1) of this section, the 
portion of the holding period to which a profits interest relates is 
determined based on the fair market value of the profits interest upon 
the disposition of all, or part, of the interest (and not at the time 
that the profits interest is acquired). Paragraph (b)(1) of this section 
continues to apply to the extent that a partner acquires portions of a 
partnership interest that are not comprised of a profits interest and 
the value of the profits interest is not included for purposes of 
determining the value of the entire partnership interest under paragraph 
(b)(1).
    (ii) Definition of capital interest and profits interest. For 
purposes of this paragraph (b)(5), a profits interest is a partnership 
interest other than a capital interest. A capital interest is an 
interest that would give the holder a share of the proceeds if the 
partnership's assets were sold at fair market value at the time the 
interest was received and then the proceeds were distributed in a 
complete liquidation of the partnership. A profits interest, for 
purposes of this paragraph (b)(5), is received in connection with the 
performance of services to or for the benefit of a partnership in a 
partner capacity or in anticipation of being a partner, and the receipt 
of the interest is not treated as a taxable event for the partner or the 
partnership under applicable Federal income tax guidance.
    (6) Exception. The Commissioner may prescribe by guidance published 
in the Internal Revenue Bulletin (see Sec.  601.601(d)(2) of this 
chapter) a rule disregarding certain cash contributions (including 
contributions of a de minimis amount of cash) in applying paragraph 
(b)(1) of this section to determine the holding period of a partnership 
interest (or portion thereof) that is sold or exchanged.
    (c) Sale or exchange of all or a portion of an interest in a 
partnership--(1) Sale or exchange of entire interest in a partnership. 
If a partner sells or exchanges the partner's entire interest in a 
partnership, any capital gain or loss recognized shall be divided 
between long-term and short-term capital gain or loss in the same 
proportions as the holding period of the interest in the partnership is 
divided between the portion of the interest held for more than one year 
and the portion of the interest held for one year or less.
    (2) Sale or exchange of a portion of an interest in a partnership--
(i) Certain publicly traded partnerships. A selling partner in a 
publicly traded partnership (as defined under section 7704(b)) may use 
the actual holding period of the portion of a partnership interest 
transferred if--
    (A) The ownership interest is divided into identifiable units with 
ascertainable holding periods;
    (B) The selling partner can identify the portion of the partnership 
interest transferred; and
    (C) The selling partner elects to use the identification method for 
all sales or exchanges of interests in the partnership after September 
21, 2000. The selling partner makes the election referred to in this 
paragraph (c)(2)(i)(C) by using the actual holding period of the portion 
of the partner's interest in the partnership first transferred after 
September 21, 2000 in reporting the transaction for Federal income tax 
purposes.
    (ii) Other partnerships. If a partner has a divided holding period 
in a partnership interest, and paragraph (c)(2)(i) of this section does 
not apply, then the holding period of the transferred interest shall be 
divided between long-term and short-term capital gain or loss in the 
same proportions as the long-term and short-term capital gain or loss 
that the transferor partner would realize if the entire interest in the 
partnership were transferred in a fully taxable transaction immediately 
before the actual transfer.
    (d) Distributions--(1) In general. Except as provided in paragraph 
(b)(2) of this section, a partner's holding period in a partnership 
interest is not affected by distributions from the partnership.
    (2) Character of capital gain or loss recognized as a result of a 
distribution from a partnership. If a partner is required to

[[Page 333]]

recognize capital gain or loss as a result of a distribution from a 
partnership, then the capital gain or loss recognized shall be divided 
between long-term and short-term capital gain or loss in the same 
proportions as the long-term and short-term capital gain or loss that 
the distributee partner would realize if such partner's entire interest 
in the partnership were transferred in a fully taxable transaction 
immediately before the distribution.
    (e) Section 751(c) assets. For purposes of this section, properties 
and potential gain treated as unrealized receivables under section 
751(c) shall be treated as separate assets that are not capital assets 
as defined in section 1221 or property described in section 1231.
    (f) Examples. The provisions of this section are illustrated by the 
following examples:

    (1) Example 1. Division of holding period--contribution of money and 
a capital asset.
    (i) A contributes $5,000 of cash and a nondepreciable capital asset 
A has held for two years to a partnership (PRS) for a 50 percent 
interest in PRS. A's basis in the capital asset is $5,000, and the fair 
market value of the asset is $10,000. After the exchange, A's basis in 
A's interest in PRS is $10,000, and the fair market value of the 
interest is $15,000. A received one-third of the interest in PRS for a 
cash payment of $5,000 ($5,000/$15,000). Therefore, A's holding period 
in one-third of the interest received (attributable to the contribution 
of money to the partnership) begins on the day after the contribution. A 
received two-thirds of the interest in PRS in exchange for the capital 
asset ($10,000/$15,000). Accordingly, pursuant to section 1223(1), A has 
a two-year holding period in two-thirds of the interest received in PRS.
    (ii) Six months later, when A's basis in PRS is $12,000 (due to a 
$2,000 allocation of partnership income to A), A sells the interest in 
PRS for $17,000. Assuming PRS holds no inventory or unrealized 
receivables (as defined under section 751(c)) and no collectibles or 
section 1250 property, A will realize $5,000 of capital gain. As 
determined above, one-third of A's interest in PRS has a holding period 
of one year or less, and two-thirds of A's interest in PRS has a holding 
period equal to two years and six months. Therefore, one-third of the 
capital gain will be short-term capital gain, and two-thirds of the 
capital gain will be long-term capital gain.
    (2) Example 2. Division of holding period--contribution of section 
751 asset and a capital asset.
    A contributes inventory with a basis of $2,000 and a fair market 
value of $6,000 and a capital asset which A has held for more than one 
year with a basis of $4,000 and a fair market value of $6,000, and B 
contributes cash of $12,000 to form a partnership (AB). As a result of 
the contribution, one-half of A's interest in AB is treated as having 
been held for more than one year under section 1223(1). Six months 
later, A transfers one-half of A's interest in AB to C for $6,000, 
realizing a gain of $3,000. If AB were to sell all of its section 751 
property in a fully taxable transaction immediately before A's transfer 
of the partnership interest, A would be allocated $4,000 of ordinary 
income on account of the inventory. Accordingly, A will recognize $2,000 
of ordinary income and $1,000 of capital gain ($3,000-$2,000) on account 
of the transfer to C. Because A recognizes ordinary income on account of 
the inventory that was contributed to AB within the one year period 
ending on the date of the sale, the inventory will be disregarded in 
determining the holding period of A's interest in AB. All of the capital 
gain will be long-term.
    (3) Example 3. Netting of cash contributions and distributions.
    (i) On January 1, 2000, A holds a 50 percent interest in the capital 
and profits of a partnership (PS). The value of A's PS interest is $900, 
and A's holding period in the entire interest is long-term. On January 
2, 2000, when the value of A's PS interest is still $900, A contributes 
$100 to PS. On June 1, 2000, A receives a distribution of $40 cash from 
the partnership. On September 1, 2000, when the value of A's interest in 
PS is $1,350, A contributes an additional $230 cash to PS, and on 
October 1, 2000, A receives another $40 cash distribution from PS. A 
sells A's entire partnership interest on November 1, 2000, for $1,600. 
A's adjusted basis in the PS interest at the time of the sale is $1,000.

[[Page 334]]

    (ii) For purposes of netting cash contributions and distributions in 
determining the holding period of A's interest in PS, A is treated as 
having received a distribution of $80 on November 1, 2000. Applying that 
distribution on a last-in-first-out basis to reduce prior contributions 
during the year, the contribution made on September 1, 2000, is reduced 
to $150 ($230-$80). The holding period then is determined as follows: 
Immediately after the contribution of $100 on January 2, 2000, A's 
holding period in A's PS interest is 90 percent long-term ($900/($900 + 
$100)) and 10 percent short-term ($100/($900 + $100)). The contribution 
of $150 on September 1, 2000, causes 10 percent of A's partnership 
interest ($150/($1,350 + $150)) to have a short-term holding period. 
Accordingly, immediately after the contribution on September 1, 2000, 
A's holding period in A's PS interest is 81 percent long-term (.90 x 
.90) and 19 percent short-term ((.10 x .90) + .10). Accordingly, $486 
($600 x .81) of the gain from A's sale of the PS interest is long-term 
capital gain, and $114 ($600 x .19) is short-term capital gain.
    (4) Example 4. Division of holding period when capital account is 
increased by contribution.
    A, B, C, and D are equal partners in a partnership (PRS), and the 
fair market value of a 25 percent interest in PRS is $100. A, B, C, and 
D each contribute an additional $100 to partnership capital, thereby 
increasing the fair market value of each partner's interest to $200. As 
a result of the contribution, each partner has a new holding period in 
the portion of the partner's interest in PRS that is attributable to the 
contribution. That portion equals 50 percent ($100/$200) of each 
partner's interest in PRS.
    (5) Example 5. Sale or exchange of a portion of an interest in a 
partnership.
    (i) A, B, and C form an equal partnership (PRS). In connection with 
the formation, A contributes $5,000 in cash and a capital asset (capital 
asset 1) with a fair market value of $5,000 and a basis of $2,000; B 
contributes $7,000 in cash and a capital asset (capital asset 2) with a 
fair market value of $3,000 and a basis of $3,000; and C contributes 
$10,000 in cash. At the time of the contribution, A had held the 
contributed property for two years. Six months later, when A's basis in 
PRS is $7,000, A transfers one-half of A's interest in PRS to T for 
$7,000 at a time when PRS's balance sheet (reflecting a cash receipts 
and disbursements method of accounting) is as follows:

------------------------------------------------------------------------
                                                            ASSETS
                                                     -------------------
                                                      Adjusted   Market
                                                        basis     value
------------------------------------------------------------------------
Cash................................................   $22,000   $22,000
Unrealized Receivables..............................         0     6,000
  Capital Asset 1...................................     2,000     5,000
  Capital Asset 2...................................     3,000     9,000
Capital Assets......................................     5,000    14,000
                                                     -------------------
    Total...........................................    27,000    42,000
------------------------------------------------------------------------

    (ii) Although at the time of the transfer A has not held A's 
interest in PRS for more than one year, 50 percent of the fair market 
value of A's interest in PRS was received in exchange for a capital 
asset with a long-term holding period. Therefore, 50 percent of A's 
interest in PRS has a long-term holding period.
    (iii) If PRS were to sell all of its section 751 property in a fully 
taxable transaction immediately before A's transfer of the partnership 
interest, A would be allocated $2,000 of ordinary income. One-half of 
that amount ($1,000) is attributable to the portion of A's interest in 
PRS transferred to T. Accordingly, A will recognize $1,000 oridnary 
income and $2,500 ($3,500-$1,000) of capital gain on account of the 
transfer to T of one-half of A's interest in PRS. Fifty percent ($1,250) 
of that gain is long-term capital gain and 50 percent ($1,250) is short-
term capital gain.
    (6) Example 6. Sale of units of interests in a partnership.
    A publicly traded partnership (PRS) has ownership interests that are 
segregated into identifiable units of interest. A owns 10 limited 
partnership units in PRS for which A paid $10,000 on January 1, 1999. On 
August 1, 2000, A purchases five additional units for $10,000. At the 
time of purchase, the fair market value of each unit has increased to 
$2,000. A's holding period for one-third ($10,000/$30,000) of the 
interest in PRS begins on the day after the purchase of the five 
additional units. Less than one year later, A sells five units of 
ownership in PRS for $11,000. At the

[[Page 335]]

time, A's basis in the 15 units of PRS is $20,000, and A's capital gain 
on the sale of 5 units is $4,333 (amount realized of $11,000-one-third 
of the adjusted basis or $6,667). For purposes of determining the 
holding period, A can designate the specific units of PRS sold. If A 
properly identifies the five units sold as five of the ten units for 
which A has a long-term holding period and elects to use the 
identification method for all subsequent sales or exchanges of interests 
in the partnership by using the actual holding period in reporting the 
transaction on A's Federal income tax return, the capital gain realized 
will be long-term capital gain.
    (7) Example 7. Disproportionate distribution.
    In 1997, A and B each contribute cash of $50,000 to form and become 
equal partners in a partnership (PRS). More than one year later, A 
receives a distribution worth $22,000 from PRS, which reduces A's 
interest in PRS to 36 percent. After the distribution, B owns 64 percent 
of PRS. The holding periods of A and B in their interests in PRS are not 
affected by the distribution.
    (8) Example 8. Gain or loss as a result of a distribution.
    (i) On January 1, 1996, A contributes property with a basis of $10 
and a fair market value of $10,000 in exchange for an interest in a 
partnership (ABC). On September 30, 2000, when A's interest in ABC is 
worth $12,000 (and the basis of A's partnership interest is still $10), 
A contributes $12,000 cash in exchange for an additional interest in 
ABC. A is allocated a loss equal to $10,000 by ABC for the taxable year 
ending December 31, 2000, thereby reducing the basis of A's partnership 
interest to $2,010. On February 1, 2001, ABC makes a cash distribution 
to A of $10,000. ABC holds no inventory or unrealized receivables. 
(assume that A is allocated no gain or loss for the taxable year ending 
December 31, 2001, so that the basis of A's partnership interest does 
not increase or decrease as a result of such allocations.)
    (ii) The netting rule contained in paragraph (b)(2) of this section 
provides that, in determining the holding period of A's interest in ABC, 
the cash contribution made on September 30, 2000, must be reduced by the 
distribution made on February 1, 2001. Accordingly, for purposes of 
determining the holding period of A's interest in ABC, A is treated as 
having made a cash contribution of $2,000 ($12,000-$10,000) to ABC on 
September 30, 2000. A's holding period in one-seventh of A's interest in 
ABC ($2,000 cash contributed over the $14,000 value of the entire 
interest (determined as if only $2,000 were contributed rather than 
$12,000)) begins on the day after the cash contribution. A recognizes 
$7,990 of capital gain as a result of the distribution. See section 
731(a)(1). One-seventh of the capital gain recognized as a result of the 
distribution is short-term capital gain, and six-sevenths of the capital 
gain is long-term capital gain. After the distribution, A's basis in the 
interest in PRS is $0, and the holding period for the interest in PRS 
continues to be divided in the same proportions as before the 
distribution.
    (9) Example 9. On June 1, 2020, GP contributes $10,000 to PRS for a 
partnership interest in PRS. On June 30, 2023, GP receives a 20% 
interest in the profits of PRS that is an Applicable Partnership 
Interest (API) as defined in Sec.  1.1061-1(a). On June 30, 2025, GP 
sells its interest in PRS for $30,000. At the time of GP's sale of its 
interest, the API has a fair market value of $15,000. GP has a divided 
holding period in its interest in PRS; 50% of the partnership interest 
has a holding period beginning on June 1, 2020, and 50% has a holding 
period that begins on June 30, 2023.
    (10) Example 10. Assume the same facts as in paragraph (f)(9) of 
this section (Example 9), except that on June 30, 2024, GP contributes 
an additional $5,000 cash to GP prior to GP's sale of its interest in 
2025. Immediately after the contribution of the $5,000 on June 30, 2024, 
GP's interest in PRS has a value of $15,000, not taking into account the 
value of GP's profits interest in PRS. GP calculates its holding period 
in the portions not comprised by the profits interest and two-thirds of 
its holding period runs from June 30, 2020, and one-third runs from June 
30, 2024. On June 30, 2025, GP sells its interest for $30,000 and the 
API has a fair market value of $15,000. Accordingly, on the date of 
disposition, one-third of GP's interest has a five year holding

[[Page 336]]

period from its interest received in 2020 for its $10,000 contribution, 
one-half of GP's interest has a two year holding period from the profits 
interest issued on June 30, 2023, and one-sixth of GP's interest has a 
one year holding period from the contribution of the $5,000.
    (g) Applicability dates. This section applies to transfers of 
partnership interests and distributions of property from a partnership 
that occur on or after September 21, 2000. Paragraphs (b)(5) and (f)(9) 
and (10) of this section apply to taxable years beginning on or after 
January 19, 2021.

[T.D. 8902, 65 FR 57099, Sept. 21, 2000, as amended by T.D. 9945, 86 FR 
5494, Jan. 19, 2021]

         Special Rules for Determining Capital Gains and Losses



Sec.  1.1231-1  Gains and losses from the sale or exchange 
of certain property used in the trade or business.

    (a) In general. Section 1231 provides that, subject to the 
provisions of paragraph (e) of this section, a taxpayer's gains and 
losses from the disposition (including involuntary conversion) of assets 
described in that section as property used in the trade or business and 
from the involuntary conversion of capital assets held for more than 6 
months shall be treated as long-term capital gains and losses if the 
total gains exceed the total losses. If the total gains do not exceed 
the total losses, all such gains and losses are treated as ordinary 
gains and losses. Therefore, if the taxpayer has no gains subject to 
section 1231, a recognized loss from the condemnation (or from a sale or 
exchange under threat of condemnation) of even a capital asset held for 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977) is an ordinary loss. Capital 
assets subject to section 1231 treatment include only capital assets 
involuntarily converted. The noncapital assets subject to section 1231 
treatment are (1) depreciable business property and business real 
property held for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977) other than 
stock in trade and certain copyrights and artistic property and, in the 
case of sales and other dispositions occurring after July 25, 1969, 
other than a letter, memorandum, or property similar to a letter or 
memorandum; (2) timber, coal, and iron ore which do not otherwise meet 
the requirements of section 1231 but with respect to which section 631 
applies; and (3) certain livestock and unharvested crops. See paragraph 
(c) of this section.
    (b) Treatment of gains and losses. For the purpose of applying 
section 1231, a taxpayer must aggregate his recognized gains and losses 
from:
    (1) The sale, exchange, or involuntary conversion of property used 
in the trade or business (as defined in section 1231(b)), and
    (2) The involuntary conversion (but not sale or exchange) of capital 
assets held for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977).

If the gains to which section 1231 applies exceed the losses to which 
the section applies, the gains and losses are treated as long-term 
capital gains and losses and are subject to the provisions of parts I 
and II (section 1201 and following), subchapter P, chapter 1 of the 
Code, relating to capital gains and losses. If the gains to which 
section 1231 applies do not exceed the losses to which the section 
applies, the gains and losses are treated as ordinary gains and losses. 
Therefore, in the latter case, a loss from the involuntary conversion of 
a capital asset held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) is 
treated as an ordinary loss and is not subject to the limitation on 
capital losses in section 1211. The phrase involuntary conversion is 
defined in paragraph (e) of this section.
    (c) Transactions to which section applies. Section 1231 applies to 
recognized gains and losses from the following:
    (1) The sale, exchange, or involuntary conversion of property held 
for more than 1 year (6 months for taxable years beginning before 1977; 
9 months for taxable years beginning in 1977) and used in the taxpayer's 
trade or business, which is either real property or is of a character 
subject to the allowance for

[[Page 337]]

depreciation under section 167 (even though fully depreciated), and 
which is not:
    (i) Property of a kind which would properly be includible in the 
inventory of the taxpayer if on hand at the close of the taxable year, 
or property held by the taxpayer primarily for sale to customers in the 
ordinary course of business;
    (ii) A copyright, a literary, musical, or artistic composition, or 
similar property, or (in the case of sales and other dispositions 
occurring after July 25, 1969) a letter, memorandum, or property similar 
to a letter or memorandum, held by a taxpayer described in section 
1221(3); or
    (iii) Livestock held for draft, breeding, dairy, or sporting 
purposes, except to the extent included under paragraph (4) of this 
paragraph, or poultry.
    (2) The involuntary conversion of capital assets held for more than 
1 year (6 months for taxable years beginning before 1977; 9 months for 
taxable years beginning in 1977).
    (3) The cutting or disposal of timber, or the disposal of coal or 
iron ore, to the extent considered arising from a sale or exchange by 
reason of the provisions of section 631 and the regulations thereunder.
    (4) The sale, exchange, or involuntary conversion of livestock if 
the requirements of Sec.  1.1231-2 are met.
    (5) The sale, exchange, or involuntary conversion of unharvested 
crops on land which is (i) used in the taxpayer's trade or business and 
held for more than 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable years beginning in 1977), and (ii) sold or 
exchanged at the same time and to the same person. See paragraph (f) of 
this section.

For purposes of section 1231, the phrase property used in the trade or 
business means property described in this paragraph (other than property 
described in subparagraph (2) of this paragraph). Notwithstanding any of 
the provisions of this paragraph, section 1231(a) does not apply to 
gains and losses under the circumstances described in paragraph (e) (2) 
or (3) of this section.
    (d) Extent to which gains and losses are taken into account. All 
gains and losses to which section 1231 applies must be taken into 
account in determining whether and to what extent the gains exceed the 
losses. For the purpose of this computation, the provisions of section 
1211 limiting the deduction of capital losses do not apply, and no 
losses are excluded by that section. With that exception, gains are 
included in the computations under section 1231 only to the extent that 
they are taken into account in computing gross income, and losses are 
included only to the extent that they are taken into account in 
computing taxable income. The following are examples of gains and losses 
not included in the computations under section 1231:
    (1) Losses of a personal nature which are not deductible by reason 
of section 165 (c) or (d), such as losses from the sale of property held 
for personal use;
    (2) Losses which are not deductible under section 267 (relating to 
losses with respect to transactions between related taxpayers) or 
section 1091 (relating to losses from wash sales);
    (3) Gain on the sale of property (to which section 1231 applies) 
reported for any taxable year on the installment method under section 
453, except to the extent the gain is to be reported under section 453 
for the taxable year; and
    (4) Gains and losses which are not recognized under section 1002, 
such as those to which sections 1031 through 1036, relating to common 
nontaxable exchanges, apply.
    (e) Involuntary conversion--(1) General rule. For purposes of 
section 1231, the terms compulsory or involuntary conversion and 
involuntary conversion of property mean the conversion of proeprty into 
money or other property as a result of complete or partial destruction, 
theft or seizure, or an exercise of the power of requisition or 
condemnation, or the threat or imminence thereof. Losses upon the 
complete or partial destruction, theft, seizure, requisition, or 
condemnation of property are treated as losses upon an involuntary 
conversion whether or not there is a conversion of the property into 
other property or money and whether or not the property is uninsured, 
partially insured, or totally insured. For example, if a capital asset 
held for more than 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable

[[Page 338]]

years beginning in 1977), with an adjusted basis of $400, but not held 
for the production of income, is stolen, and the loss which is sustained 
in the taxable year 1956 is not compensated for by insurance or 
otherwise, section 1231 applies to the $400 loss. For certain exceptions 
to this subparagraph, see subparagraphs (2) and (3) of this paragraph.
    (2) Certain uninsured losses. Notwithstanding the provisions of 
subparagraph (1) of this paragraph, losses sustained during a taxable 
year beginning after December 31, 1957, and before January 1, 1970, with 
respect to both property used in the trade or business and any capital 
asset held for more than 6 months and held for the production of income, 
which losses arise from fire, storm, shipwreck, or other casualty, or 
from theft, and which are not compensated for by insurance in any 
amount, are not losses to which section 1231(a) applies. Such losses 
shall not be taken into account in applying the provisions of this 
section.
    (3) Exclusion of gains and losses from certain involuntary 
conversions. Notwithstanding the provisions of subparagraph (1) of this 
paragraph, if for any taxable year beginning after December 31, 1969, 
the recognized losses from the involuntary conversion as a result of 
fire, storm, shipwreck, or other casualty, or from theft, of any 
property used in the trade or business or of any capital asset held for 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977) exceed the recognized gains 
from the involuntary conversion of any such property as a result of 
fire, storm, shipwreck, or other casualty, or from theft, such gains and 
losses are not gains and losses to which section 1231 applies and shall 
not be taken into account in applying the provisions of this section. 
The net loss, in effect, will be treated as an ordinary loss. This 
subparagraph shall apply whether such property is uninsured, partially 
insured, or totally insured and, in the case of a capital asset held for 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977), whether the property is 
property used in the trade or business, property held for the production 
of income, or a personal asset.
    (f) Unharvested crops. Section 1231 does not apply to a sale, 
exchange, or involuntary conversion of an unharvested crop if the 
taxpayer retains any right or option to reacquire the land the crop is 
on, directly or indirectly (other than a right customarily incident to a 
mortgage or other security transaction). The length of time for which 
the crop, as distinguished from the land, is held is immaterial. A 
leasehold or estate for years is not land for the purpose of section 
1231.
    (g) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. A, an individual, makes his income tax return on the 
calendar year basis. A's recognized gains and losses for 1957 of the 
kind described in section 1231 are as follows:

------------------------------------------------------------------------
                                                         Gains    Losses
------------------------------------------------------------------------
1. Gain on sale of machinery, used in the business and   $4,000
 subject to an allowance for depreciation, held for
 more than 6 months...................................
2. Gain reported in 1957 (under section 453) on           6,000
 installment sale in 1956 of factory premises used in
 the business (including building and land, each held
 for more than 6 months)..............................
3. Gain reported in 1957 (under section 453) on           2,000
 installment sale in 1957 of land held for more than 6
 months, used in the business as a storage lot for
 trucks...............................................
4. Gain on proceeds from requisition by Government of       500
 boat, held for more than 6 months, used in the
 business and subject to an allowance for depreciation
5. Loss upon the destruction by fire of warehouse,      .......   $3,000
 held for more than 6 months and used in the business
 (excess of adjusted basis of warehouse over
 compensation by insurance, etc.).....................
6. Loss upon theft of unregistered bearer bonds, held   .......    5,000
 for more than 6 months...............................
7. Loss in storm of pleasure yacht, purchased in 1950   .......    1,000
 for $1,800 and having a fair market value of $1,000
 at the time of the storm.............................
                                                       ---------
8. Total gains........................................   12,500      ___
9. Total losses.......................................  .......    9,000
10. Excess of gains over losses.......................    3,500
------------------------------------------------------------------------


Since the aggregate of the recognized gains ($12,500) exceeds the 
aggregate of the recognized losses ($9,000), such gains and losses are 
treated under section 1231 as gains and losses from the sale or exchange 
of capital assets held for more than 6 months. For any taxable year 
beginning after December 31, 1957, and before January 1, 1970, the 
$5,000 loss upon theft of bonds (item 6) would not be

[[Page 339]]

taken into account under section 1231. See paragraph (e)(2) of this 
section.
    Example 2. If in example (1), A also had a loss of $4,000 from the 
sale under threat of condemnation of a capital asset acquired for profit 
and held for more than six months, then the gains ($12,500) would not 
exceed the losses ($9,000 plus $4,000, or $13,000). Neither the loss on 
that sale nor any of the other items set forth in example (1) would then 
be treated as gains and losses from the sale or exchanges of capital 
assets, but all of such items would be treated as ordinary gains and 
losses. Likewise, if A had no other gain or loss, the $4,000 loss would 
be treated as an ordinary loss.
    Example 3. A's yacht, used for pleasure and acquired for that use in 
1945 at a cost of $25,000, was requisitioned by the Government in 1957 
for $15,000. A sustained no loss deductible under section 165(c) and 
since no loss with respect to the requisition is recognizable, the loss 
will not be included in the computations under section 1231.
    Example 4. A, an individual, makes his income tax return on a 
calendar year basis. During 1970 trees on A's residential property which 
were planted in 1950 after the purchase of such property were destroyed 
by fire. The loss, which was in the amount of $2,000 after applying 
section 165(c)(3), was not compensated for by insurance or otherwise. 
During the same year A also recognized a $1,500 gain from insurance 
proceeds compensating him for the theft sustained in 1970 of a diamond 
brooch purchased in 1960 for personal use. A has no other gains or 
losses for 1970 from the involuntary conversion of property. Since the 
recognized losses exceed the recognized gains from the involuntary 
conversion for 1970 as a result of fire, storm, shipwreck, or other 
casualty, or from theft, of any property used in the trade or business 
or of any capital asset held for more than 6 months, neither the gain 
nor the loss is included in making the computations under section 1231.
    Example 5. The facts are the same as in example (4), except that A 
also recognized a gain of $1,000 from insurance proceeds compensating 
him for the total destruction by fire of a truck, held for more than 6 
months, used in A's business and subject to an allowance for 
depreciation. A has no other gains or losses for 1970 from the 
involuntary conversion of property. Since the recognized losses ($2,000) 
do not exceed the recognized gains ($2,500) from the involuntary 
conversion for 1970 as a result of fire, storm, shipwreck, or other 
casualty, or from theft, of any property used in the trade or business 
or of any capital asset held for more than 6 months, such gains and 
losses are included in making the computations under section 1231. Thus, 
if A has no other gains or losses for 1970 to which section 1231 
applies, the gains and losses from these involuntary conversions are 
treated under section 1231 as gains and losses from the sale or exchange 
of capital assets held for more than 6 months.
    Example 6. The facts are the same as in example (5) except that A 
also has the following recognized gains and losses for 1970 to which 
section 1231 applies:

 
                                                     Gains      Losses
 
Gain on sale of machinery, used in the business       $4,000
 and subject to an allowance for depreciation,
 held for more than 6 months....................
Gain reported in 1970 (under section 453) on           6,000
 installment sale in 1969 of factory premises
 used in the business (including building and
 land, each held for more than 6 months)........
Gain reported in 1970 (under section 453) on          $2,000
 installment sale in 1970 of land held for more
 than 6 months, used in the business as a
 storage lot for trucks.........................
Loss upon the sale in 1970 of warehouse, used in  ..........      $5,000
 the business and subject to an allowance for
 depreciation, held for more than 6 months......
                                                 ------------
    Total gains.................................      12,000       _____
    Total losses................................  ..........       5,000
 

    Since the aggregate of the recognized gains ($14,500) exceeds the 
aggregate of the recognized losses ($7,000), such gains and losses are 
treated under section 1231 as gains and losses from the sale or exchange 
of capital assets held for more than 6 months.
    Example 7. B, an individual, makes his income tax return on the 
calendar year basis. During 1970 furniture used in his business and held 
for more than 6 months was destroyed by fire. The recognized loss, after 
compensation by insurance, was $2,000. During the same year B recognized 
a $1,000 gain upon the sale of a parcel of real estate used in his 
business and held for more than 6 months, and a $6,000 loss upon the 
sale of stock held for more than 6 months. B has no other gains or 
losses for 1970 from the involuntary conversion, or the sale or exchange 
of, property. The $6,000 loss upon the sale of stock is not a loss to 
which section 1231 applies since the stock is not property used in the 
trade or business, as defined in section 1231(b). The $2,000 loss upon 
the destruction of the furniture is not a loss to which section 1231 
applies since the recognized losses ($2,000) exceed the recognized gains 
($0) from the involuntary conversion for 1970 as a result of fire, 
storm, shipwreck, or other casualty, or from theft, of any property used 
in the trade or business or of any capital asset held for more than 6 
months. Accordingly, the $1,000 gain upon the sale of real estate is 
considered to be gain from the sale or exchange of a capital asset held 
for more than 6 months since the gains ($1,000) to which section 1231 
applies exceed the losses ($0) to which such section applies.

[[Page 340]]

    Example 8. The facts are the same as in example (7) except that B 
also recognized a gain of $4,000 from insurance proceeds compensating 
him for the total destruction by fire of a freighter, held for more than 
6 months, used in B's business and subject to an allowance for 
depreciation. Since the recognized losses ($2,000) do not exceed the 
recognized gains ($4,000) from the involuntary conversion for 1970 as a 
result of fire, storm, shipwreck, or other casualty, or from theft, of 
any property used in the trade or business or of any capital asset held 
for more than 6 months, such gains and losses are included in making the 
computations under section 1231. Since the aggregate of the recognized 
gains to which section 1231 applies ($5,000) exceeds the aggregate of 
the recognized losses to which such section applies ($2,000), such gains 
and losses are treated under section 1231 as gains and losses from the 
sale or exchange of capital assets held for more than 6 months. The 
$6,000 loss upon the sale of stock is not taken into account in making 
such computation since it is not a loss to which section 1231 applies.

[T.D. 6500, 25 FR 12006, Nov. 26, 1960, as amended by T.D. 6841, 30 FR 
9309, July 27, 1965; T.D. 7369, 40 FR 29841, July 16, 1975; T.D. 7728, 
45 FR 72650, Nov. 3, 1980; T.D. 7829, 47 FR 38515, Sept. 1, 1982]



Sec.  1.1231-2  Livestock held for draft, breeding, dairy, 
or sporting purposes.

    (a)(1) In the case of cattle, horses, or other livestock acquired by 
the taxpayer after December 31, 1969, section 1231 applies to the sale, 
exchange, or involuntary conversion of such cattle, horses, or other 
livestock, regardless of age, held by the taxpayer for draft, breeding, 
dairy, or sporting purposes, and held by him:
    (i) For 24 months or more from the date of acquisition in the case 
of cattle or horses, or
    (ii) For 12 months or more from the date of acquisition in the case 
of such other livestock.
    (2) In the case of livestock (including cattle or horses) acquired 
by the taxpayer on or before December 31, 1969, section 1231 applies to 
the sale, exchange, or involuntary conversion of such livestock, 
regardless of age, held by the taxpayer for draft, breeding, or dairy 
purposes, and held by him for 12 months or more from the date of 
acquisition.
    (3) For the purposes of section 1231, the term livestock is given a 
broad, rather than a narrow, interpretation and includes cattle, hogs, 
horses, mules, donkeys, sheep, goats, fur-bearing animals, and other 
mammals. However, it does not include poultry, chickens, turkeys, 
pigeons, geese, other birds, fish, frogs, reptiles, etc.
    (b)(1) Whether or not livestock is held by the taxpayer for draft, 
breeding, dairy, or sporting purposes depends upon all of the facts and 
circumstances in each case. The purpose for which the animal is held is 
ordinarily shown by the taxpayer's actual use of the animal. However, a 
draft, breeding, dairy, or sporting purpose may be present if an animal 
is disposed of within a reasonable time after its intended use for such 
purpose is prevented or made undesirable by reason of accident, disease, 
drought, unfitness of the animal for such purpose, or a similar factual 
circumstance. Under certain circumstances, an animal held for ultimate 
sale to customers in the ordinary course of the taxpayer's trade or 
business may be considered as held for draft, breeding, dairy, or 
sporting purposes. However, an animal is not held by the taxpayer for 
draft, breeding, dairy, or sporting purposes merely because it is 
suitable for such purposes or merely because it is held by the taxpayer 
for sale to other persons for use by them for such purposes. 
Furthermore, an animal held by the taxpayer for other purposes is not 
considered as held for draft, breeding, dairy, or sporting purposes 
merely because of a negligible use of the animal for such purposes or 
merely because of the use of the animal for such purposes as an ordinary 
or necessary incident to the other purposes for which the animal is 
held. See paragraph (c) of this section for the rules to be used in 
determining when horses are held for racing purposes and, therefore, are 
considered as held for sporting purposes.
    (2) The application of this paragraph is illustrated by the 
following examples:

    Example 1. An animal intended by the taxpayer for use by him for 
breeding purposes is discovered to be sterile or unfit for the breeding 
purposes for which it was held, and is disposed of within a reasonable 
time thereafter. This animal is considered as held for breeding 
purposes.

[[Page 341]]

    Example 2. The taxpayer retires from the breeding or dairy business 
and sells his entire herd, including young animals which would have been 
used by him for breeding or dairy purposes if he had remained in 
business. These young animals are considered as held for breeding or 
dairy purposes. The same would be true with respect to young animals 
which would have been used by the taxpayer for breeding or dairy 
purposes but which are sold by him in reduction of his breeding or dairy 
herd, because of, for example, drought.
    Example 3. A taxpayer in the business of raising hogs for slaughter 
customarily breeds sows to obtain a single litter to be raised by him 
for sale, and sells these brood sows after obtaining the litter. Even 
though these brood sows are held for ultimate sale to customers in the 
ordinary course of the taxpayer's trade or business, they are considered 
as held for breeding purposes.
    Example 4. A taxpayer in the business of raising horses for sale to 
others for use by them as draft horses uses them for draft purposes on 
his own farm in order to train them. This use is an ordinary or 
necessary incident to the purpose of selling the animals, and, 
accordingly, these horses are not considered as held for draft purposes.
    Example 5. The taxpayer is in the business of raising registered 
cattle for sale to others for use by them as breeding cattle. It is the 
business practice of this particular taxpayer to breed the offspring of 
his herd which he is holding for sale to others prior to sale in order 
to establish their fitness for sale as registered breeding cattle. In 
such case, the taxpayer's breeding of such offspring is an ordinary and 
necessary incident to his holding them for the purpose of selling them 
as bred heifers or proven bulls and does not demonstrate that the 
taxpayer is holding them for breeding purposes. However, those cattle 
held by the taxpayer as additions or replacements to his own breeding 
herd to produce calves are considered to be held for breeding purposes, 
even though they may not actually have produced calves.
    Example 6. A taxpayer, engaged in the business of buying cattle and 
fattening them for slaughter, purchased cows with calf. The calves were 
born while the cows were held by the taxpayer. These cows are not 
considered as held for breeding purposes.

    (c)(1) For purposes of paragraph (b) of this section, a horse held 
for racing purposes shall be considered as held for sporting purposes. 
Whether a horse is held for racing purposes shall be determined in 
accordance with the following rules:
    (i) A horse which has actually been raced at a public race track 
shall, except in rare and unusual circumstances, be considered as held 
for racing purposes.
    (ii) A horse which has not been raced at a public track shall be 
considered as held for racing purposes if it has been trained to race 
and other facts and circumstances in the particular case also indicate 
that the horse was held for this purpose. For example, assume that the 
taxpayer maintains a written training record on all horses he keeps in 
training status, which shows that a particular horse does not meet 
objective standards (including, but not limited to, such considerations 
as failure to achieve predetermined standards of performance during 
training, or the existence of a physical or other defect) established by 
the taxpayer for determining the fitness and quality of horses to be 
retained in his racing stable. Under such circumstances, if the taxpayer 
disposes of the horse within a reasonable time after he determined that 
it did not meet his objective standards for retention, the horse shall 
be considered as held for racing purposes.
    (iii) A horse which has neither been raced at a public track nor 
trained for racing shall not, except in rare and unusual circumstances, 
be considered as held for racing purposes.
    (2) This paragraph may be illustrated by the following examples:

    Example 1. The taxpayer breeds, raises, and trains horses for the 
purpose of racing. Every year he culls some horses from his racing 
stable. In 1971, the taxpayer decided that in order to prevent his 
racing stable from getting too large to be effectively operated he must 
cull six horses from it. All six of the horses culled by the taxpayer 
had been raced at public tracks in 1970. Under subparagraph (1)(i) of 
this paragraph, all these horses are considered as held for racing 
purposes.
    Example 2. Assume the same facts as in example (1). Assume further 
that the taxpayer decided to cull four more horses from his racing 
stable in 1971. All these horses had been trained to race but had not 
been raced at public tracks. The taxpayer culled these four horses 
because the training log which the taxpayer maintains on all the horses 
he trains showed these horses to be unfit to remain in his racing 
stable. Horse A was culled because it developed shin splints during 
training. Horses B and C were culled because of poor temperament. B 
bolted every time a rider tried to mount it, and C became extremely 
nervous when it was placed in the starting gate. Horse D was culled 
because it

[[Page 342]]

did not qualify for retention under one of the objective standards the 
taxpayer had established for determining which horses to retain since it 
was unable to run a specified distance in a minimum time. These four 
horses were disposed of within a reasonable time after the taxpayer 
determined that they were unfit to remain in his stable. Under 
subparagraph (1)(ii) of this paragraph, all these horses are considered 
as held for racing purposes.

[T.D. 7141, 36 FR 18792, Sept. 22, 1971]



Sec.  1.1232-1  Bonds and other evidences of indebtedness; scope of section.

    (a) In general. Section 1232 applies to any bond, debenture, note, 
or certificate or other evidence of indebtedness (referred to in this 
section and Sec. Sec.  1.1232-3 and 1.1232-3A as an obligation) which is 
a capital asset in the hands of the taxpayer, and which is issued by any 
corporation, or by any government or political subdivision thereof. In 
general, section 1232(a)(1) provides that the retirement of an 
obligation, other than certain obligations issued before January 1, 
1955, is considered to be an exchange and, therefore, is usually subject 
to capital gain or loss treatment. In general, section 1232(a)(2)(B) 
provides that in the case of a gain realized on the sale or exchange of 
certain obligations issued at a discount after December 31, 1954, which 
are either corporate bonds issued on or before May 27, 1969, or 
government bonds, the amount of gain equal to such discount or, under 
certain circumstances, the amount of gain equal to a specified portion 
of such discount, constitutes ordinary income. In the case of certain 
corporate obligations issued after May 27, 1969, in general, section 
1232(a)(3) provides for the inclusion as interest in gross income of a 
ratable portion of original issue discount for each taxable year over 
the life of the obligation, section 1232(a)(3)(E) provides for an 
increase in basis equal to the original issue discount included in gross 
income, and section 1232(a)(2)(A) provides that any gain realized on 
such an obligation held more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) 
shall be considered gain from the sale or exchange of a capital asset 
held more than 1 year (6 months for taxable years beginning before 1977; 
9 months for taxable years beginning in 1977). For the requirements for 
reporting original issue discount on certain obligations issued after 
May 27, 1969, see section 6049(a) and the regulations thereunder. 
Section 1232(c) treats as ordinary income a portion of any gain realized 
upon the disposition of coupon obligations which were acquired after 
August 16, 1954, and before January 1, 1958, without all coupons 
maturing more than 12 months after purchase attached, and coupon 
obligations which were acquired after December 31, 1957, without all 
coupons maturing after the date of purchase attached.
    (b) Requirement that obligations be capital assets. In order for 
section 1232 to be applicable, an obligation must be a capital asset in 
the hands of the taxpayer. See section 1221 and the regulations 
thereunder. Obligations held by a dealer in securities (except as 
provided in section 1236) or obligations arising from the sale of 
inventory or personal services by the holder are not capital assets. 
However, obligations held by a financial institution, as defined in 
section 582(c) (relating to treatment of losses and gains on bonds of 
certain financial institutions) for investment and not primarily for 
sale to customers in the ordinary course of the financial institution's 
trade or business, are capital assets. Thus, with respect ot obligations 
held as capital assets by such a financial institution which are 
corporate obligations to which section 1232(a)(3) applies, there is 
ratable inclusion of original issue discount as interest in gross income 
under paragraph (a) of Sec.  1.1232-3A, and gain on a sale or exchange 
(including retirement) may be subject to ordinary income treatment under 
section 582(c) and paragraph (a)(1) of Sec.  1.1232-3.
    (c) Face-amount certificates--(1) In general. For purposes of 
section 1232, this section and Sec. Sec.  1.1232-3 and 1.1232-3A, the 
term other evidence of indebtedness includes face amount certificates as 
defined in section 2(a)(15) and 4 of the Investment Company Act of 1940 
(15 U.S.C. 80a-2 and 80a-4).
    (2) Amounts received in taxable years beginning prior to January 1, 
1964. Amounts received in taxable years beginning prior to January 1, 
1964 under face amount certificates which were

[[Page 343]]

issued after December 31, 1954, are subject to the limitation on tax 
under section 72(e)(3). See paragraph (g) of Sec.  1.72-11 (relating to 
limit on tax attributable to receipt of a lump sum received as an 
annuity payment). However, section 72(e)(3) does not apply to any such 
amounts received in taxable years beginning after December 31, 1963.
    (3) Certificates issued after December 31, 1975. In the case of a 
face-amount certificate issued after December 31, 1975 (other than such 
a certificate issued pursuant to a written commitment which was binding 
on such date and at all times thereafter), the provisions of section 
1232(a)(3) (relating to the ratable inclusion of original issue discount 
in gross income) shall apply. See section 1232-3A(f). For treatment of 
any increase in basis under section 1232(a)(3)(A) as consideration paid 
for purposes of computing the investment in the contract under section 
72, see Sec.  1.72-6(c)(4).
    (d) Certain deposits in financial institutions. For purposes of 
section 1232, this section and Sec. Sec.  1.1232-3 and 1.1232-3A, the 
term other evidence of indebtedness includes certificates of deposit, 
time deposits, bonus plans, and other deposit arrangements with banks, 
domestic building and loan associations, and similar financial 
institutions. For application of section 1232 to such deposits, see 
paragraph (e) of Sec.  1.1232-3A. However, section 1232, this section, 
and Sec. Sec.  1.1232-2 through 1.1232-4 shall not apply to such 
deposits made prior to January 1, 1971. For treatment of renewable 
certificates of deposit, see paragraph (e)(4) of Sec.  1.1232-3A.

[T.D. 7154, 36 FR 25000, Dec. 28, 1971, as amended by T.D. 7311, 39 FR 
11880, Apr. 1, 1974; T.D. 7365, 40 FR 27936, July 2, 1975; T.D. 7728, 45 
FR 72650, Nov. 3, 1980; T.D. 9849, 84 FR 9237, Mar. 14, 2019]



Sec.  1.1232-2  [Reserved]



Sec.  1.1232-3  Gain upon sale or exchange of obligations issued 
at a discount after December 31, 1954.

    (a) General rule; sale or exchange--(1) Obligations issued by a 
corporation after May 27, 1969--(i) General rule. Under section 
1232(a)(2)(A), in the case of gain realized upon the sale or exchange of 
an obligation issued at a discount by a corporation after May 27, 1969 
(other than an obligation subject to the transitional rule of 
subparagraph (4) of this paragraph), and held by the taxpayer for more 
than 1 year (6 months for taxable years beginning before 1977; 9 months 
for taxable years beginning in 1977):
    (a) If at the time of original issue there was no intention to call 
the obligation before maturity, such gain shall be considered as long-
term capital gain, or
    (b) If at the time of original issue there was an intention to call 
the obligation before maturity, such gain shall be considered ordinary 
income to the extent it does not exceed the excess of:
    (1) An amount equal to the entire original issue discount, over
    (2) An amount equal to the entire original issue discount multiplied 
by a fraction the numerator of which is the sum of the number of 
complete months and any fractional part of a month elapsed since the 
date of original issue and the denominator of which is the number of 
complete months and any fractional part of a month from the date of 
original issue to the stated maturity date.

The balance, if any, of the gain shall be considered as long-term 
capital gain. The amount described in (2) of this subdivision (b) in 
effect reduces the amount of original issue discount to be treated as 
ordinary income under this subdivision (b) by the amounts previously 
includible (regardless of whether included) by all holders (computed, 
however, as to any holder without regard to any purchase allowance under 
paragraph (a)(2)(ii) of Sec.  1.1232-3A and without regard to whether 
any holder purchased at a premium as defined in paragraph (d)(2) of 
Sec.  1.1232-3).
    (ii) Cross references. For definition of the terms original issue 
discount and intention to call before maturity, see paragraphs (b) (1) 
and (4) respectively of this section. For definition of the term date of 
original issue, see paragraph (b)(3) of this section. For computation of 
the number of complete months and any fractional portion of a month, see 
paragraph (a)(3) of Sec.  1.1232-3A.
    (iii) Effect of section 582(c). Gain shall not be considered to be 
long-term capital gain under subdivision (i) of this subparagraph if 
section 582(c) (relating

[[Page 344]]

to treatment of losses and gains on bonds of certain financial 
institutions) applies.
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. On January 1, 1970, A, a calendar-year taxpayer, 
purchases at original issue for cash of $7,600, M Corporation's 10-year, 
5 percent bond which has a stated redemption price at maturity of 
$10,000. On January 1, 1972, A sells the bond to B, for $9,040. A has 
previously included $480 of the original issue discount in his gross 
income (see example (1) of paragraph (d) of Sec.  1.1232-3A) and 
increased his basis in the bond by that amount to $8,080 (see paragraph 
(c) of Sec.  1.1232-3A). Thus, if at the time of original issue there 
was no intention to call the bond before maturity, A's gain of $960 
(amount realized, $9,040, less adjusted basis, $8,080) is considered 
long-term capital gain.
    Example 2. (i) Assume the same facts as in example (1), except that 
at the time of original issue there was an intention to call the bond 
before maturity. The amount of the entire gain includible by A as 
ordinary income under subparagraph (1)(i) of this paragraph is 
determined as follows:

(1) Entire original issue discount (stated redemption price       $2,400
 at maturity, $10,000, minus issue price, $7,600)...........
(2) Less: Line (1), $2,400, multiplied by months elapsed            $480
 since date of original issue, 24, divided by months from
 such date to stated maturity date, 120.....................
                                                             -----------
(3) Maximum amount includible by A as ordinary income.......      $1,920
 


Since the amount in line (3) is greater than A's gain, $960, A's entire 
gain is includible as ordinary income.
    (ii) On January 1, 1979, B, a calendar-year taxpayer, sells the bond 
to C for $10,150. Assume that B has included $120 of original issue 
discount in his gross income for each taxable year he held the bond (see 
example (2) of paragraph (d) of Sec.  1.1232-3A) and therefore increased 
his basis by $840 (i.e., $120 each year x 7 years) to $9,880. B's gain 
is therefore $270 (amount realized, $10,150, less basis, $9,880). The 
amount of such gain includible by B as ordinary income under 
subparagraph (1)(i) of this paragraph is determined as follows:

(1) Entire original issue discount (as determined in part         $2,400
 (i) of this example).......................................
(2) Less: Line (1), $2,400, multiplied by months elapsed          $2,160
 since date of original issue, 108, divided by months from
 such date to stated maturity date, 120.....................
                                                             -----------
(3) Maximum amount includible by B as ordinary income.......        $240
 

Since the amount in line (3) is less than B's gain, $270, only $240 of 
B's gain is includible as ordinary income. The remaining portion of B's 
gain, $30, is considered long-term capital gain.

    (3) Obligations issued by a corporation on or before May 27, 1969, 
and government obligations. Under section 1232(a)(2)(B), if gain is 
realized on the sale or exchange after December 31, 1957, of an 
obligation held by the taxpayer more than 6 months, and if the 
obligation either was issued at a discount after December 31, 1954, and 
on or before May 27, 1969, by a corporation or was issued at a discount 
after December 31, 1954, by or on behalf of the United States or a 
foreign country, or a political subdivision of either, then such gain 
shall be considered ordinary income to the extent it does not exceed:
    (i) An amount equal to the entire original issue discount, or
    (ii) If at the time of original issue there was no intention to call 
the obligation before maturity, a portion of the original issue discount 
determined in accordance with paragraph (c) of this section,

And the balance, if any, of the gain shall be considered as long-term 
capital gain. For the definition of the terms original issue discount 
and intention to call before maturity, see paragraphs (b) (1) and (4) 
respectively of this section. See section 1037(b) and paragraph (b) of 
Sec.  1.1037-1 for special rules which are applicable in applying 
section 1232(a)(2)(B) and this subparagraph to gain realized on the 
disposition or redemption of obligations of the United States which were 
received from the United States in an exchange upon which gain or loss 
is not recognized because of section 1037(a) (or so much of section 1031 
(b) or (c) as relates to section 1037(a)).
    (4) Transitional rule. Subparagraph (3) of this paragraph (in lieu 
of subparagraph (1) of this paragraph) shall apply to an obligation 
issued by a corporation pursuant to a written commitment which was 
binding on May 27, 1969, and at all times thereafter.
    (5) Obligations issued after December 31, 1954, and sold or 
exchanged before January 1, 1958. Gain realized upon the sale or 
exchange before January 1, 1958, of an obligation issued at a discount 
after

[[Page 345]]

December 31, 1954, and held by the taxpayer for more than 6 months, 
shall be considered ordinary income to the extent it equals a specified 
portion of the original issue discount, and the balance, if any, of the 
gain shall be considered as long-term capital gain. The term original 
issue discount is defined in paragraph (b)(1) of this section. The 
computation of the amount of gain which constitutes ordinary income is 
illustrated in paragraph (c) of this section.
    (6) Obligations issued before January 1, 1955. Whether gain 
representing original issue discount realized upon the sale or exchange 
of obligations issued at a discount before January 1, 1955, is capital 
gain or ordinary income shall be determined without reference to section 
1232.
    (b) Definitions--(1) Original issue discount--(i) In general. For 
purposes of section 1232, the term original issue discount means the 
difference between the issue price and the stated redemption price at 
maturity. The stated redemption price is determined without regard to 
optional call dates.
    (ii) De minimis rule. If the original issue discount is less than 
one-fourth of 1 percent of the stated redemption price at maturity 
multiplied by the number of full years from the date of original issue 
to maturity, then the discount shall be considered to be zero. For 
example, a 10-year bond with a stated redemption price at maturity of 
$100 issued at $98 would be regarded as having an original issue 
discount of zero. Thus, any gain realized by the holder would be a long-
term capital gain if the bond was a capital asset in the hands of the 
holder and held by him for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977). 
However, if the bond were issued at $97.50 or less, the original issue 
discount would not be considered zero.
    (iii) Stated redemption price at maturity--(a) Definition. Except as 
otherwise provided in this subdivision (iii), the term stated redemption 
price at maturity means the amount fixed by the last modification of the 
purchase agreement, including dividends, interest, and any other 
amounts, however designated, payable at that time. If any amount based 
on a fixed rate of simple or compound interest is actually payable or 
will be treated as constructively received under section 451 and the 
regulations thereunder either: (1) At fixed periodic intervals of one 
year or less during the entire term of an obligation, or (2) except as 
provided in subdivision (e) of this paragraph (b)(1)(iii), at maturity 
in the case of an obligation with a term of one year or less, any such 
amount payable at maturity shall not be included in determining the 
stated redemption price at maturity. For purposes of subdivision (a)(2) 
of this paragraph (b)(1)(iii), the term of an obligation shall include 
any renewal period with respect to which, under the terms of the 
obligation, the holder may either take action or refrain from taking 
action which would prevent the actual or constructive receipt of any 
interest on such obligation until the expiration of any such renewal 
period. To illustrate this paragraph (b)(1)(iii), assume that a note 
which promises to pay $1,000 at the end of three years provides for 
additional amounts labeled as interest to be paid at the rate of $50 at 
the end of the first year, $50 at the end of the second year, and $120 
at the end of the third year. The stated redemption price at maturity 
will be $1,070 since only $50 of the $120 payable at the end of the 
third year is based on a fixed rate of simple or compound interest. If, 
however, the $120 were payable at the end of the second year, so that 
only $50 in addition to principal would be payable at the end of the 
third year, then under the rule for serial obligations contained in 
subparagraph (2)(iv)(c) of this paragraph, the $1,000 note is treated as 
consisting of two series. The first series is treated as maturing at the 
end of the second year at a stated redemption price of $70. The second 
series is treated as maturing at the end of the third year at a stated 
redemption price of $1,000. For the calculation of issue price and the 
allocation of original issue discount with respect to each such series, 
see example (3) of subparagraph (2)(iv)(f) of this paragraph.
    (b) Special rules. In the case of face -amount certificates, the 
redemption price at maturity is the price as modified through changes 
such as extensions of the purchase agreement and

[[Page 346]]

includes any dividends which are payable at maturity. In the case of an 
obligation issued as part of an investment unit consisting of such 
obligation and an option (which is not excluded by (c) of this 
subdivision (iii)), security, or other property, the term stated 
redemption price at maturity means the amount payable on maturity in 
respect of the obligation, and does not include any amount payable in 
respect of the option, security, or other property under a repurchase 
agreement or option to buy or sell the option, security, or other 
property. For application of this subdivision to certain deposits in 
financial institutions, see paragraph (e) of Sec.  1.1232-3A.
    (c) Excluded option. An option is excluded by this subdivision (c) 
if it is an option to which paragraph (a) of Sec.  1.61-15 applies or if 
it is an option, referred to in paragraph (a) of Sec.  1.83-7, granted 
in connection with performance of services to which section 421 does not 
apply.
    (d) Obligation issued in installments. If an obligation is issued by 
a corporation under terms whereby the holder makes installment payments, 
then the stated redemption price for each installment payment shall be 
computed in a manner consistent with the rules contained in subparagraph 
(2)(iv) of this paragraph for computing the issue price for each series 
of a serial obligation. For application of this subdivision (d) to 
certain open account deposit arrangements, see examples (1) and (2) of 
paragraph (e)(5)(ii) of Sec.  1.1232-3A.
    (e) Application of definition. Subdivision (a)(2) of this paragraph 
(b)(1)(iii) shall not apply:
    (1) For taxable years beginning before September 19, 1979, if for 
the issuer's last taxable year beginning before September 19, 1978, the 
rules of Sec.  1.163-4 were properly applied by the issuer, or
    (2) In the case of an obligation with a term of six months or less 
held by a nonresident alien individual or foreign corporation, but only 
for purposes of the appliction of sections 871 and 881.
    (iv) Carryover of original issue discount. If in pursuance of a plan 
of reorganization an obligation is received in an exchange for another 
obligation, and if gain or loss is not recognized in whole or in part on 
such exchange of obligations by reason, for example, of section 354 or 
356, then the obligation received shall be considered to have the same 
original issue discount as the obligation surrendered reduced by the 
amount of gain (if any) recognized as ordinary income upon such exchange 
of obligations, and by the amount of original issue discount with 
respect to the obligation surrendered which was included as interest 
income under the ratable inclusion rules of sections 1232(a)(3) and 
1.1232-3A. If inclusion as interest of the ratable monthly portion of 
original issue discount is required under section 1232(a)(3) with 
respect to the obligation received, see paragraph (a)(2)(iii) of Sec.  
1.1232-3A for computation of the ratable monthly portion of original 
issue discount. For special rules in connection with certain exchanges 
of U.S. obligations, see section 1037.
    (2) Issue price defined--(i) In general. The term issue price in the 
case of obligations registered with the Securities and Exchange 
Commission means the initial offering price to the public at which price 
a substantial amount of such obligations were sold. For this purpose, 
the term the public does not include bond houses and brokers, or similar 
persons or organizations acting in the capacity of underwriters or 
wholesalers. Ordinarily, the issue price will be the first price at 
which the obligations were sold to the public, and the issue price will 
not change if, due to market developments, part of the issue must be 
sold at a different price. When obligations are privately placed, the 
issue price of each obligation is the price paid by the first buyer of 
the particular obligation, irrespective of the issue price of the 
remainder of the issue. In the case of an obligation issued by a foreign 
obligor, the issue price shall be increased by the amount, if any, of 
interest equalization tax paid under section 4911 (and not credited, 
refunded, or reimbursed) on the acquisition of the obligation by the 
first buyer. In the case of an obligation which is convertible into 
stock or another obligation, the issue price includes any amount paid in 
respect of the conversion privilege. However, in the case of an 
obligation issued as part of an investment unit (as defined in

[[Page 347]]

subdivision (ii)(a) of this subparagraph), the issue price of the 
obligation includes only that portion of the initial offering price or 
price paid by the first buyer properly allocable to the obligation under 
the rules prescribed in subdivision (ii) of this subparagraph. The terms 
initial offering price and price paid by the first buyer include the 
aggregate payments made by the purchaser under the purchase agreement, 
including modifications thereof. Thus, all amounts paid by the purchaser 
under the purchase agreement or a modification of it are included in the 
issue price (but in the case of an obligation issued as part of an 
investment unit, only to the extent allocable to such obligation under 
subdivision (ii) of this subparagraph), such as amounts paid upon face-
amount certificates or installment trust certificates in which the 
purchaser contracts to make a series of payments which will be 
returnable to the holder with an increment at a later date.
    (ii) Investment units consisting of obligations and property--(a) In 
general. An investment unit, within the meaning of this subdivision (ii) 
and for purposes of section 1232, consists of an obligation and an 
option, security, or other property. For purposes of this subparagraph, 
the initial offering price of an investment unit shall be allocated to 
the individual elements of the unit on the basis of their respective 
fair market values. However, if the fair market value of the option, 
security, or other property is not readily ascertainable (within the 
meaning of paragraph (c) of Sec.  1.421-6), then the portion of the 
initial offering price or price paid by the first buyer of the unit 
which is allocable to the obligation issued as part of such unit shall 
be ascertained as of the time of acquisition of such unit by reference 
to the assumed price at which such obligation would have been issued had 
it been issued apart from such unit. The assumed price of the obligation 
shall be ascertained by comparison to the yields at which obligations of 
a similar character which are not issued as part of an investment unit 
are sold in arm's length transactions, and by adjusting the price of the 
obligation in question to this yield. The adjustment may be made by 
subtracting from the face amount of the obligation the total present 
value of the interest foregone by the purchaser as a result of 
purchasing the obligation at a lower yield as part of an investment 
unit. In most cases, assumed price may also be determined in a similar 
manner through the use of standard bond tables. Any reasonable method 
may be used in selecting an obligation for comparative purposes. 
Obligations of the same grade and classification shall be used to the 
extent possible, and proper regard shall be given, with respect to both 
the obligation in question and the comparative obligation, to the 
solvency of the issuer, the nature of the issuer's trade or business, 
the presence and nature of security for the obligation, the geographic 
area in which the loan is made, and all other factors relevant to the 
circumstances. An obligation which is convertible into stock or another 
obligation must not be used as a comparative obligation (except where 
the investment unit contains an obligation convertible into stock or 
another obligation), since such an obligation would not reflect the 
yield attributable solely to the obligation element of the investment 
unit.
    (b) Agreement as to assumed price. In the case of an investment unit 
which is privately placed, the assumed price at which the obligation 
would have been issued had it been issued apart from such unit may be 
agreed to by the issuer and the original purchaser of the investment 
unit in writing on or before the date of purchase. Alternatively, an 
agreement between the issuer and original purchaser may specify the rate 
of interest which would have been paid on the obligation if the 
transaction were one not involving the issuance of options, and an 
assumed issue price may be determined (in the manner described in (a) of 
this subdivision) from such agreed assumed rate of interest. An assumed 
price based upon such an agreement between the parties will generally be 
presumed to be the issue price of the obligation with respect to the 
issuer, original purchaser, and all subsequent holders: Provided, That 
the agreement was made in arm's length negotiations between parties 
having adverse interests: And, provided further, That such price does 
not, under the

[[Page 348]]

rules stated in (a) of this subdivision, appear to be clearly erroneous. 
An assumed issue price agreed to by the parties as provided herein will 
not be considered clearly erroneous if it is not less than the face 
value adjusted (in the manner described in (a) of this subdivision) to a 
yield which is one percentage point greater than the actual rate of 
interest payable on the obligation. Similarly, if the agreement between 
the parties specifies an agreed assumed rate of interest (in lieu of an 
agreed assumed issue price) and such agreed rate is not more than 1 
percentage point greater than the actual rate payable on the obligation, 
an adjusted issue price based upon such agreed assumed rate of interest 
will not be considered clearly erroneous.
    (c) Cross references. For rules relating to the deductibility by the 
issuing corporation of bond discount resulting from an allocation under 
the rule stated in (a) of this subdivision, see Sec. Sec.  1.163-3 and 
1.163-4. For rules relating to the basis of obligations and options, 
securities, or other property acquired in investment units, see Sec.  
1.1012-1(d). For rules relating to certain reporting requirements with 
respect to options acquired in connection with evidences of indebtedness 
and for the tax treatment of such options, see Sec.  1.61-15, and 
section 1234 and the regulations thereunder. With respect to the tax 
consequences to the issuing corporation upon the exercise of options 
issued in connection with evidences of indebtedness to which this 
section applies, see section 1032 and the regulations thereunder.
    (d) Examples. The application of the principles set forth in this 
subdivision (ii) may be illustrated by the following examples in each of 
which it is assumed that there was no intention to call the note before 
maturity:

    Example 1. M Corporation is a small manufacturer of electronic 
components located in the southwestern United States. On January 1, 
1969, in consideration for the payment of $41,500, M issues to X its 
unsecured note for $40,000 together with warrants to purchase 3,000 
shares of M stock at $10 per share at any time during the term of the 
note. The note is payable in 4 years and provides for interest at the 
rate of 5 percent per year, payable semiannually. The fair market values 
of the note and the warrants are not readily ascertainable. Assume that 
companies in the same industry as M Corporation, and similarly situated 
both financially and geographically, are generally able to borrow money 
on their unsecured notes at an annual interest rate of 6 percent. Using 
a present value table, the calculation of the issue price of a 5 
percent, 4 year, $40,000 note, discounted to yield 6 percent compounded 
semiannually is made as follows:

------------------------------------------------------------------------
             (1)                  (2)             (3)          (2) x (3)
------------------------------------------------------------------------
                                           Factor for present
                                Amount    value discounted at   Present
 Semiannual interest period   payable at     3 percent per      value of
                               5 percent         period         payment
------------------------------------------------------------------------
1...........................      $1,000               0.9709    $970.90
2...........................       1,000                .9426     942.60
3...........................       1,000                .9151     915.10
4...........................       1,000                .8885     888.50
5...........................       1,000                .8626     862.60
6...........................       1,000                .8375     837.50
7...........................       1,000                .8131     813.10
8...........................       1,000                .7894     789.40
8...........................      40,000                .7804  31,576.00
------------------------------------------------------------------------
  Total present value of note discounted at 6 percent,         38,595.70
   compounded semiannually...................................
------------------------------------------------------------------------

    The same result may be reached through the use of a standard bond 
table or by the following present value calculation:

Present value of annuity of $1,000 payable over 8 periods at   $7,019.70
 3 percent per period = 1000 x 7.0197 =.....................
Add: Present value of principal (as calculated above).......   31,576.00
                                                             -----------
    Total...................................................  $38,595.70
 


Accordingly, the assumed price at which M's note would have been issued 
had it been issued without stock purchase warrants, i.e., that portion 
of the $41,500 price paid by X which is allocable to M's note, is 
$38,596 (rounded). Since the price payable on redemption of M's note at 
maturity is $40,000, the original issue discount on M's note is $1,404 
($40,000 minus $38,596). Under the rules stated in Sec.  1.163-3, M is 
entitled to a deduction, to be prorated or amortized over the life of 
the note, equal to this original issue discount on the note. The excess 
of the price for the unit over the portion of such price allocable to 
the note, $2,904 ($41,500 minus $38,596), is allocable to and is the 
basis of the stock purchase warrants acquired by X in connection with 
M's note. Upon the exercise of X's warrants, M will be allowed no 
deduction and will have no income. Upon maturity of the note X will 
receive $40,000 from M, of which $1,404, the amount of the original 
issue discount, will be taxable as ordinary income. If X were to 
transfer the note at its face amount to A 2 years after the issue date, 
X would realize, under section 1232(a)(2)(B), ordinary income of $702 
(one-half of $1,404).
    Example 2. (1) On January 1, 1969, N Corporation negotiates with Y, 
a small business investment company, for a loan in the

[[Page 349]]

amount of $51,500 in consideration of which N Corporation issues to Y 
its unsecured 5-year note for $50,000, together with warrants to 
purchase 2,000 shares of N stock at $5 per share at any time during the 
term of the note. The note provides for interest of 6 percent, payable 
semiannually. The fair market values of the note and warrants are not 
readily ascertainable. The loan agreement between Y and N contains a 
provision, agreed to in arms-length bargaining between the parties, that 
a rate of 7 percent payable semiannually would have been applied to the 
loan if warrants were not issued as part of the consideration for the 
loan. The issue price of the note is $47,921 (rounded), determined with 
the use of a standard bond table, or computed in the manner illustrated 
in Example 1 or in the following alternative manner:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                               (1)                                      (2)           (3)            (4)                   (5)               (4) x (5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Interest foregone     Factor for present     Present value
                         Interest period                           Interest rate   Principal   for period (\1/   value discounted at 3\1/   of interest
                                                                   differential                      2\%)         2\ percent per period      foregone
--------------------------------------------------------------------------------------------------------------------------------------------------------
1...............................................................       1%(7%-6%)     $50,000                250                   0.9662         $241.53
2...............................................................              1%      50,000                250                    .9335          233.38
3...............................................................              1%      50,000                250                    .9019          225.48
4...............................................................              1%      50,000                250                    .8714          217.85
5...............................................................              1%      50,000                250                    .8420          210.50
6...............................................................              1%      50,000                250                    .8135          203.38
7...............................................................              1%      50,000                250                    .7860          196.50
8...............................................................              1%      50,000                250                    .7594          189.85
9...............................................................              1%      50,000                250                    .7337          183.43
10..............................................................              1%      50,000                250                    .7089          177.25
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total present value of interest foregone............................................................................................       $2,079.15
                                                                                                                                         ===============
Principal...............................................................................................................................       50,000.00
Less: Total present value of interest foregone..........................................................................................        2,079.15
                                                                                                                                         ---------------
    Issue price.........................................................................................................................       47,920.85
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The calculation of present value of interest foregone may also be 
made as follows:
    Present value of annuity of $250 discounted for 10 periods at 3\1/2\ 
percent per period = $250 x 8.3166 = $2,079.15.
    The total present value of interest foregone, $2,079, is also the 
original issue discount attributable to the note ($50,000 -$47,921). 
Under (b) of this subdivision, since the agreed assumed rate of interest 
of 7 percent is not more than 1 percentage point greater than the actual 
rate payable on the note, determination of the issue price of the note 
(and original issue discount) based upon such assumed rate will be 
presumed to be correct and will not be considered clearly erroneous, 
provided that both N and Y adhere to such determination. Under the rules 
in Sec.  1.163-3, N is entitled to a deduction, to be prorated or 
amortized over the life of the note, equal to the original issue 
discount on the note. The excess of the price paid for the unit over the 
portion of such price allocable to the note, $3,579 ($51,500-$47,921) is 
allocable to and is the basis of the stock purchase warrants acquired by 
Y in connection with N's note. Upon the exercise or sale of the warrants 
by Y, N will be allowed no deduction and will have no income. Upon 
maturity of the note Y will receive $50,000 from N, of which $2,079, the 
amount of the original issue discount, will be taxable as ordinary 
income. If Y were to transfer the note at its face value to B 2\1/2\ 
years after the issue date, Y would realize, under section 
1232(a)(2)(B), ordinary income of $1,039.50 (one-half of $2,079).
    (2) Assume that instead of the parties agreeing on an assumed 
interest rate at which the obligation would have been issued without the 
warrants, the parties agreed that the obligation at the actual 6 percent 
rate would have been issued without the warrants at a discounted price 
of $48,000. In this situation the agreed assumed issue price is presumed 
to be correct since it is not less than the face value adjusted (in the 
manner illustrated in part (1) of this example) to a yield which is one 
percentage point greater than the actual rate of interest payable on the 
obligation ($47,921).
    Example 3. O Corporation is a small advertising company located in 
the northeastern United States. Z is a tax-exempt organization. In 
consideration for the payment of $60,000, O issues to Z, in a 
transaction not within the scope of section 503(b), its unsecured 5-year 
note for $60,000, together with warrants to purchase 6,000 shares of O 
stock at $10 per share at any time during the term of the note. The note 
is subject to quarterly amortization at the rate of $3,000 per quarter, 
and provides for interest on the outstanding unpaid balance at an annual 
rate of 6 percent payable quarterly (1\1/2\ percent per quarter). The 
fair market values of the notes

[[Page 350]]

and warrants are not readily ascertainable. The loan agreement between O 
and Z contains a recital that if the $60,000 note had been issued 
without the warrants only $45,000 would have been paid for it. An 
examination of relevant facts indicates that companies in the same 
industry as O Corporation, and similarly situated both financially and 
geographically, are able to borrow money on their unsecured notes at an 
annual interest cost of 8\1/2\ percent payable quarterly (2\1/8\ percent 
per quarter). By reference to a present value table, it is found that 
the present value of O's note discounted to yield 8\1/2\ percent 
compounded quarterly is $56,608 (rounded). The computation is as 
follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                            (1)                                     (2)               (3)              (4)                 (5)                  (6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Present value
                                                                 Principal     Interest payable   Total amount      Factor for present       of total
                 Quarterly interest period                        payable      (1\1/2\ percent)   payable (2) +  value discounted at 2\1/  payment (4) x
                                                                                                       (3)        8\ percent per quarter        (5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1..........................................................            $3,000              $900          $3,900                   0.9792       $3,818.88
2..........................................................             3,000               855           3,855                    .9588        3,696.17
3..........................................................             3,000               810           3,810                    .9389        3,577.21
4..........................................................             3,000               765           3,765                    .9193        3,461.16
5..........................................................             3,000               720           3,720                    .9002        3,348.74
6..........................................................             3,000               675           3,675                    .8815        3,239.51
7..........................................................             3,000               630           3,630                    .8631        3,133.05
8..........................................................             3,000               585           3,585                    .8452        3,030.04
9..........................................................             3,000               540           3,540                    .8276        2,929.70
10.........................................................             3,000               495           3,495                    .8104        2,832.35
11.........................................................             3,000               450           3,450                    .7935        2,737.58
12.........................................................             3,000               405           3,405                    .7770        2,645.69
13.........................................................             3,000               360           3,360                    .7608        2,556.29
14.........................................................             3,000               315           3,315                    .7450        2,469.68
15.........................................................             3,000               270           3,270                    .7295        2,385.47
16.........................................................             3,000               225           3,225                    .7143        2,303.62
17.........................................................             3,000               180           3,180                    .6994        2,224.09
18.........................................................             3,000               135           3,135                    .6849        2,147.16
19.........................................................             3,000                90           3,090                    .6706        2,072.15
20.........................................................             3,000                45           3,045                    .6567        1,999.65
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total...............................................................................................................................       56,608.19
--------------------------------------------------------------------------------------------------------------------------------------------------------


This amount ($56,608) is the assumed price at which the note would have 
been issued had it been issued without stock purchase warrants. The 
assumed price of $45,000 agreed to by the parties is not presumed to be 
correct since it is less than the face value adjusted to a yield which 
is one percentage point greater than the actual rate of interest payable 
on the obligation. The parties did not have adverse interests in 
agreeing upon an assumed price (since an excessively large amount of 
original issue discount would benefit O, the borrower, without adversely 
affecting Z, an exempt organization which would pay no tax on original 
issue discount income), and the price agreed to appears to be clearly 
erroneous when compared to the $56,608 assumed issue price determined 
under the principles of (a) of this subdivision. Since the maturity 
value of O's note is $60,000, the original issue discount on O's note is 
$3,392 ($60,000 minus $56,608). Under the rules in Sec.  1.163-3, O is 
entitled to a deduction, to be prorated or amortized over the life of 
the note, equal to this original issue discount on the note. The excess 
of the price paid for the unit over the portion of such price allocable 
to the note, $3,392 ($60,000 minus $56,608), is allocable to and is the 
basis of the stock purchase warrants acquired by Z in connection with 
O's note. Upon the exercise or sale of the warrants by Z, O will be 
allowed no deduction and will have no income.

    (iii) Issuance for property after May 27, 1969--(a) In general. 
Except as provided in (b) of this subdivision, if an obligation or an 
investment unit is issued for property other than money, the issue price 
of such obligation shall be the stated redemption price at maturity and, 
therefore, no original issue discount is created as a result of the 
exchange. However, in such case, there may be an amount treated as 
interest under section 483. In the case of certain exchanges of 
obligations of the United States for other such obligations, see section 
1037 for the determination of the amount of original issue discount on 
the obligation acquired in the exchange. For carryover of original issue 
discount in the case of certain exchanges of obligations, see 
subparagraph (1)(iv) of this paragraph.
    (b) Exceptions for original issue discount. If an obligation or 
investment unit is issued for property in an exchange which is not 
pursuant to a plan

[[Page 351]]

of reorganization referred to in (d) of this subdivision, and if:
    (1) The obligation, investment unit, or an element of the investment 
unit is part of an issue a portion of which is traded on an established 
securities market, or
    (2) The property for which such obligation or investment unit is 
issued is stock or securities which are traded on an established 
securities market


then the issue price of the obligation or investment unit shall be the 
fair market value of the property for which such obligation or 
investment unit is issued, as determined under (c) of this subdivision. 
Such issue price shall control for purposes of determining the amount 
realized by the person exchanging the property for the obligation or 
unit issued and the bases of the property acquired by the holder and 
issuer.

An obligation which is not traded on an established securities market 
and which is not part of an issue or investment unit a portion of which 
is so traded shall not be treated as property described in (1) of this 
(b) even though the obligation is convertible into property so traded. 
For purposes of this (b), an obligation, investment unit, or element of 
an investment unit shall be treated as traded on an established 
securities market if it is so traded on or within 10 trading days after 
the date it is issued. Trading days shall mean those days on which an 
established securities market is open. For purposes of this subdivision 
(iii), the term established securities market shall have the same 
meaning as in paragraph (d)(4) of Sec.  1.453-3 (relating to limitations 
on installment method for purchaser evidences of indebtedness payable on 
demand or readily tradable).
    (c) Determination of fair market value in cases to which (b) of this 
subdivision applies. In general, for purposes of (b) of this 
subdivision, the fair market value of property for which an obligation 
or investment unit is issued shall be deemed to be the same as the fair 
market value of such obligation or investment unit, determined by 
reference to the fair market value of that portion of the issue, of 
which such obligation or unit is a part, which is traded on an 
established securities market. The fair market value of such obligation 
or unit shall be determined as of the first date after the date of issue 
(within the meaning of section 1232(b)(3)) that such obligation or unit 
is traded on an established securities market. If, however, the 
obligation or investment unit is not part of an issue a portion of which 
is traded on an established securities market, but the property for 
which the obligation or investment unit is issued is stock or securities 
which are traded on an established securities market, the fair market 
value of such property shall be the fair market value of such stock or 
securities on the date such obligation or unit is issued for such 
property. The fair market value of property for purposes of this (c) 
shall be determined as provided in Sec.  20.2031-2 of this chapter 
(Estate Tax Regulations) but without applying the blockage and other 
special rules contained in paragraph (e) thereof.
    (d) Not in reorganization. An exchange which is not pursuant to a 
reorganization referred to in this subdivision (d) is an exchange in 
which the obligation or investment unit is not issued pursuant to a plan 
of reorganization within the meaning of section 368(a)(1) or pursuant to 
an insolvency reorganization within the meaning of section 371, 373, or 
374. Thus, for example, no original issue discount is created on an 
obligation issued in a recapitalization within the meaning of section 
368(a)(1)(E). Similarly, no original issue discount is created on an 
obligation issued in an exchange, pursuant to a plan of reorganization, 
to which section 361 applies regardless of the income tax consequences 
to any person who pursuant to such plan is the ultimate recipient of the 
obligation. The application of section 351 shall not preclude the 
creation of original issue discount. For carryover of original issue 
discount in the case of an exchange of obligations pursuant to a plan of 
reorganization, see subparagraph (1)(iv) of this paragraph.
    (e) Effective date. Determinations with respect to obligations 
issued on or before May 27, 1969, or pursuant to a written commitment 
which was binding on that date and at all times thereafter, shall be 
made without regard to this subdivision (iii).

[[Page 352]]

    (iv) Serial obligations--(a) In general. If an issue of obligations 
which matures serially is issued by a corporation, and if on the basis 
of the facts and circumstances in such case an independent issue price 
for each particular maturity can be established, then the obligations 
with each particular maturity shall be considered a separate series, and 
the obligations of each such series shall be treated as a separate issue 
with a separate issue price, maturity date, and stated redemption price 
at maturity. The ratable monthly portion of original issue discount 
attributable to each obligation within a particular series shall be 
determined and ratably included as interest in gross income under the 
rules of Sec.  1.1232-3A.
    (b) Issue price not independently established. If a separate issue 
price cannot be established with respect to each series of an issue of 
obligations which matures serially, the issue price for each obligation 
of each series shall be its stated redemption price at maturity minus 
the amount of original issue discount allocated thereto in accordance 
with (d) of this subdivision. The amount of original issue discount so 
allocated shall be ratably included as interest in gross income under 
rules of Sec.  1.1232-3A.
    (c) Single obligation rule. If a single corporate obligation 
provides for payments (other than payments which would not be included 
in the stated redemption price at maturity under subparagraph (1)(iii) 
of this paragraph) in two or more installments, the provisions of (b) of 
this subdivision shall be applied by treating such obligation as an 
issue of obligations consisting of more than one series each of which 
matures on the due date of each such installment payment.
    (d) Allocation of discount. For purposes of (b) and (c) of this 
subdivision, the original issue discount with respect to each series of 
an issue shall be the total original issue discount for the issue 
multiplied by a fraction:
    (1) The numerator of which is the product of (i) the stated 
redemption price of such series and (ii) the number of complete years 
(and any fraction thereof) constituting the period for such series from 
the date of original issue (as defined in paragraph (b)(3) of this 
section) to its stated maturity date, and
    (2) The denominator of which is the sum of the products determined 
in (1) of this subdivision (d) with respect to each such series.

If a series consists of more than one obligation, the original issue 
discount allocated to such series shall be apportioned to such 
obligations in proportion to the stated redemption price of each. 
Computations under this subdivision (d) may be made using periods other 
than years, such as, for example, months or periods of 3 months.
    (e) Effective date. The provisions of this subdivision (iv) shall 
apply with respect to corporate obligations issued after July 22, 1971. 
However, no inference shall be drawn from the preceding sentence with 
respect to serial obligations issued prior to such date.
    (f) Examples. The provisions of this subdivision (iv) may be 
illustrated by the following examples:

    Example 1. On January 1, 1972, P Corporation issued a note with a 
total face value of $100,000 to B for cash of $94,000. The terms of the 
note provide that $50,000 is payable on December 31, 1973, and the other 
$50,000 on December 31, 1975. Each payment is treated as the stated 
redemption price of a series, and the total original issue discount with 
respect to the note, $6,000, is allocated to each such series as 
follows:

------------------------------------------------------------------------
            Year of maturity                1973       1975      Total
------------------------------------------------------------------------
(1) Stated redemption price............    $50,000    $50,000
(2) Multiply by years outstanding......          2          4
                                        --------------------------------
(3) Product of bond years..............   $100,000   $200,000
(4) Sum of products....................  .........  .........   $300,000
(5) Fractional portion of discount.....   $100,000   $200,000
                                        --------------------------------
                                          $300,000   $300,000
(6) Multiply line (5) by discount for       $6,000     $6,000
 entire issue..........................
                                        ----------------------
(7) Discount for each series...........     $2,000     $4,000
                                        ======================
(8) Issue price (line (1), minus line      $48,000    $46,000
 (7))..................................
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1) except that a 
separate note is issued for each payment. The result is the same as in 
example (1).
    Example 3. On January 1, 1971, Y Bank, a corporation, issues a note 
to C for $1,000

[[Page 353]]

cash. The terms of the note provide that $50 will be paid at the end of 
the first year, $120 at the end of the second year, and $1,050 at the 
end of the third year. Under (c) of this subdivision (iv), the $1,000 
note is treated as consisting of two series, the first of which matures 
at the end of the second year, and the second of which matures at the 
end of the third year. The issue price and the allocation of original 
issue discount with respect to each series is computed as follows:

------------------------------------------------------------------------
            Year of maturity                1972       1973      Total
------------------------------------------------------------------------
(1) Stated redemption price............        $70     $1,000
(2) Multiply by years outstanding......          2          3
                                        ----------------------
(3) Product of bond years..............       $140     $3,000
(4) Sum of products....................  .........  .........     $3,140
(5) Fractional portion of discount.....       $140     $3,000
                                        ----------------------
                                            $3,140     $3,140
(6) Multiply line (5) by discount for          $70        $70
 entire issue..........................
                                        ----------------------
(7) Discount for each series...........      $3.12     $66.88
                                        ======================
(8) Issue price (line 1 minus line (7))     $66.88    $933.12
------------------------------------------------------------------------

    (3) Date of original issue. In the case of issues of obligations 
which are registered with the Securities and Exchange Commission, the 
term date of original issue means the date on which the issue was first 
sold to the public at the issue price. In the case of issues which are 
privately placed, the term date of original issue means the date on 
which each obligation was sold to the original purchaser.
    (4) Intention to call before maturity--(i) Meaning of term. For 
purposes of section 1232, the term intention to call the bond or other 
evidence of indebtedness before maturity means an understanding between 
(a) the issuing corporation (such corporation is hereinafter referred to 
as the issuer), and (b) the original purchaser of such obligation (or, 
in the case of obligations constituting part of an issue, any of the 
original purchasers of such obligations) that the issuer will redeem the 
obligation before maturity. For purposes of this subparagraph, the term 
original purchaser does not include persons or organizations acting in 
the capacity of underwriters or dealers, who purchased the obligation 
for resale in the ordinary course of their trade or business. It is not 
necessary that the issuer's intention to call the obligation before 
maturity be communicated directly to the original purchaser by the 
issuer. The understanding to call before maturity need not be 
unconditional; it may, for example, be dependent upon the financial 
condition of the issuer on the proposed early call date.
    (ii) Proof of intent--(a) In general. Ordinarily, the existence or 
non-existance of an understanding at the time of original issue that the 
obligation will be redeemed before maturity shall be determined by an 
examination of all of the circumstances under which the obligation was 
issued and held. The fact that the obligation is issued with provisions 
on its face giving the issuer the privilege of redeeming the obligation 
before maturity is not determinative of an intention to call before 
maturity; likewise, the absence of such provision is not determinative 
of the absence of an intention to call before maturity. However, such 
provision, or the absence of such provision, is one of the circumstances 
to be given consideration along with other factors in determining 
whether an understanding existed. If the obligation was part of an issue 
registered with the Securities and Exchange Commission and was sold to 
the public (whether or not sold directly to the public by the obligor) 
without representation to the public that the obligor intends to call 
the obligation before maturity, there shall be a presumption that no 
intention to call the obligation before maturity was in existence at the 
time of original issue. The existence of a provision on the face of an 
obligation giving the issuer the privilege of redeeming the obligation 
before maturity shall not in and of itself overcome the presumption set 
forth in the preceding sentence.
    (b) Circumstances indicating absence of understanding. Examples of 
circumstances which would be evidence that there was no understanding at 
the time of original issue to redeem the obligation before maturity are:
    (1) The issue price and term of the obligation appear to be 
reasonable, taking into account the interest rate,

[[Page 354]]

if any, on the obligation, for a corporation in the financial condition 
of the issuer at the time of issue.
    (2) The original purchaser and the issuer are not related within the 
meaning of section 267(b) and have not engaged in transactions with each 
other (other than concerning the obligation).
    (3) The original purchaser is not related within the meaning of 
section 267(b) to any of the officers or directors of the issuer, and he 
has not engaged in transactions with such officers or directors (other 
than concerning the obligation).
    (4) The officers and directors of the issuer at the time of issue of 
the obligation are different from those in control at the time the 
obligation is called or the taxpayer disposes of it.
    (c) Gain treated as ordinary income in certain cases; computation. 
The amount of gain treated as ordinary income under paragraph (a) 
(3)(ii) or (5) of this section is computed by multiplying the original 
issue discount by a fraction, the numerator of which is the number of 
full months the obligation was held by the holder and the denominator of 
which is the number of full months from the date of original issue to 
the date specified as the redemption date at maturity. (See paragraph 
(b)(3) of this section for definition of date of original issue.) The 
period that the obligation was held by the taxpayer shall include any 
period that it was held by another person if, under chapter 1 of the 
Code, for the purpose of determining gain or loss from a sale or 
exchange, the obligation has the same basis, in whole or in part, in the 
hands of the taxpayer as it would have in the hands of such other 
person. This computation is illustrated by the following examples:

    Example 1. An individual purchases a 10-year, 3-percent coupon bond 
for $900 on original issue on February 1, 1955, and sells it on February 
20, 1960, for $940. The redemption price is $1,000. At the time of 
original issue, there was no intention to call the bond before maturity. 
The bond has been held by the taxpayer for 60 full months. (The 
additional days amounting to less than a full month are not taken into 
account.) The number of complete months from date of issue to date of 
maturity is 120 (10 years). The fraction \60/120\ multiplied by the 
discount of $100 is equal to $50, which represents the proportionate 
part of the original issue discount attributable to the period of 
ownership by the taxpayer. Accordingly, any part of the gain up to $50 
will be treated as ordinary income. Therefore, in this case the entire 
gain of $40 is treated as ordinary income.
    Example 2. Assume the same facts in the preceding example, except 
that the selling price of the bond is $970. In this case $50 of the gain 
of $70 is treated as ordinary income and the balance of $20 is treated 
as long-term capital gain.
    Example 3. Assume the same facts as in example (1), except that the 
selling price of the bond is $800. In this case, the individual has a 
long-term capital loss of $100.
    Example 4. Assume the same facts as in example (1), except that the 
bond is purchased by the second holder February 1, 1960, for $800. The 
second holder keeps it to the maturity date (February 1, 1965) when it 
is redeemed for $1,000. Since that holder has held the bond for 60 full 
months, he will, upon redemption, have $50 in ordinary income and $150 
in long-term capital gain.

    (d) Exceptions to the general rule--(1) In general. Section 
1232(a)(2)(C) provides that section 1232(a)(2) does not apply (i) to 
obligations the interest on which is excluded from gross income under 
section 103 (relating to certain government obligations), or (ii) to any 
holder who purchases an obligation at a premium.
    (2) Premium. For purposes of section 1232, this section, and Sec.  
1.1232-3A, premium means a purchase price which exceeds the stated 
redemption price of an obligation at its maturity. For purposes of the 
preceding sentence, if an obligation is acquired as part of an 
investment unit consisting of an option, security, or other property and 
an obligation, the purchase price of the obligation is that portion of 
the price paid or payable for the unit which is allocable to the 
obligation. The price paid for the unit shall be allocated to the 
individual elements of the unit on the basis of their respective fair 
market values. However, if the fair market value of the option, 
security, or other property is not readily ascertainable (within the 
meaning of paragraph (c) of Sec.  1.421-6), then the price paid for the 
unit shall be allocated in accordance with the rules under paragraph 
(b)(2)(ii) of this section for allocating the initial offering price of 
an investment unit to its elements. If, under chapter 1 of the Code, the 
basis of an obligation in the hands of the holder is

[[Page 355]]

the same, in whole or in part, for the purposes of determining gain or 
loss from a sale or exchange, as the basis of the obligation in the 
hands of another person who purchased the obligation at a premium, then 
the holder shall be considered to have purchased the obligation at a 
premium. Thus, the donee of an obligation purchased at a premium by the 
doner will be considered a holder who purchased the obligation at a 
premium.
    (e) Amounts previously includible in income. Nothing in section 
1232(a)(2) shall require the inclusion of any amount previously 
includible in gross income. Thus, if an amount was previously includible 
in a taxpayer's income on account of obligations issued at a discount 
and redeemable for fixed amounts increasing at stated intervals, or, 
under section 818(b) (relating to accrual of discount on bonds and other 
evidences of indebtedness held by life insurance companies), such amount 
is not again includible in the taxpayer's gross income under section 
1232(a)(2). For example, amounts includible in gross income by a cash 
receipts and disbursements method taxpayer who has made an election 
under section 454 (a) or (c) (relating to accounting rules for certain 
obligations issued at a discount to which section 1232(a)(3) does not 
apply) are not includible in gross income under section 1232(a)(2). In 
the case of a gain which would include, under section 1232(a)(2), an 
amount considered to be ordinary income and a further amount considered 
long-term capital gain, any amount to which this paragraph applies is 
first used to offset the amount considered ordinary income. For example, 
on January 1, 1955, A purchases a 10-year bond which is redeemable for 
fixed amounts increasing at stated intervals. At the time of original 
issue, there was no intention to call the bond before maturity. The 
purchase price of the bond is $75, which is also the issue price. The 
stated redemption price at maturity of the bond is $100. A elects to 
treat the annual increase in the redemption price of the bond as income 
pursuant to section 454(a). On January 1, 1960, A sells the bond for 
$90. The total stated increase in the redemption price of the bond which 
A has reported annually as income for the taxable years 1955 through 
1959 is $7. The portion of the original issue discount of $25 
attributable to this period is $12.50, computed as follows:

60 (months bond is held by A)/120 (months from date of original issue to 
          redemption date) x $25 (original issue discount)


However, $7, which represents the annual stated increase taken into 
income, is offset against the amount of $12.50, leaving $5.50 of the 
gain from the sale to be treated as ordinary income.
    (f) Recordkeeping requirements. In the case of any obligation held 
by a taxpayer which was issued at an original issue discount after 
December 31, 1954, the taxpayer shall keep a record of the issue price 
and issue date upon or with each obligation (if known to or reasonably 
ascertainable by him). If the obligation held by the taxpayer is an 
obligation of the United States received from the United States in an 
exchange upon which gain or loss is not recognized because of section 
1037 (a) (or so much of section 1031 (b) or (c) as relates to section 
1037(a)), the taxpayer shall keep sufficient records to determine the 
issue price of such obligation for purposes of applying section 1037(b) 
and paragraphs (a) and (b) of Sec.  1.1037-1 upon the disposition or 
redemption of such obligation. The issuer (or in the case of obligations 
first sold to the public through an underwriter or wholesaler, the 
underwriter or wholesaler) shall mark the issue price and issue date 
upon every obligation which is issued at an original issue discount 
after September 26, 1957, but only if the period between the date of 
original issue (as defined in paragraph (b)(3) of this section) and the 
stated maturity date is more than 6 months.

[T.D. 6500, 25 FR 12008, Nov. 26, 1960, as amended by T.D. 6984, 33 FR 
19176, Dec. 21, 1968; T.D. 7154, 36 FR 25000, Dec. 28, 1971; 37 FR 527, 
Jan. 13, 1972; T.D. 7213, 37 FR 21992, Oct. 18, 1972; 37 FR 22863, Oct. 
26, 1972; T.D. 7663, 44 FR 76782, Dec. 28, 1979; T.D. 7728, 45 FR 72650, 
Nov. 3, 1980]



Sec.  1.1232-3A  Inclusion as interest of original issue discount 
on certain obligations issued after May 27, 1969.

    (a) Ratable inclusion as interest--(1) General rule. Under section 
1232(a)(3),

[[Page 356]]

the holder of any obligation issued by a corporation after May 27, 1969 
(other than an obligation issued by or on behalf of the United States or 
a foreign country, or a political subdivision of either) shall include 
as interest in his gross income an amount equal to the ratable monthly 
portion of original issue discount multiplied by the sum of the number 
of complete months and any fractional part of a month such holder held 
the obligation during the taxable year. For increase in basis for 
amounts included as interest in gross income pursuant to this paragraph, 
see paragraph (c) of this section. For requirements for reporting 
original issue discount, see section 6049(a) and the regulations 
thereunder.
    (2) Ratable monthly portion of original issue discount--(i) General 
rule. Except when subdivision (ii) of this subparagraph applies, the 
term ratable monthly portion of original issue discount means an amount 
equal to the original issue discount divided by the sum of the number of 
complete months (plus any fractional part of a month) beginning on the 
date of original issue and ending the day before the stated maturity 
date of such obligation.
    (ii) Reduction for purchase allowance. With respect to an obligation 
which has been acquired by purchase (within the meaning of subparagraph 
(4) of this paragraph), the term ratable monthly portion of original 
issue discount means the lesser of the amount determined under 
subdivision (i) of this subparagraph or an amount equal to:
    (a) The excess (if any) of the stated redemption price of the 
obligation at maturity over its cost to the purchaser divided by
    (b) The sum of the number of complete months (plus any fractional 
part of a month) beginning on the date of such purchase and ending the 
day before the stated maturity date of such obligation.

The amount of the ratable monthly portion within the meaning of this 
subdivision reflects a purchase allowance provided under section 
1232(a)(3)(B) where a purchase is made at a price in excess of the sum 
of the issue price plus the portion of original issue discount 
previously includible (regardless of whether included) in the gross 
income of all previous holders (computed, however, as to such previous 
holders without regard to any purchase allowance under this subdivision 
and without regard to whether any previous holder purchased at a 
premium).
    (iii) Ratable monthly portion upon carryover to new obligation. In 
any case in which there is a carryover of original issue discount under 
paragraph (b)(1)(iv) of Sec.  1.1232-3 from an obligation exchanged to 
an obligation received in such exchange, the ratable monthly portion of 
original issue discount in respect of the obligation received shall be 
computed by dividing the amount of original issue discount carried over 
by the sum of the number of complete months (plus any fractional part of 
a month) beginning on the date of the exchange and ending the day before 
the stated maturity date of the obligation received.
    (iv) Cross references. For definitions of the terms original issue 
discount and date of original issue, see subparagraphs (1) and (3) 
respectively, of Sec.  1.1232-3(b). For definition of the term premium, 
see paragraph (d)(2) of Sec.  1.1232-3.
    (3) Determination of number of complete months--(i) In general. For 
purposes of this section:
    (a) A complete month and a fractional part of a month commence with 
the date of original issue and the corresponding day of each succeeding 
calendar month (or the last day of a calendar month in which there is no 
corresponding day),
    (b) If an obligation is acquired on any day other than the date a 
complete month commences, the ratable monthly portion of original issue 
discount for the complete month in which the acquisition occurs shall be 
allocated between the transferor and the transferee in accordance with 
the number of days in such complete month each held the obligation,
    (c) In determining the allocation under (b) of this subdivision, any 
holder may treat each month as having 30 days,
    (d) The transferee, and not the transferor, shall be deemed to hold 
the obligation during the entire day on the date of acquisition, and
    (e) The obligor will be treated as the transferee on the date of 
redemption.

[[Page 357]]

    (ii) Example. The provisions of this subparagraph may be illustrated 
by the following example:

    Example: On February 22, 1970, A acquires an obligation of X 
Corporation for which February 1, 1970, is the date of original issue. B 
acquires the obligation on June 16, 1970. A does not choose to treat 
each month as having 30 days. Thus, A held the obligation for 3\3/4\ 
months during 1970, i.e., one-fourth of February (\7/28\ days), March, 
April, May, one-half of June (\15/30\ days). The ratable monthly portion 
of original issue discount for the obligation is multiplied by 3\3/4\ 
months to determine the amount included in A's gross income for 1970 
pursuant to this paragraph.

    (4) Purchase. For purposes of this section, the term purchase means 
any acquisition (including an acquisition upon original issue) of an 
obligation to which this section applies, but only if the basis of such 
obligation is not determined in whole or in part by reference to the 
adjusted basis of such obligation in the hands of the person from whom 
it was acquired or under section 1014(a) (relating to property acquired 
from a decedent).
    (b) Exceptions--(1) Binding commitment. Section 1232(a)(3) shall not 
apply to any obligation issued pursuant to a written commitment which 
was binding on May 27, 1969, and at all times thereafter.
    (2) Exception for 1-year obligations. Section 1232(a)(3) shall not 
apply to any obligation in respect of which the period between the date 
of original issue (as defined in paragraph (b)(3) of Sec.  1.1232-3) and 
the stated maturity date is 1 year or less. In such case, gain on the 
sale or exchange of such obligation shall be included in gross income as 
interest to the extent the gain does not exceed an amount equal to the 
ratable monthly portion of original issue discount multiplied by the sum 
of the number of complete months and any fractional part of a month such 
taxpayer held such obligation.
    (3) Purchase at a premium. Section 1232(a)(3) shall not apply to any 
holder who purchased the obligation at a premium (within the meaning of 
paragraph (d)(2) of Sec.  1.1232-3).
    (4) Life insurance companies. Section 1232(a)(3) shall not apply to 
any holder which is a life insurance company to which section 818(b) 
applies. However, ratable inclusion of original issue discount as 
interest under section 1232(a)(3) is required by an insurance company 
which is subject to the tax imposed by section 821 or 831.
    (c) Basis adjustment. The basis of an obligation in the hands of the 
holder thereof shall be increased by any amount of original issue 
discount with respect thereto included as interest in his gross income 
pursuant to paragraph (a) of this section. See section 1232(a)(3)(E). 
However, the basis of an obligation shall not be increased by any amount 
that was includible as interest in gross income under paragraph (a) of 
this section, but was not actually included by the holder in his gross 
income.
    (d) Examples. The provisions of paragraphs (a) through (c) of this 
section may be illustrated by the following examples:

    Example 1. On January 1, 1970, A, a calendar-year taxpayer, 
purchases at original issue, for cash of $7,600, M Corporation's 10-
year, 5-percent bond which has a stated redemption price of $10,000. The 
ratable monthly portion of original issue discount, as determined under 
section 1232(a)(3) and this section, to be included as interest in A's 
gross income for each month he holds such bond is $20, computed as 
follows:

Original issue discount (stated redemption price,      $2,400
 $10,000, minus issue price, $7,600)..............
Divide by: Number of months from date of original         120     months
 issue to stated maturity date....................
                                                   -----------
Ratable monthly portion...........................        $20
 


Assume that A holds the bond for all of 1970 and 1971 and includes as 
interest in his gross income for each such year an amount equal to the 
ratable monthly portion, $20, multiplied by the number of months he held 
the bond each such year, 12 months, or $240. Accordingly, on January 1, 
1972, A's basis in the bond will have increased under paragraph (c) of 
this section by the amount so included, $480 (i.e., $240 x 2), from his 
cost, $7,600, to $8,080. For results if A sells the bond on that date, 
see examples (1) and (2) of paragraph (a)(2) of Sec.  1.1282-3.
    Example 2. Assume the same facts as in example (1). Assume further 
that on January 1, 1972, A sells the bond to B, a calendar-year taxpayer 
for $9,040.


Since B purchased the bond, he determines under paragraph (a)(2)(ii) of 
this section the amount of the ratable monthly portion he must include 
as interest in his gross income in order to reflect the amount of his 
purchase allowance (if any). B determines that

[[Page 358]]

his ratable monthly portion is $10, computed as follows:

(1) Stated redemption price at maturity...........    $10,000
(2) Minus: B's cost...............................     $9,040
                                                   -----------
(3) Excess........................................       $960
(4) Divide by: Number of months from date of               96     months
 purchase to stated maturity date.................
(5) Tentative ratable monthly portion.............        $10
                                                   -----------
(6) Ratable monthly portion as computed in example        $20
 (1)..............................................
 

Since line (5) is lower than line (6), B's ratable monthly portion is 
$10. Accordingly, if B holds the bond for all of 1972, he must include 
$120 (i.e., ratable monthly portion, $10 x 12 months) as interest in his 
gross income.
    Example 3. (1) Assume the same facts as in example (1). Assume 
further that on January 1, 1975, A sells the bond to B for $10,150. 
Under the exception of paragraph (b)(3) of this section, B is not 
required to include any amount in respect of original issue discount as 
interest in his gross income since he has purchased the bond at a 
premium.
    (2) On January 1, 1979, B sells the bond to C, a calendar-year 
taxpayer, for $9,940. Since C is now the holder of the bond (and no 
exception applies to him), he must include as interest in his gross 
income the ratable monthly portion of original issue determined under 
section 1232(a)(3) and this section. Since C purchased the bond he 
determines under paragraph (a)(2)(ii) of this section the amount of the 
ratable monthly portion he must include as interest in his gross income 
in order to reflect the amount of his purchase allowance (if any). C 
determines that his ratable monthly portion is $5, computed as follows:

(1) Stated redemption price at maturity...........    $10,000
(2) Minus: C's cost...............................     $9,940
                                                   -----------
(3) Excess........................................        $60
(4) Divide by: Number of months from date of               12     months
 purchase to stated maturity date.................
                                                   -----------
(5) Tentative ratable monthly portion.............         $5
(6) Ratable monthly portion as computed in example        $20
 (1)..............................................
 


Since line (5) is lower than line (6), C's ratable monthly portion is 
$5. Accordingly, if C holds the bond for all of 1979, he must include 
$60 (i.e., ratable monthly portion, $5, x 12 months) as interest in his 
gross income. Upon maturity of the bond on January 1, 1980, C will 
receive $10,000 from M, which under paragraph (c) of this section will 
equal his adjusted basis (the sum of his cost, $9,940, plus original 
issue discount included as interest in his gross income, $60).
    Example 4. On January 1, 1968, D, a calendar-year taxpayer, 
purchases at original issue, for cash of $8,000, P Corporation's 20-
year, 6 percent bond which has a stated redemption price of $10,000 and 
which will mature on January 1, 1988. The original issue discount with 
respect to such bond is $2,000. However, the ratable inclusion rules of 
section 1232(a)(3) do not apply to D, since the bond was issued by P 
before May 28, 1969. On January 1, 1973, pursuant to a plan of 
reorganization as defined in section 368(a)(1)(E), and in which no gain 
or loss is recognized by D under section 354, D's 20-year bond is 
exchanged for a 10-year, 6 percent bond which also has a stated 
redemption price of $10,000 but will mature on January 1, 1983. Under 
paragraph (b)(1)(iv) of Sec.  1.1232-3, the $2,000 of original issue 
discount is carried over to the new 10-year bond received in such 
exchange. Since the new bond is an obligation issued after May 27, 1969, 
D is required to begin ratable inclusion of the $2,000 of discount as 
interest in his gross income for 1973. The ratable monthly portion of 
original issue discount, as determined under section 1232(a)(3) to be 
included as interest in gross income is computed as follows:

Amount of original issue discount carried over....     $2,000
Divide by: Number of complete months beginning on         120     months
 January 1, 1973, and ending on December 31, 1982.
                                                   -----------
Ratable monthly portion...........................     $16.67
 

    (e) Application of section 1232 to certain deposits in financial 
institutions and similar arrangements--(1) In general. Under paragraph 
(d) of Sec.  1.1232-1, the term other evidence of indebtedness includes 
certificates of deposit, time deposits, bonus plans, and other deposit 
arrangements with banks, domestic building and loan associations, and 
similar financial institutions.
    (2) Adjustments where obligation redeemed before maturity--(i) In 
general. If an obligation described in subparagraph (1) of this 
paragraph is redeemed for a price less than the stated redemption price 
at maturity from a taxpayer who acquired the obligation upon original 
issue, such taxpayer shall be allowed as a deduction, in computing 
adjusted gross income, the amount of the original issue discount he 
included in gross income but did not receive (as determined under 
subdivision (ii) of this subparagraph). The taxpayer's basis of such 
obligation (determined after any increase in basis for the taxable year 
under section 1232(a)(3)(E) by the amount of original issue discount 
included in the holder's gross income

[[Page 359]]

under section 1232(a)(3)) shall be decreased by the amount of such 
adjustment.
    (ii) Computation. The amount of the adjustment under subdivision (i) 
of this subparagraph shall be an amount equal to the excess (if any) of 
(a) the ratable monthly portion of the original issue discount included 
in the holder's gross income under section 1232(a)(3) for the period he 
held the obligation, over (b) the excess (if any) of the amount received 
upon the redemption over the issue price. Under paragraph (b)(1)(iii)(a) 
of Sec.  1.1232-3, if any amount based on a fixed rate of simple or 
compound interest is actually payable or will be treated as 
constructively received under section 451 and the regulations thereunder 
at fixed periodic intervals of 1 year or less during the term of the 
obligation, any such amount payable upon redemption shall not be 
included in determining the amount received upon such redemption.
    (iii) Partial redemption. (a) In the case of an obligation (other 
than a single obligation having serial maturity dates), if a portion of 
the obligation is redeemed prior to the stated maturity date of the 
entire obligation, the provisions of this subdivision shall be applied 
and not the provisions of subdivision (ii) of this subparagraph. In such 
case, the adjusted basis of the unredeemed portion of the obligation on 
the date of the partial redemption shall be an amount equal to the 
adjusted basis of the entire obligation on that date minus the amount 
paid upon the redemption.
    (b) If the adjusted basis of the unredeemed portion (as computed 
under (a) of this subdivision) is equal to or in excess of the amount to 
be received for the unredeemed portion at maturity, no gain or loss 
shall be recognized at the time of the partial redemption but the holder 
shall be allowed a deduction, in computing adjusted gross income for the 
taxable year during which such partial redemption occurs, equal to the 
amount of such excess (if any), and no further original issue discount 
will be includible in the holder's gross income under section 1232(a)(3) 
over the remaining term of the unredeemed portion. In such case, the 
holder shall decrease his basis in the unredeemed portion (as computed 
under (a) of this subdivision) by the amount of such adjustment.
    (c) If the adjusted basis of the unredeemed portion (as computed 
under (a) of this subdivision) is less than the redemption price of the 
unredeemed portion at maturity, a new computation shall be made under 
paragraph (a) of this section (without regard to the exception for one-
year obligations in paragraph (b)(2) of this section) of the ratable 
monthly portion of original issue discount to be included as interest in 
the gross income of the holder over the remaining term of the unredeemed 
portion. For purposes of such computation, the adjusted basis of the 
unredeemed portion shall be treated as the issue price, the date of the 
partial redemption shall be treated as the issue date, and the amount to 
be paid for the unredeemed portion at maturity shall be treated as the 
stated redemption price.
    (3) Examples. The application of section 1232 to obligations to 
which this paragraph applies may be illustrated by the following 
examples:

    Example 1. A is a cash method taxpayer who uses the calendar year as 
his taxable year. On January 1, 1971, he purchases a certificate of 
deposit from X Bank, a corporation, for $10,000. The certificate of 
deposit is not redeemable until December 31, 1975, except in an 
emergency as defined in, and subject to the qualifications provided by, 
Regulation Q of the Board of Governors of the Federal Reserve. See 12 
CFR 217.4(d). The stated redemption price at maturity is $13,382.26. The 
terms of the certificate do not expressly refer to any amount as 
interest. A's certificate of deposit is an obligation to which section 
1232 and this paragraph apply. A shall include the ratable portion of 
original issue discount in gross income for 1971 as determined under 
section 1232(a)(3). Thus, if A holds the certificate of deposit for the 
full calendar year 1971, the amount to be included in A's gross income 
for 1971 is $676.45, that is, \12/60\ months, multiplied by the excess 
of the stated redemption price ($13,382.26) over the issue price 
($10,000).
    Example 2. Assume the same facts as in example (1), except that the 
certificate of deposit provides for payment upon redemption at December 
31, 1975, of an amount equal to ``$10,000, plus 6 percent compound 
interest from January 1, 1971, to December 31, 1975.''

[[Page 360]]

Thus, the total amount payable upon redemption in both example (1) and 
this example is $13,382.26. The certificate of deposit is an obligation 
to which section 1232 and this paragraph apply and, since the substance 
of the deposit arrangement is identical to that contained in example 
(1), A must include the same amount in gross income.
    Example 3. Assume the same facts as in example (1), except that the 
certificate provides for the payment of interest in the amount of $200 
on December 31, of each year and $2,000 plus $10,000 (the original 
amount) payable upon redemption at December 31, 1975. Thus, if A holds 
the certificate of deposit for the full calendar year 1971, A must 
include in his gross income for 1971 the $200 interest payable on 
December 31, 1971, and $400 of original issue discount, that is, \12/60\ 
months multiplied by the excess of the stated redemption price ($12,000) 
over the issue price ($10,000).
    Example 4. B is a cash method taxpayer who uses the calendar year as 
his taxable year. On January 1, 1971, B purchases a 4-year savings 
certificate from the Y Building and Loan Corporation for $4,000, 
redeemable on December 31, 1974, for $5,000. On December 31, 1973, Y 
redeems the certificate for $4,660. Under section 1232(a)(3), B included 
$250 of original issue discount in his gross income for 1971, $250 for 
1972, and includes $250 in his gross income for 1973 for a total of 
$750. Since the excess of (i) the amount received upon the redemption, 
$4,660, over (ii) the issue price, $4,000, or $660, is lower than the 
total amount of original issue discount ($750) included in B's gross 
income for the period he held the certificate by $90, the $90 will be 
treated under subparagraph (2) of this paragraph as a deduction in 
computing adjusted gross income, and accordingly, will decrease the 
basis of his certificate by such amount. B has no gain or loss upon the 
redemption, as determined in accordance with the following computation:

Adjusted basis January 1, 1973..............................      $4,500
Increase under section 1232(a)(3)(E)........................         250
                                                             -----------
    Subtotal................................................       4,750
Decrease under subparagraph (b)(2) of this paragraph........          90
                                                             -----------
Basis upon redemption.......................................       4,660
Amount realized upon redemption.............................       4,660
                                                             -----------
    Gain or loss............................................           0
 

    Example 5. On January 1, 1971, C, a cash method taxpayer who uses 
the calendar year as his taxable year, opens a savings account in Z bank 
with a $10,000 deposit. Under the terms of the account, interest is made 
available semiannually at 6 percent annual interest, compounded 
semiannually. Since all of the interest on C's account in Z Bank is made 
available semiannually, the stated redemption price at maturity under 
paragraph (b)(1)(iii)(a) of Sec.  1.1232-3 equals the issue price, and, 
therefore, no original issue discount is reportable by C under section 
1232(a)(3). However, C must include the sum of $300 (i.e., \1/2\ x 6% x 
$10,000) plus $309 (i.e., \1/2\ x 6% x $10,300) or $609, of interest 
made available during 1971 in his gross income for 1971.
    Example 6. (i) D is a cash method taxpayer who uses the calendar 
year as his taxable year. On January 1, 1971, D purchases a $10,000 
deferred income certificate from M Bank. Under the terms of the 
certificate, interest accrues at 6 percent per annum, compounded 
quarterly. The period of the account is 10 years. In addition, the 
holder is permitted to withdraw the entire amount of the purchase price 
at any time (but not interest prior to the expiration of the 10 year 
term), and upon such a withdrawal of the purchase price, no further 
interest accrues. If the certificate is held to maturity, the issue 
price plus accrued interest will aggregate $18,140.18.
    (ii) In respect of the certificate, the original issue discount is 
$8,140.18, determined by subtracting the issue price of the certificate 
($10,000) from the stated redemption price at maturity ($18,140.18). 
Thus, under section 1232(a)(3) the ratable monthly portion of original 
issue discount is $67.835 (i.e., \1/20\ months, multiplied by 
$8,140.18). Under section 1232(a)(3), D includes $814.02 (i.e., 12 
months, multiplied by $67.835) in his gross income for each calendar 
year the certificate remains outstanding and under section 1232(a)(3)(E) 
increases his basis by that amount. Thus, on December 31, 1975, D's 
basis for the certificate is $14,070.10 (i.e., issue price, $10,000, 
increased by product of $814.02 x 5 years).
    (iii) On December 31, 1975, D withdraws the $10,000. Under the terms 
of the certificate $3,468.55 cannot be withdrawn until December 31, 
1980. Under the provisions of subparagraph (2)(iii) of this paragraph, 
the $10,000 partial redemption shall be treated as follows:

(1) Adjusted basis of obligation at time of partial           $14,070.10
 redemption.................................................
(2) Amount paid upon redemption.............................   10,000.00
                                                             -----------
(3) Adjusted basis of unredeemed portion (line (1) less line    4,070.10
 (2)).......................................................
(4) Amount to be paid for unredeemed portion at maturity        3,468.55
 (December 31, 1980)........................................
                                                             -----------
(5) Adjustment in computing adjusted gross income (excess of      601.55
 line (3) over line (4))....................................
 


Since the adjusted basis of the unredeemed portion exceeds the amount to 
be received for the unredeemed portion at maturity, D is allowed a 
deduction, in computing adjusted gross income, of $601.25 in 1975 and no 
further original issue discount is includible as interest in his gross 
income. In addition, D will decrease his basis in the unredeemed portion

[[Page 361]]

by $601.55, the amount of such adjustment, from $4,070.10 to $3,468.55.
    Example 7. E is a cash method taxpayer who uses the calendar year as 
his taxable year. On January 1, 1971, E purchases a $10,000 ``Bonus 
Savings Certificate'' from N Building and Loan Corporation. Under the 
terms of the certificate, interest is payable at 5 percent per annum, 
compounded quarterly, and the period of the account is 3 years. In 
addition, the certificate provides that if the holder makes no 
withdrawals of principal or interest during the term of the certificate, 
a bonus payment equal to 5 percent of the purchase price of the 
certificate will be paid to the holder of the certificate at maturity. 
Thus, the amount of the bonus payment is $500 (i.e., 5 percent 
multiplied by $10,000). Since the 5 percent annual interest is payable 
quarterly, the amount of such interest is not included in determining 
the stated redemption price at maturity under paragraph (b)(1)(iii) of 
Sec.  1.1232-3. However, since the bonus payment is only payable at 
maturity, the amount of such bonus is included as part of the stated 
redemption price at maturity. Thus, the stated redemption price at 
maturity equals $10,500 (purchase price, $10,000, plus bonus payment 
$500). Accordingly, the original issue discount attributable to such 
certificate equals $500 (stated redemption price at maturity. $10,500, 
minus issue price, $10,000). Therefore, E must include as interest 
$166.67 (i.e., \12/36\ months, multiplied by the original issue 
discount, $500) in his gross income for each taxable year he holds the 
certificate.

    (4) Renewable certificates of deposit--(i) In general. The renewal 
of a certificate of deposit shall be treated as a purchase of the 
certificate on the date the renewal period begins regardless of any 
requirement pursuant to the terms of the certificate that the holder 
give notice of an intention to renew or not to renew. Thus, for example, 
in the case of a certificate of deposit for which a renewal period 
begins after December 31, 1970, such renewal shall be treated as a 
purchase after such date whether or not the initial period began before 
such date.
    (ii) Computation. For purposes of computing the amount of original 
issue discount to be ratably included as interest in gross income under 
section 1232(a)(3) in respect of a renewable certificate of deposit for 
the initial period or any renewal period, the following rules apply:
    (a) The issue price on the date any renewal period begins is 
considered to be in the case of a certificate of deposit initially 
purchased:
    (1) After December 31, 1970, the adjusted basis of the certificate 
on the date such period begins,
    (2) Before January 1, 1971, the amount the adjusted basis would have 
been on the date such period begins had the holder included all amounts 
of original issue discount as interest in gross income that would have 
been includible if section 1232(a)(3) had applied to the certificate 
from the date of original purchase.

Thus, if under the terms of the certificate, no amount is forfeited upon 
a failure to renew, then the issue price on the date any renewal period 
begins is considered to be the amount which would have been received by 
the holder on such date had it not been renewed.
    (b) The date of original issue for any renewal period shall be 
considered to be the date it begins.
    (c) The date of maturity for the initial period or any renewal 
period shall be considered to be the date it ends.
    (d) The stated redemption price at maturity for the initial period 
or any renewal period shall be considered to be the maximum amount which 
would be received at the end of any such period, without regard to any 
reduction resulting from withdrawal prior to maturity or failure to 
renew at any renewal date.
    (iii) Application of 1-year rule. For purposes of paragraph (b)(2) 
of this section (relating to nonapplication of section 1232(a)(3) to any 
obligation having a term of 1 year or less), the period between the date 
of original issue (as defined in paragraph (b)(3) of Sec.  1.1232-3) of 
a renewable certificate of deposit and its stated maturity date shall 
include all renewal periods with respect to which, under the terms of 
the certificate, the holder may either take action or refrain from 
taking action which would prevent the actual or constructive receipt of 
any interest on such certificate until the expiration of any such 
renewal period whether or not the original date of issue is prior to 
January 1, 1971.
    (iv) Example. The provisions of this subparagraph may be illustrated 
by the following example:


[[Page 362]]


    Example: (a) On May 1, 1969, A purchases a 2-year renewable 
certificate of deposit from M bank, a corporation, for $10,000. Interest 
will be compounded semiannually at 6 percent on May 1 and November 1. 
The terms of the certificate provide that such certificate will be 
automatically renewed on the anniversary date every 2 years if the 
holder does not notify M of an intention not to renew prior to 60 days 
before the particular anniversary date. Thus, on May 1, 1971, and May 1, 
1973, the certificate may be redeemed for $11,255.09 and $12,667.60, 
respectively. However, in no event shall the initial period and the 
renewal periods exceed 10 years. A does not notify M of an intention not 
to renew by March 1, 1971, and the certificate is automatically renewed 
for an additional 2-year period on May 1, 1971.
    (b) Under subdivision (i) of this subparagraph, the May 1, 1971, 
renewal shall be treated as the purchase of a certificate of deposit on 
that date, i.e., after December 31, 1970. Under subdivision (ii) of this 
subparagraph, the issue price is considered to be $11,255.09 and the 
date of maturity is considered to be May 1, 1973. Since the stated 
redemption price at maturity is $12,667.60. A must include $58.85 as 
interest in gross income for each month he holds the certificate during 
the renewal period beginning May 1, 1971, computed as follows:

Original issue discount (stated redemption price,              $1,412.51
 $12,667.60, minus issue price, $11,255.09).................
Divided by: Number of months from renewal to maturity date..   24 months
                                                             -----------
Ratable monthly portion.....................................      $58.85
 

    (5) Time deposit open account arrangements--(i) In general. The term 
time deposit open account arrangement means an arrangement with a fixed 
maturity date where deposits may be made from time to time and 
ordinarily no interest will be paid or constructively received until 
such fixed maturity date. All deposits pursuant to such an arrangement 
constitute parts of a single obligation. The amount of original issue 
discount to be ratably included as interest in the gross income of the 
depositor for any taxable year shall be the sum of the amounts 
separately computed for each deposit. For this purpose, the issue price 
for a deposit is the amount thereof and the stated redemption price at 
maturity is computed under paragraph (b)(1)(iii)(d) of Sec.  1.1232-3.
    (ii) Obligations redeemed before maturity. In the event of a partial 
redemption of a time deposit open account before maturity, the following 
rules, in addition to subparagraph (2) of this paragraph, shall apply:
    (a) If, pursuant to the terms of the withdrawal, the amount received 
by the depositor is determined with reference to the principal amount of 
a specific deposit and interest earned from the date of such deposit, 
then such terms shall control for the purpose of determining which 
deposit was withdrawn.
    (b) If (a) of this subdivision (ii) does not apply, then the 
withdrawal shall be deemed to be of specific deposits together with 
interest earned from the date of such deposits, on a first-in, first-out 
basis.
    (iii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. (i) F is a cash method taxpayer who uses the calendar 
year as his taxable year. On December 1, 1970, F enters into a 5-year 
deposit open account arrangement with M Savings and Loan Corp. The terms 
of the arrangement provide that F will deposit $100 each month for a 
period of 5 years, and that interest will be compounded semiannually (on 
June 1 and December 1) at 6 percent, but will be paid only at maturity. 
Thus, assuming F makes deposits of $100 on the first of each month 
beginning with December 1, 1970, the account will have a stated 
redemption price of $6,998.20 at maturity on December 1, 1975. Since, 
however, section 1232 applies only to deposits made after December 31, 
1970 (see paragraph (d) of Sec.  1.1232-1), the $34.39 of compound 
interest to be earned on the first deposit of $100 over the term of the 
arrangement will not be subject to the ratable inclusion rules of 
section 1232(a)(3). F must include such $34.39 of interest in his gross 
income on December 1, 1975, the date it is paid.
    (ii) For 1971, F must include $44.19 of original issue discount as 
interest in gross income, to be computed as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                             (1)                                   (2)           (3)             (4)              (5)             (6)           (7)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           1971 original
                                                                Months to    Redemption    Original issue   Ratable monthly    Months on  issue discount
                     Date of $100 deposit                       maturity      price at        discount      portion (Col.4 /  deposit in     (Col.5 x
                                                                              maturity      (Col.3-$100)         Col.2)          1971         Col.6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-1-71.......................................................          59         $133.73          $33.73            $0.5717          12           $6.86
2-1-71.......................................................          58          133.07           33.07              .5702          11            6.27
3-1-71.......................................................          57          132.42           32.42              .5688          10            5.69

[[Page 363]]

 
4-1-71.......................................................          56          131.77           31.77              .5673           9            5.11
5-1-71.......................................................          55          131.12           31.12              .5658           8            4.53
6-1-71.......................................................          54          130.48           30.48              .5644           7            3.95
7-1-71.......................................................          53          129.84           29.84              .5630           6            3.38
8-1-71.......................................................          52          129.20           29.20              .5615           5            2.81
9-1-71.......................................................          51          128.56           28.56              .5600           4            2.24
10-1-71......................................................          50          127.93           27.93              .5586           3            1.68
11-1-71......................................................          49          127.30           27.30              .5571           2            1.11
12-1-71......................................................          48          126.68           26.68              .5558           1            0.56
                                                              -------------
    Total original issue discount to be included as interest in F's gross income for 1971...............................................           44.19
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 2. (i) G is a cash method taxpayer who uses the calendar 
year as his taxable year. On February 1, 1971, G enters into a 4-year 
deposit open account arrangement with T Bank, a corporation. The terms 
of the deposit arrangement provide that G may deposit any amount from 
time to time in multiples of $50 for a period of 4 years. The terms also 
provide that G may not redeem any amount until February 1, 1975, except 
in an emergency as defined in, and subject to the qualifications 
provided by, Regulation Q of the Board of Governors of the Federal 
Reserve System. See 12 CFR 217.4(d). Interest will be compounded 
semiannually (on February 1 and August 1) at 6 percent, providing there 
is no redemption prior to February 1, 1975. However, if there is a 
redemption prior to such date, interest will be compounded semiannually 
at 5\1/2\ percent.
    (ii) The schedule of deposits made by G pursuant to the arrangement, 
and computation of ratable monthly portion for each deposit, is set 
forth in the table below:

----------------------------------------------------------------------------------------------------------------
                   (1)                        (2)         (3)         (4)            (5)              (6)
----------------------------------------------------------------------------------------------------------------
                                                                   Redemption  Original issue   Ratable monthly
             Date of deposit               Months to   Amount of    price at      discount      portion (Col.5 /
                                           maturity     deposit     maturity    (Col.4-Col.3)        Col.2)
----------------------------------------------------------------------------------------------------------------
2-1-71..................................          48         100      $126.68          $26.68             0.5558
6-1-71..................................          44         200       248.42           48.42             1.1005
12-1-71.................................          38         500       602.95          102.95             2.7092
2-1-72..................................          36         800       955.24          155.24             4.3122
3-1-72..................................          35         800       950.56          150.56             4.3017
7-1-72..................................          31         600       699.00           99.00             3.1935
8-1-72..................................          30         250       289.82           39.82             1.3273
----------------------------------------------------------------------------------------------------------------

    (iii) With respect to amounts on deposit pursuant to the 
arrangement, the amounts of original issue discount G must include as 
interest in his gross income for 1971 and 1972 are computed in the table 
below:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                              (1)                                    (2)             (3)                (4)                (5)                (6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Ratable                         1971 original                         1972 original
                        Date of deposit                            monthly    Months on deposit    issue discount   Months on deposit    issue discount
                                                                   portion         in 1971        (Col.2 x Col.3)        in 1972        (Col.2 x Col.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2-1-71.........................................................      $0.5558                 11              $6.11                 12              $6.67
6-1-71.........................................................       1.1005                  7               7.70                 12              13.21
12-1-71........................................................       2.7092                  1               2.71                 12              32.51
2-1-72.........................................................       4.3122  .................  .................                 11              47.43
3-1-72.........................................................       4.3017  .................  .................                 10              43.02
7-1-72.........................................................       3.1935  .................  .................                  6              19.16
8-1-72.........................................................       1.3273  .................  .................                  5               6.64
                                                                -------------                   --------------------
    Total original issue discount includible as interest in gross income for taxable year......              16.52  .................             168.64
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 364]]

    (6) Certain contingent interest arrangement--(i) In general. If 
under the terms of a deposit arrangement:
    (a) The holder cannot receive payment of any interest or 
constructively receive any interest prior to a fixed maturity date,
    (b) Interest is earned at a guaranteed minimum rate of compound 
interest,
    (c) Additional contingent interest may be earned for any year at a 
rate not to exceed one percentage point above such guaranteed minimum 
rate, and
    (d) Any additional contingent interest is credited at least annually 
to the depositor's account,

Then any contingent interest credited to the depositor shall be treated 
as creating a separate obligation subject to the rules of subdivision 
(ii) of this subparagraph.
    (ii) Computation. For purposes of computing the original issue 
discount to be included as interest in the depositor's gross income 
under section 1232(a)(3) with respect to such separate obligation:
    (a) The issue price shall be zero,
    (b) The date of original issue shall be the date on which the 
contingent interest is credited to the depositor's account and begins to 
earn interest,
    (c) The date of maturity shall be the fixed maturity date of the 
deposit, and
    (d) The stated redemption price at maturity is the sum of the amount 
of such contingent interest plus any interest to be earned thereon at 
the guaranteed minimum rate of compound interest between such dates of 
original issue and maturity.
    (7) Contingent interest arrangements other than those described in 
subparagraph (6)--(i) In general. If under the terms of a deposit 
arrangement, contingent interest may be earned and credited to a 
depositor's account, but is neither actually or constructively received 
before a fixed maturity date nor treated under subparagraph (6)(i) of 
this paragraph as creating a separate obligation, then the redemption 
price shall include the amount which would be credited to such account 
assuming the issuer, during the term of such account, credits contingent 
interest at the greater of the rate:
    (a) Last credited on a similar account, or
    (b) Equal to the average rate credited for the preceding 5 calendar 
years on a similar account.
    (ii) Adjustments for additional interest. The rate taken into 
account under this subparagraph in computing the redemption price shall 
be treated as the guaranteed minimum rate for purposes of applying 
subparagraph (6) of this paragraph in the event the rate at which 
contingent interest is actually credited to the depositor's account 
exceeds such rate previously taken into account. If for any period the 
actual rate at which contingent interest is credited to the account 
exceeds by more than 1 percentage point the rate for the previous period 
taken into account under this subparagraph in computing the redemption 
price, a new computation shall be made to determine the ratable monthly 
portion of original issue discount to be included as interest in the 
gross income of the depositor over the remaining term of the account. 
For purposes of such computation, the date that interest is first so 
credited to the account shall be treated as the issue date, the adjusted 
basis of the account on such date shall be the issue price, and the 
redemption price shall equal the amount actually on deposit in the 
account on such date plus the amount which would be credited to such 
account assuming the issuer, during the remaining term of such account, 
continues to credit contingent interest at the new rate.
    (iii) Adjustment for reduced interest. If for any period the actual 
rate of interest at which contingent interest is credited to the 
depositor's account is less than the rate for the previous period taken 
into account under this subparagraph in computing the redemption price, 
the difference between the amount of interest which would have been 
credited to the account at the rate for such previous period and the 
amount actually credited shall be allowed as a deduction against the 
amount of original issue discount with respect to such account required 
to be included in the gross income of the depositor. If an account is 
redeemed for a price less than the adjusted basis of the account, the 
depositor shall be allowed

[[Page 365]]

as a deduction, in computing adjusted gross income, the amount of the 
original issue discount he included in gross income but did not receive.
    (f) Application of section 1232(a)(3) to face-amount certificates--
(1) In general. Under paragraph (c)(3) of Sec.  1.1232-1, the provisions 
of section 1232(a)(3) and this section apply in the case of a face-
amount certificate issued after December 31, 1975 (other than such a 
certificate issued pursuant to a written commitment which was binding on 
such date and at all times thereafter).
    (2) Relationship with paragraph (e) of this section. Determinations 
with regard to the inclusion as interest of original issue discount on, 
and certain adjustments with respect to, face-amount certificates to 
which this section applies shall be made in a manner consistent with the 
rules of paragraph (e) of this section (relating to the application of 
section 1232 to certain deposits in financial institutions and similar 
arrangements). Thus, for example, if a face-amount certificate is 
redeemed before maturity, the holder shall be allowed a deduction in 
computing adjusted gross income computed in a manner consistent with the 
rules of paragraph (e)(2) of this section. For a further example, if 
under the terms of a face-amount certificate, the issuer may grant 
additional credits to be paid at a fixed maturity date, computations 
with respect to such additional credits shall be made in a manner 
consistent with the rules of paragraphs (e) (6) and (7) of this section 
(as applicable) relating to contingent interest arrangements.

[T.D. 7154, 36 FR 25005, Dec. 28, 1971; 37 FR 527, Jan. 13, 1972, as 
amended by T.D. 7213, 37 FR 21993, Oct. 18, 1972; 37 FR 22863, Oct. 26, 
1972; T.D. 7311, 39 FR 11880, Apr. 1, 1974; T.D. 7365, 40 FR 27936, July 
2, 1975]



Sec.  1.1233-1  Gains and losses from short sales.

    (a) General. (1) For income tax purposes, a short sale is not deemed 
to be consummated until delivery of property to close the short sale. 
Whether the recognized gain or loss from a short sale is capital gain or 
loss or ordinary gain or loss depends upon whether the property so 
delivered constitutes a capital asset in the hands of the taxpayer.
    (2) Thus, if a dealer in securities makes a short sale of X 
Corporation stock, ordinary gain or loss results on closing of the short 
sale if the stock used to close the short sale was stock which he held 
primarily for sale to customers in the ordinary course of his trade or 
business. If the stock used to close the short sale was a capital asset 
in his hands, or if the taxpayer in this example was not a dealer, a 
capital gain or loss would result.
    (3) Generally, the period for which a taxpayer holds property 
delivered to close a short sale determines whether long-term or short-
term capital gain or loss results.
    (4) Thus, if a taxpayer makes a short sale of shares of stock and 
covers the short sale by purchasing and delivering shares which he held 
for not more than 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable years beginning in 1977), the recognized gain 
or loss would be considered short-term capital gain or loss. If the 
short sale is made through a broker and the broker borrows property to 
make a delivery, the short sale is not deemed to be consummated until 
the obligation of the seller created by the short sale is finally 
discharged by delivery of property to the broker to replace the property 
borrowed by the broker.
    (5) For rules for determining the date of sale for purposes of 
applying under section 1091 the 61-day period applicable to a short sale 
of stock or securities at a loss, see paragraph (g) of Sec.  1.1091-1.
    (b) Hedging transactions. Under section 1233(g), the provisions of 
section 1233 and this section shall not apply to any bona fide hedging 
transaction in commodity futures entered into by flour millers, 
producers of cloth, operators of grain elevators, etc., for the purpose 
of their business. Gain or loss from a short sale of commodity futures 
which does not qualify as a hedging transaction shall be considered gain 
or loss from the sale or exchange of a capital asset if the commodity 
future used to close the short sale constitutes a capital asset in the 
hands of the taxpayer as explained in paragraph (a) of this section.
    (c) Special short sales--(1) General. Section 1233 provides rules as 
to the

[[Page 366]]

tax consequences of a short sale of property if gain or loss from the 
short sale is considered as gain or loss from the sale or exchange of a 
capital asset under section 1233(a) and paragraph (a) of this section 
and if, at the time of the short sale or on or before the date of the 
closing of the short sale, the taxpayer holds property substantially 
identical to that sold short. The term property is defined for purposes 
of such rules to include only stocks and securities (including stocks 
and securities dealt with on a when issued basis) and commodity futures, 
which are capital assets in the hands of the taxpayer. Certain 
restrictions on the application of the section to commodity futures are 
provided in section 1233(e) and paragraph (d)(2) of this section. 
Section 1233(f) contains special provisions governing the operation of 
rule (2) in subparagraph (2) of this paragraph in the case of a purchase 
and short sale of stock (as defined in subparagraph (3) qualifying as an 
arbitrage operation. See paragraph (f) of this section for detailed 
rules relating to arbitrage operations in stocks and securities.
    (2) Treatment of special short sales. The first two rules, which are 
set forth in section 1233(b), are applicable whenever property 
substantially identical to that sold short has been held by the taxpayer 
on the date of the short sale for not more than 1 year (6 months for 
taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977) (determined without regard to rule (2), contained in 
this subparagraph, relating to the holding period) or is acquired by him 
after the short sale and on or before the date of the closing thereof. 
These rules are:

    Rule (1). Any gain upon the closing of such short sale shall be 
considered as a gain upon the sale or exchange of a capital asset held 
for not more than 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable years beginning in 1977) (notwithstanding the 
period of time any property used to close such short sale has been 
held); and
    Rule (2). The holding period of such substantially identical 
property shall be considered to begin (notwithstanding the provisions of 
section 1223) on the date of the closing of such short sale or on the 
date of a sale, gift, or other disposition of such property, whichever 
date occurs first.

    (3) Options to sell. For the purpose of rule (1) and rule (2) in 
subparagraph (2) of this paragraph, the acquisition of an option to sell 
property at a fixed price shall be considered a short sale, and the 
exercise or failure to exercise such option shall be considered as a 
closing of such short sale, except that any option to sell property at a 
fixed price acquired on or after August 17, 1954 (the day after 
enactment of the Internal Revenue Code of 1954), shall not be considered 
a short sale and the exercise or failure to exercise such option shall 
not be considered as the closing of a short sale provided that the 
option and property identified as intended to be used in its exercise 
are acquired on the same date. This exception shall not apply, if the 
option is exercised, unless it is exercised by the sale of the property 
so identified. In the case of any option not exercised which falls 
within this exception, the cost of such option shall be added to the 
basis of the property with which such option is identified. If the 
option itself does not specifically identify the property intended to be 
used in exercising the option, then the identification of such property 
shall be made by appropriate entries in the taxpayer's records within 15 
days after the date such property is acquired or before November 17, 
1956, whichever expiration date later occurs.
    (4) Treatment of losses. The third rule, which is set forth in 
section 1233(d), is applicable whenever property substantially identical 
to that sold short has been held by the taxpayer on the date of the 
short sale for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977). This rule 
is:

    Rule (3). Any loss upon the closing of such short sale shall be 
considered as a loss upon the sale or exchange of a capital asset held 
for more than 1 year (6 months for taxable years beginning before 1977; 
9 months for taxable years beginning in 1977), not withstanding the 
period of time any property used to close such short sale has been held. 
For the purpose of this rule, the acquisition of an option to sell 
property at a fixed price is not considered a short sale, and the 
exercise or failure to exercise such option is not considered as a 
closing of a short sale.

    (5) Application of rules. Rules (1) and (3) contained in 
subparagraphs (2) and (4) of this paragraph do not apply to

[[Page 367]]

the gain or loss attributable to so much of the property sold short as 
exceeds in quantity the substantially identical property referred to in 
section 1233 (b) and (d), respectively. Except as otherwise provided in 
section 1233(f), rule (2) in subparagraph (2) of this paragraph applies 
to the substantially identical property referred to in section 1233(b) 
in the order of the dates of the acquisition of such property, but only 
to so much of such property as does not exceed the quantity sold short. 
If property substantially identical to that sold short has been held by 
the taxpayer on the date of the short sale for not more than 1 year (6 
months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977), or is acquired by him after the short sale and 
on or before the date of the closing thereof, and if property 
substantially identical to that sold short has been held by the taxpayer 
on the date of the short sale for more than 1 year (6 months for taxable 
years beginning before 1977; 9 months for taxable years beginning in 
1977), all three rules are applicable.
    (6) Examples. The following examples illustrate the application of 
these rules to short sales of stock in the case of a taxpayer who makes 
his return on the basis of the calendar year:

    Example 1. A buys 100 shares of X stock at $10 per share on February 
1, 1955, sells short 100 shares of X stock at $16 per share on July 1, 
1955, and closes the short sale on August 2, 1955, by delivering the 100 
shares of X stock purchased on February 1, 1955, to the lender of the 
stock used to effect the short sale. Since 100 shares of X stock had 
been held by A on the date of the short sale for not more than 6 months, 
the gain of $600 realized upon the closing of the short sale is, by 
application of rule (1) in subparagraph (2) of this paragraph, a short-
term capital gain.
    Example 2. A buys 100 shares of X stock at $10 per share on February 
1, 1955, sells short 100 shares of X stock at $16 per share on July 1, 
1955, closes the short sale on August 1, 1955, with 100 shares of X 
stock purchased on that date at $18 per share, and on August 2, 1955, 
sells at $18 per share the 100 shares of X stock purchased on February 
1, 1955. The $200 loss sustained upon the closing of the short sale is a 
short-term capital loss to which section 1233(d) has no application. By 
application of rule (2) in subparagraph (2) of this paragraph, however, 
the holding period of the 100 shares of X stock purchased on February 1, 
1955, and sold on August 2, 1955 is considered to begin on August 1, 
1955, the date of the closing of the short sale. The $800 gain realized 
upon the sale of such stock is, therefore, a short-term capital gain.
    Example 3. A buys 100 shares of X stock at $10 per share on February 
1, 1955, sells short 100 shares of X stock at $16 per share on September 
1, 1955, sells on October 1, 1955, at $18 per share the 100 shares of X 
stock purchased on February 1, 1955, and closes the short sale on 
October 1, 1955, with 100 shares of X stock purchased on that date at 
$18 per share. The $800 gain realized upon the sale of the 100 shares of 
X stock purchased on February 1, 1955, is a long-term capital gain to 
which section 1233(b) has no application. Since A had held 100 shares of 
X stock on the date of the short sale for more than 6 months, the $200 
loss sustained upon the closing of the short sale is, by application of 
rule (3) in subparagraph (4) of this paragraph, a long-term capital 
loss. If, instead of purchasing 100 shares of X stock on October 1, 
1955, A closed the short sale with the 100 shares of stock purchased on 
February 1, 1955, the $600 gain realized on the closing of the short 
sale would be a long-term capital gain to which section 1233(b) has no 
application.
    Example 4. A sells short 100 shares of X stock at $16 per share on 
February 1, 1955. He buys 250 shares of X stock on March 1, 1955, at $10 
per share and holds the latter stock until September 2, 1955 (more than 
6 months), at which time, 100 shares of the 250 shares of X stock are 
delivered to close the short sale made on February 1, 1955. Since 
substantially identical property was acquired by A after the short sale 
and before it was closed, the $600 gain realized on the closing of the 
short sale is, by application of rule (1) in subparagraph (2) of this 
paragraph, a short-term capital gain. The holding period of the 
remaining 150 shares of X stock is not affected by section 1233 since 
this amount of the substantially identical property exceeds the quantity 
of the property sold short.
    Example 5. A buys 100 shares of X stock at $10 per share on February 
1, 1955, buys an additional 100 shares of X stock at $20 per share on 
July 1, 1955, sells short 100 shares of X stock at $30 per share on 
September 1, 1955, and closes the short sale on February 1, 1956, by 
delivering the 100 shares of X stock purchased on February 1, 1955, to 
the lender of the stock used to effect the short sale. Since 100 shares 
of X stock had been held by A on the date of the short sale for not more 
than 6 months, the gain of $2,000 realized upon the closing of the short 
sale is, by application of rule (1) in subparagraph (2) of this 
paragraph, a short-term capital gain and the holding period of the 100 
shares of X stock purchased on July 1, 1955, is considered, by 
application of rule (2) in subparagraph (2) of this paragraph to begin 
on February 1, 1956, the date of the closing of the short sale. If, 
however, the 100 shares of X stock purchased on July 1, 1955,

[[Page 368]]

had been used by A to close the short sale, then, since 100 shares of X 
stock had been held by A on the date of the short sale for not more than 
6 months, the gain of $1,000 realized upon the closing of the short sale 
would be, by application of rule (1) in subparagraph (2) of this 
paragraph, a short-term capital gain, but the holding period of the 100 
shares of X stock purchased on February 1, 1955, would not be affected 
by section 1233. If, on the other hand, A purchased an additional 100 
shares of X stock at $40 per share on February 1, 1956, and used such 
shares to close the short sale at that time, then, since 100 shares of X 
stock had been held by A on the date of the short sale for more than 6 
months, the loss of $1,000 sustained upon the closing of the short sale 
would be, by application of rule (3) in subparagraph (4) of this 
paragraph, a long-term capital loss, and since 100 shares of X stock had 
been held by A on the date of the short sale for not more than 6 months, 
the holding period of the 100 shares of X stock purchased on July 1, 
1955, would be considered, by application of rule (2) in subparagraph 
(2) of this paragraph, to begin on February 1, 1956, but the holding 
period of the 100 shares of X stock purchased on February 1, 1955, would 
not be affected by section 1233.
    Example 6. A buys 100 shares of X preferred stock at $10 per share 
on February 1, 1955. On July 1, 1955, he enters into a contract to sell 
100 shares of XY common stock at $16 per share when, as, and if issued 
pursuant to a particular plan of reorganization. On August 2, 1955, he 
receives 100 shares of XY common stock in exchange for the 100 shares of 
X preferred stock purchased on February 1, 1955, and delivers such 
common shares in performance of his July 1, 1955, contract. Assume that 
the exchange of the X preferred stock for the XY common stock is a tax-
free exchange pursuant to section 354(a)(1), and that on the basis of 
all of the facts and circumstances existing on July 1, 1955, the when 
issued XY common stock is substantially identical to the X preferred 
stock. Since 100 shares of substantially identical property had been 
held by A for not more than 6 months on the date of entering into the 
July 1, 1955, contract of sale, the gain of $600 realized upon the 
closing of the contract of sale is, by application of rule (1) in 
subparagraph (2) of this paragraph, a short-term capital gain.

    (d) Other rules for the application of section 1233--(1) 
Substantially identical property. The term substantially identical 
property is to be applied according to the facts and circumstances in 
each case. In general, as applied to stocks or securities, the term has 
the same meaning as the term substantially identical stock or securities 
used in section 1091, relating to wash sales of stocks or securities. 
For certain restrictions on the term as applied to commodity futures see 
subparagraph (2) of this paragraph. Ordinarily, stocks or securities of 
one corporation are not considered substantially identical to stocks or 
securities of another corporation. In certain situations they may be 
substantially identical; for example, in the case of a reorganization 
the facts and circumstances may be such that the stocks and securities 
of predecessor and successor corporations are substantially identical 
property. Similarly, bonds or preferred stock of a corporation are not 
ordinarily considered substantially identical to the common stock of the 
same corporation. However, in certain situations, as, for example, where 
the preferred stock or bonds are convertible into common stock of the 
same corporation, the relative values, price changes, and other 
circumstances may be such as to make such bonds or preferred stock and 
the common stock substantially identical property. Similarly, depending 
on the facts and circumstances, the term may apply to the stocks and 
securities to be received in a corporate reorganization or 
recapitalization, traded in on a when issued basis, as compared with the 
stocks or securities to be exchanged in such reorganization or 
recapitalization.
    (2) Commodity futures. (i) As provided in section 1233(e)(2)(B), in 
the case of futures transactions in any commodity on or subject to the 
rules of a board of trade or commodity exchange, a commodity future 
requiring delivery in one calendar month shall not be considered as 
property substantially identical to another commodity future requiring 
delivery in a different calendar month. For example, commodity futures 
in May wheat and July wheat are not considered, for the purpose of 
section 1233, substantially identical property. Similarly, futures in 
different commodities which are not generally through custom of the 
trade used as hedges for each other (such as corn and wheat, for 
example) are not considered substantially identical property. If 
commodity futures are otherwise substantially identical property, the 
mere fact that they were procured through different

[[Page 369]]

brokers will not remove them from the scope of the term substantially 
identical property. Commodity futures procured on different markets may 
come within the term substantially identical property depending upon the 
facts and circumstances in the case, with the historical similarity in 
the price movements in the two markets as the primary factor to be 
considered.
    (ii) Section 1233(e)(3), relating to so-called arbitrage 
transactions in commodity futures, provides that where a taxpayer enters 
into two commodity futures transactions on the same day, one requiring 
delivery by him in one market and the other requiring delivery to him of 
the same (or substantially identical) commodity in the same calendar 
month in a different market, and the taxpayer subsequently closes both 
such transactions on the same day, section 1233 shall have no 
application to so much of the commodity involved in either such 
transaction as does not exceed in quantity the commodity involved in the 
other. Section 1233(f), relating to arbitrage operations in stocks or 
securities, has no application to arbitrage transactions in commodity 
futures.
    (iii) The following example indicates the application of section 
1233 to a commodity futures transaction:

    Example: A, who makes his return on the basis of the calendar year, 
on February 1, 1955, enters into a contract through broker X to purchase 
10,000 bushels of December wheat on the Chicago market at $2 per bushel. 
On July 1, 1955, he enters into a contract through broker Y to sell 
10,000 bushels of December wheat on the Chicago market at $2.25 per 
bushel. On August 2, 1955, he closes both transactions at $2.50 per 
bushel. The $2,500 loss sustained on the closing of the short sale is a 
short-term capital loss to which section 1233(d) has no application. By 
application of rule (2) in paragraph (c)(2) of this section, however, 
the holding period of the futures contract entered into on February 1, 
1955, is considered to begin on August 2, 1955, the date of the closing 
of the short sale. The $5,000 gain realized upon the closing of such 
contract is, therefore, a short-term capital gain.

    (3) Husband and wife. Section 1233(e)(2)(C) provides that, in the 
case of a short sale of property by an individual, the term taxpayer in 
the application of subsections (b), (d), and (e) shall be read as 
taxpayer or his spouse. Thus, if the spouse of a taxpayer holds or 
acquires property substantially identical to that sold short by the 
taxpayer, and other conditions of subsections (b), (d), and (e) are met, 
then the rules set forth therein are applicable to the same extent as if 
the taxpayer held or acquired the substantially identical property. For 
this purpose, an individual who is legally separated from the taxpayer 
under a decree of divorce or of separate maintenance shall not be 
considered as the spouse of the taxpayer.
    (e) Special rule for short sales by dealers in securities under 
certain circumstances. In the case of a short sale of stock (as defined 
in subparagraph (3) of this paragraph) after December 31, 1957, by a 
dealer in securities, section 1233(e)(4)(A) provides that the holding 
period of substantially identical stock which he has held as an 
investment for not more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) 
shall be determined in accordance with section 1233(b)(2) unless such 
short sale is closed within 20 days of the date on which it was made. 
See rule (2) in paragraph (c)(2) of this section for the purpose of 
determining the holding period of such substantially identical stock. In 
addition, section 1233(e)(4)(B) provides that for the purpose of the 
special rule of section 1233(e)(4)(A), the acquisition of an option to 
sell property at a fixed price shall be considered a short sale, and the 
exercise or failure to exercise such option shall be considered a 
closing of such short sale. For purposes of this paragraph:
    (1) Whether or not a taxpayer is a dealer in securities shall be 
determined in accordance with the meaning of the term for purposes of 
section 1236;
    (2) Whether or not stock is substantially identical with other 
property shall be determined in accordance with the provisions of 
paragraph (d)(1) of this section; and
    (3) The term stock means:
    (i) Any share or certificate of stock,
    (ii) Any bond or other evidence of indebtedness which is convertible 
into a share or certificate of stock, and
    (iii) Any evidence of an interest in, or right to subscribe to or 
purchase, any

[[Page 370]]

of the items described in subdivision (i) or (ii) of this subparagraph.
    (f) Arbitrage operations in stocks and securities and holding 
periods--(1) General rule. (i) In the case of a short sale entered into 
as part of an arbitrage operation, rule (2) of paragraph (c)(2) of this 
section shall apply first to substantially identical property acquired 
for arbitrage operations and held by the taxpayer at the close of 
business on the day of the short sale. The holding period of 
substantially identical property not acquired for arbitrage operations 
shall be affected only to the extent that the amount of property sold 
short exceeds the amount of substantially identical property acquired 
for arbitrage operations and held by the tapayer at the close of 
business on the day of the short sale.
    (ii) If the substantially identical property acquired for arbitrage 
operations is disposed of without closing the short sale so that a net 
short position in assets acquired for arbitrage operations is created, a 
short sale in the amount of such net short position will be deemed to 
have been made on the day such net short position is created. Rule (2) 
of paragraph (c)(2) of this section will then apply to substantially 
identical property not acquired for arbitrage operations to the same 
extent as if the taxpayer, on the day such net short position is 
created, sold short an amount equal to the amount of the net short 
position in a transaction not entered into as part of an arbitrage 
operation.
    (iii) The following examples illustrate the application of rule (2) 
of paragraph (c)(2) of this section to arbitrage operations:

    Example 1. On August 13, 1957, A buys 100 bonds of X Corporation for 
purposes other than arbitrage operations. The bonds are convertible at 
the option of the bondholders into common stock of X Corporation on the 
basis of one bond for one share of stock. On November 1, 1957, A sells 
short 100 shares of common stock of X Corporation in a transaction 
identified and intended to be part of an arbitrage operation and on the 
same day buys another 100 bonds of X Corporation in a transaction 
identified and intended to be part of the same arbitrage operation. The 
bonds acquired on both August 13, 1957, and November 1, 1957, are, on 
the basis of all the facts and circumstances, substantially identical to 
the common stock of X Corporation. On December 1, 1957, A closes the 
short sale with 100 shares of common stock of X Corporation acquired on 
that day. The holding period of the bonds acquired on November 1, by 
application of rule (2) of paragraph (c)(2) of this section, will be 
deemed to begin on December 1 and the holding period of the bonds 
acquired on August 13 will be unaffected. If, instead of purchasing the 
100 shares of common stock of X Corporation on December 1, 1957, A had 
converted the bonds acquired on November 1 into common stock and, on 
December 1, 1957, used the stock so acquired to close the short sale, 
rule (2) of paragraph (c)(2) of this section would similarly have no 
effect on the holding period of the bonds acquired on August 13.
    Example 2. Assume the same facts as in example (1), except that A, 
on December 1, sells the bonds acquired on November 1 (or converts such 
bonds into common stock and sells the stock), but does not close the 
short sale. The sale of the bonds (or stock) creates a net short 
position in assets acquired for arbitrage operations which is deemed to 
be a short sale made on December 1. Accordingly, the holding period of 
the bonds acquired on August 13 will, by application of rule (2) of 
paragraph (c)(2) of this section, begin on the date such short sale is 
closed or on the date of sale, gift, or other disposition of such bonds, 
whichever date occurs first.

    (2) Right to receive or acquire property. (i) For purposes of 
section 1233(f) (1) and (2) and subparagraph (1) of this paragraph, a 
taxpayer will be deemed to hold substantially identical property 
acquired for arbitrage operations at the close of any business day if, 
by virtue of the ownership of other property acquired for arbitrage 
operations (whether or not substantially identical) or because of any 
contract entered into by the taxpayer in an arbitrage operation, he then 
has the right to receive or acquire such substantially identical 
property.
    (ii) The application of section 1233(f)(3) and subdivision (i) of 
this subparagraph may be illustrated by the following example:

    Example: A acquires on August 13, 1957, 100 shares of common stock 
of X Corporation for purposes other than arbitrage operations. On 
November 1, A sells short, in a transaction identified and intended to 
be part of an arbitrage operation, 100 shares of X common stock. On the 
same day, in a transaction also identified and intended to be part of 
the same arbitrage operation, A contracts to purchase 100 shares of 
preferred stock of X. The preferred stock of X may be converted into 
common stock of X on the basis of one

[[Page 371]]

share of preferred stock for one share of common stock. The preferred 
stock is not actually delivered to A until November 3. Since A has 
contracted before the close of business on the date of the short sale, 
as part of an arbitrage operation, to purchase property by virtue of 
which he has the right to receive or acquire substantially identical 
property to that sold short, he will be deemed, for purposes of section 
1233(f) (1) and (2), to hold such substantially identical property at 
the close of business on the date of the short sale. For purposes of 
this subparagraph, it is immaterial whether, on the basis of all the 
facts and circumstances, the preferred stock of X is substantially 
identical to the common stock of X. The short sale on November 1 does 
not affect the holding period of the 100 shares of X Corporation common 
stock purchased on August 13, 1957. Because of the operation of rule (2) 
of paragraph (c)(2) of this section, the holding period of the preferred 
stock acquired as the result of A's contract to purchase it as part of 
an arbitrage operation (or the common stock which A acquires by 
conversion of such preferred stock into common stock) will not begin 
until the short sale entered into in the arbitrage operation is closed.

    (3) Definition of arbitrage operations. For the purpose of section 
1233(f), arbitrage operations are transactions involving the purchase 
and sale of property entered into for the purpose of profiting from a 
current difference between the price of the property purchased and the 
price of the property sold. Assets acquired for arbitrage operations 
include only stocks and securities and rights to acquire stocks and 
securities. The property purchased may be either identical to the 
property sold or, if not so identical, such that its acquisition will 
entitle the taxpayer to acquire property which is so identical. Thus, 
the purchase of bonds or preferred stock convertible, at the holder's 
option, into common stock and the short sale of the common stock which 
may be acquired therefor, or the purchase of stock rights and the short 
sale of the stock to be acquired on the exercise of such rights, may 
qualify as arbitrage operations. A transaction will qualify as an 
arbitrage operation under section 1233(f) only if the taxpayer properly 
identifies the transaction as an arbitrage operation on his records as 
soon as he is able to do so. Such identification must ordinarily be 
entered in the taxpayer's records on the day of the transaction. 
Property acquired in a transaction properly identified as part of an 
arbitrage operation is the only property which will be deemed acquired 
for an arbitrage operation. The provisions of section 1233(f) and this 
paragraph shall continue to apply to property acquired in a transaction 
properly identified as an arbitrage operation although, because of 
subsequent events, e.g., a change in the value of bonds so acquired or 
of stock into which such bonds may be converted, the taxpayer sells such 
property outright rather than using it to complete the arbitrage 
operation.
    (4) Effective date of section 1233(f). Section 1233(f), relating to 
arbitrage operations involving short sales of property, is effective 
only with respect to taxable years ending after August 12, 1955, and 
only with respect to short sales made after such date.

[T.D. 6500, 25 FR 12011, Nov. 26, 1960, as amended by T.D. 6494, 25 FR 
9372, Sept. 30, 1960; T.D. 6926, 32 FR 11468, Aug. 9, 1967; T.D. 7728, 
45 FR 72650, Nov. 3, 1980]



Sec.  1.1233-2  Hedging transactions.

    The character of gain or loss on a short sale that is (or is 
identified as being) part of a hedging transaction is determined under 
the rules of Sec.  1.1221-2.

[T.D. 8555, 59 FR 36367, July 18, 1994]



Sec.  1.1234-1  Options to buy or sell.

    (a) Sale or exchange--(1) Capital assets. Gain or loss from the sale 
or exchange of an option (or privilege) to buy or sell property which is 
(or if acquired would be) a capital asset in the hands of the taxpayer 
holding the option is considered as gain or loss from the sale or 
exchange of a capital asset (unless, under the provisions of 
subparagraph (2) of this paragraph, the gain or loss is subject to the 
provisions of section 1231). The period for which the taxpayer has held 
the option determines whether the capital gain or loss is short-term or 
long-term.
    (2) Section 1231 transactions. Gain or loss from the sale or 
exchange of an option to buy or sell property is considered a gain or 
loss subject to the provisions of section 1231 if, had the sale or 
exchange been of the property subject to the option, held by the 
taxpayer for the length of time he held the option,

[[Page 372]]

the sale or exchange would have been subject to the provisions of 
section 1231.
    (3) Other property. Gain or loss from the sale or exchange of an 
option to buy or sell property which is not (or if acquired would not 
be) a capital asset in the hands of the taxpayer holding the option is 
considered ordinary income or loss (unless under the provisions of 
subparagraph (2) of this paragraph, the gain or loss is subject to the 
provisions of section 1231).
    (b) Failure to exercise option. If the holder of an option to buy or 
sell property incurs a loss on failure to exercise the option, the 
option is deemed to have been sold or exchanged on the date that it 
expired. Any such loss to the holder of an option is treated under the 
general rule provided in paragraph (a) of this section. In general, any 
gain to the grantor of an option arising from the failure of the holder 
to exercise it, and any gain or loss realized by the grantor of an 
option as a result of a closing transaction, such as repurchasing the 
option from the holder, is considered ordinary income or loss. However, 
for the treatment of gain or loss from a closing transaction with 
respect to or gain on the lapse of an option granted in stock, 
securities, commodities or commodity futures, see section 1234(b) and 
Sec.  1.1234-3. For special rules for grantors of straddles applicable 
to certain options granted on or before September 1, 1976, see Sec.  
1.1234-2.
    (c) Certain options to sell property at a fixed price. Section 1234 
does not apply to a loss on the failure to exercise an option to sell 
property at a fixed price which is acquired on the same day on which the 
property identified as intended to be used in exercising the option is 
acquired. Such a loss is not recognized, but the cost of the option is 
added to the basis of the property with which it is identified. See 
section 1233(c) and the regulations thereunder.
    (d) Dealers in options to buy or sell. Any gain or loss realized by 
a dealer in options from the sale or exchange or an option to buy or 
sell property is considered ordinary income or loss under paragraph 
(a)(3) of this section. A dealer in options to buy or sell property is 
considered a dealer in the property subject to the option.
    (e) Other exceptions. Section 1234 does not apply to gain resulting 
from the sale or exchange of an option:
    (1) To the extent that the gain is in the nature of compensation 
(see sections 61 and 421, and the regulations thereunder, relating to 
employee stock options);
    (2) If the option is treated as section 306 stock (see section 306 
and the regulations thereunder, relating to dispositions of certain 
stock); or
    (3) To the extent that the gain is a distribution of earnings or 
profits taxable as a dividend (see section 301 and the regulations 
thereunder, relating to distributions of property).
    (4) Acquired by the taxpayer before March 1, 1954, if in the hands 
of the taxpayer such option is a capital asset (whether or not the 
property to which the option relates is, or would be if acquired by the 
taxpayer, a capital asset in the hands of the taxpayer).
    (f) Limitations on effect of section. Losses to which section 1234 
applies are subject to the limitations on losses under sections 165(c) 
and 1211 when applicable. Section 1234 does not permit the deduction of 
any loss which is disallowed under any other provision of law. In 
addition, section 1234 does not apply to an option to lease property, 
but does apply to an option to buy or sell a lease. Thus, an option to 
obtain all the right, title, and interest of a lessee in leased property 
is subject to the provisions of section 1234, but an option to obtain a 
sublease from the lessee is not. Furthermore, if section 1234 applies to 
an option to buy or sell a lease, it is the character the lease itself, 
if acquired, would have in the hands of the taxpayer, and not the 
character of the property leased, which determines the treatment of gain 
or loss experienced by the taxpayer with respect to such an option.
    (g) Examples. The rules set forth in this section may be illustrated 
by the following examples:

    Example 1. A taxpayer is considering buying a new house for his 
residence and acquires an option to buy a certain house at a fixed 
price. Although the property goes up in value, the taxpayer decides he 
does not want

[[Page 373]]

the house for his residence and sells the option for more than he paid 
for it. The gain which taxpayer realized is a capital gain since the 
property, if acquired, would have been a capital asset in his hands.
    Example 2. Assume the same facts as in example (1), except that the 
property goes down in value, and the taxpayer decides not to purchase 
the house. He sells the option at a loss. While this is a capital loss 
under section 1234, it is not a deductible loss because of the 
provisions of section 165(c).
    Example 3. A dealer in industrial property acquires an option to buy 
an industrial site and fails to exercise the option. The loss is an 
ordinary loss since he would have held the property for sale to 
customers in the ordinary course of his trade or business if he had 
acquired it.

[T.D. 6500, 25 FR 12013, Nov. 26, 1960, as amended by T.D. 7652, 44 FR 
62282, Oct. 30, 1979]



Sec.  1.1234-2  Special rule for grantors of straddles applicable 
to certain options granted on or before September 1, 1976.

    (a) In general. Section 1234(c)(1) provides a special rule 
applicable in the case of gain on the lapse of an option granted by the 
taxpayer as part of a straddle. In such a case, the gain shall be deemed 
to be gain from the sale or exchange of a capital asset held for not 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977) on the day that the option 
expired. Thus, such gain shall be treated as a short-term capital gain, 
as defined in section 1222(1). Section 1234(c)(1) does not apply to any 
person who holds securities (including options to acquire or sell 
securities) for sale to customers in the ordinary course of his trade or 
business.
    (b) Definitions. The following definitions apply for purposes of 
section 1234(c) and this section.
    (1) Straddle. The term straddle means a simultaneously granted 
combination of an option to buy (i.e., a call) and an option to sell 
(i.e., a put) the same quantity of a security at the same price during 
the same period of time.
    (2) Security. The term security has the meaning assigned to such 
term by section 1236(c) and the regulations thereunder. Thus, for 
example, the term security does not include commodity futures.
    (3) Grantor. The term grantor means the writer or issuer of the 
option contracts making up the straddle.
    (4) Multiple option. The term multiple option means a simultaneously 
granted combination of an option to buy plus an option to sell plus one 
or more additional options to buy or sell a security.
    (c) Special rules in the case of a multiple option. (1) If, in the 
case of a multiple option, the number of the options to sell and the 
number of the options to buy are the same and if the terms of all of the 
options are identical (as to the quantity of the security, price, and 
period of time), then each of the options contained in the multiple 
option shall be deemed to be a component of a straddle for purposes of 
section 1234(c)(1) and paragraph (a) of this section.
    (2) If, in the case of a multiple option, the number of the options 
to sell and the number of the options to buy are not the same or if the 
terms of all of the options are not identical (as to the quantity of the 
security, price, and period of time), then section 1234(c)(1) applies to 
gain on the lapse of an option granted as part of the multiple option 
only if:
    (i) The grantor of the multiple option identifies the two options 
which comprise each straddle contained in the multiple option in the 
manner prescribed in subparagraph (3) of this paragraph; or
    (ii) It is clear from the facts and circumstances that the lapsed 
option was part of a straddle. See example (6) of paragraph (f) of this 
section. A multiple option to which this subdivision applies may not be 
regarded as consisting of a number of straddles which exceeds the lesser 
of the options to sell or the options to buy as the case may be. For 
example, if a multiple option of five puts and four calls is granted it 
may not be regarded as consisting of more than four straddles, although 
the particular facts and circumstances could dictate that the option 
consists of less than four straddles.
    (3) The identification required under subparagraph (2)(i) of this 
paragraph shall be made by the grantor indicating in his records, to the 
extent feasible, the individual serial number of, or other 
characteristic symbol imprinted

[[Page 374]]

upon, each of the two individual options which comprise the straddle, or 
by adopting any other method of identification satisfactory to the 
Commissioner. Such identification must be made before the expiration of 
the 15th day after the day on which the multiple option is granted. The 
preceding sentence shall apply only with respect to multiple options 
granted after January 24, 1972. In computing the 15-day period 
prescribed by this paragraph, the first day of such period is the day 
following the day on which the multiple option is granted.
    (d) Allocation of premium. The allocation of a premium received for 
a straddle or a multiple option between or among the component options 
thereof shall be made on the basis of the relative market value of such 
component options at the time of their issuance or on any other 
reasonable and consistently applied basis which is acceptable to the 
Commissioner.
    (e) Effective date--(1) In general. This section, relating to 
special rules for grantors of straddles, shall apply only with respect 
to straddle transactions entered into after January 25, 1965, and before 
September 2, 1976.
    (2) Special rule. For a special rule with respect to the 
identification of a straddle granted as part of a multiple option, see 
paragraph (c).
    (f) Illustrations. The application of section 1234(c) and this 
section may be illustrated by the following examples:

    Example 1. On February 1, 1971, taxpayer A, who files his income tax 
returns on a calendar year basis, issues a straddle for 100 shares of X 
Corporation stock and receives a premium of $1,000. The options 
comprising the straddle were to expire on August 10, 1971. A has 
allocated $450 (45 percent of $1,000) of the premium to the put and $550 
(55 percent of $1,000) to the call. On March 1, 1971, B, the holder of 
the put, exercises his option. C, the holder of the call, fails to 
exercise his option prior to its expiration. As a result of C's failure 
to exercise his option, A realizes a short-term capital gain of $550 
(that part of the premium allocated to the call) on August 10, 1971.
    Example 2. Assume the same facts as in example (1), except that C 
exercises his call on March 1, 1971, and B fails to exercise his put 
prior to its expiration. As a result of B's failure to exercise his 
option, A realizes a short-term capital gain of $450 (that part of the 
premium allocated to the put) on August 10, 1971.
    Example 3. Assume the same facts as in example (1), except that both 
B and C fail to exercise their respective options. As a result of the 
failure of B and C to exercise their options, A realizes short-term 
capital gains of $1,000 (the premium for granting the straddle) on 
August 10, 1971.
    Example 4. On March 1, 1971, taxpayer D issues a multiple option 
containing five puts and five calls. Each put and each call is for the 
same number of shares of Y Corporation stock, at the same price, and for 
the same period of time. Thus, each of the puts and calls is deemed to 
be a component part of a straddle. The puts and calls comprising the 
multiple option were to expire on September 10, 1971. All of the puts 
are exercised, and all of the calls lapse. As a result of the lapse of 
the calls, D realizes a short-term capital gain on September 10, 1971, 
in the amount of that part of the premium for the multiple option which 
is allocable to all of the calls.
    Example 5. Assume the same facts as in example (4) except that one 
of the puts and two of the calls lapse and the remaining puts and calls 
are exercised. As a result, on September 10, 1971, D realizes a short-
term capital gain in the amount of that part of the premium for the 
multiple option which is allocable to both of the lapsed calls and the 
lapsed put.
    Example 6. On March 1, 1971, taxpayer E issues a multiple option 
containing five puts and four calls. Each put and call is for the same 
number of shares of Y Corporation stock at the same price and for the 
same period of time, E does not identify the puts and calls as parts of 
straddles in the manner prescribed in paragraph (c)(3) of this section. 
However, because the terms of all of the puts and all of the calls are 
identical four of the puts and four of the calls are deemed to be a 
component part of a straddle. The puts and calls comprising the multiple 
option were to expire on September 10, 1971. Four of the puts are 
exercised and the four calls and one of the puts lapse. As a result, on 
September 10, 1971, E realizes short-term capital gain in the amount of 
that part of the premium for the multiple option which is allocable to 
the four lapsed calls and realizes ordinary income in the amount of that 
part of such premium which is allocable to the lapsed put. If E had 
identified four of the puts and four of the calls as constituting parts 
of straddles in the manner prescribed in paragraph (c)(3) of this 
section and the put that lapsed constituted part of a straddle, then the 
gain on the lapse of the put would also be short-term capital gain.
    Example 7. Assume the same facts as in example (6) except that two 
of the puts are for Y Corporation stock at a price which is greater than 
that of the other puts and the other calls and that two of the calls 
expire on October 10, 1971. Additionally, assume

[[Page 375]]

that the put which lapses is at the lower price. The two puts offering 
the Y Corporation stock at the greater price and the two calls with the 
later expiration date cannot be deemed to be component parts of a 
straddle. Thus, only two of the puts and two of the calls are deemed to 
be a component part of a straddle. As a result, E realizes income as 
follows:
    (i) On September 10, 1971, short-term capital gain in the amount of 
that part of the premium for the multiple option which is allocable to 
the two lapsed calls with the expiration date of September 10, 1971, and 
ordinary income in the amount of that part of such premium which is 
allocable to the lapsed put. If E had identified two of the puts at the 
lower price and the two calls with the expiration date of September 10, 
1971, as constituting parts of straddles in the manner prescribed in 
paragraph (c)(3) of this section and if the put that lapsed was one of 
those identified as constituting a part of a straddle, then the gain on 
the lapse of that put would also be short-term capital gain.
    (ii) On October 10, 1971, ordinary income in the amount of that part 
of the premium for the multiple option which is allocable to the lapsed 
calls with an expiration date of October 10, 1971.

[T.D. 7152, 36 FR 24801, Dec. 23, 1971, as amended by T.D. 7210, 37 FR 
20688, Oct. 3, 1972; T.D. 7652, 44 FR 62282, Oct. 30, 1979; 44 FR 67657, 
Nov. 27, 1979; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec.  1.1234-3  Special rules for the treatment of grantors 
of certain options granted after September 1, 1976.

    (a) In general. In the case of the grantor of an option (including 
an option granted as part of a straddle or multiple option), gain of 
loss from any closing transaction with respect to, and gain on the lapse 
of, an option in property shall be treated as a gain or loss from the 
sale or exchange of a capital asset held not more than 1 year. (6 months 
for taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977).
    (b) Definitions. The following definitions apply for purposes of 
this section.
    (1) The term closing transaction means any termination of a 
grantor's obligation under an option to buy property (a call) or an 
option to sell property (a put) other than through the exercise or lapse 
of the option. For example, the grantor of a call may effectively 
terminate his obligation under the option by either:
    (i) Repurchasing the option from the holder or
    (ii) Purchasing from an options exchange a call with terms identical 
to the original option granted and designating the purchase as a closing 
transaction.

A put or call purchased to make a closing transaction is identical as to 
striking price and expiration date. Such put or call need not match the 
granted option in time of creation, date of acquisition, cost of the 
entire option or units therein, or number of units subject to the 
option. If such put or call terminates only part of a grantor's 
obligation under the granted option, a closing transaction is made as to 
that part.
    (2) The term property means stocks and securities (including stocks 
and securities dealt with on a when issued basis), commodities, and 
commodity futures.
    (3) The term grantor means the writer or issuer of an option.
    (4) The term straddle means a simultaneously granted combination of 
an option to buy and an option to sell the same quantity of property at 
the same price during the same period of time.
    (5) The term multiple option means a simultaneously granted 
combination of an option to buy plus an option to sell plus one or more 
additional options to buy or sell property.
    (c) Nonapplicability to broker-dealers. The provisions of this 
section do not apply to any option granted in the ordinary course of the 
taxpayer's trade or business of granting options. However, the 
provisions of this section do apply to:
    (1) Gain from any closing transaction with respect to an option and 
gain on lapse of an option if gain on the sale or exchange of the option 
would be considered capital gain by a dealer in securities under section 
1236(a) and the regulations thereunder, and
    (2) Loss from any closing transaction with respect to an option if 
loss on the sale or exchange of the option would not be considered 
ordinary loss by a dealer in securities under section 1236(b) and the 
regulations thereunder.

The preceding sentence shall be applied with respect to dealers in 
property (as

[[Page 376]]

defined in paragraph (b)(2) of this section) and without regard to the 
limitation of the applicability of section 1236 to dealers in 
securities.
    (d) Nonapplicability to compensatory options. Section 1234 does not 
apply to options to purchase stock or other property which are issued as 
compensation for services, as described in sections 61, 83, and 421 and 
the regulations thereunder.
    (e) Premium allocation for simultaneously granted options. The 
allocation of a premium received for a straddle or multiple option 
between or among the component options thereof shall be made on the 
basis of the relative market value of the component options at the time 
of their issuance or on any other reasonable and consistently applied 
basis which is acceptable to the Commissioner.
    (f) Effective date. This section, relating to special rules for the 
treatment of grantors of certain options, shall apply to options granted 
after September 1, 1976.

[T.D. 7652, 44 FR 62282, Oct. 30, 1979; 44 FR 67657, Nov. 27, 1979]



Sec.  1.1234-4  Hedging transactions.

    The character of gain or loss on an acquired or a written option 
that is (or is identified as being) part of a hedging transaction is 
determined under the rules of Sec.  1.1221-2.

[T.D. 8555, 59 FR 36367, July 18, 1994]



Sec.  1.1235-1  Sale or exchange of patents.

    (a) General rule. Section 1235 provides that a transfer (other than 
by gift, inheritance, or devise) of all substantial rights to a patent, 
or of an undivided interest in all such rights to a patent, by a holder 
to a person other than a related person constitutes the sale or exchange 
of a capital asset held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977), 
whether or not payments therefor are:
    (1) Payable periodically over a period generally coterminous with 
the transferee's use of the patent, or
    (2) Contingent on the productivity, use, or disposition of the 
property transferred.
    (b) Scope of section 1235. If a transfer is not one described in 
paragraph (a) of this section, section 1235 shall be disregarded in 
determining whether or not such transfer is the sale or exchange of a 
capital asset. For example, a transfer by a person other than a holder 
or a transfer by a holder to a related person is not governed by section 
1235. The tax consequences of such transfers shall be determined under 
other provisions of the internal revenue laws.
    (c) Special rules--(1) Payments for infringement. If section 1235 
applies to the transfer of all substantial rights to a patent (or an 
undivided interest therein), amounts received in settlement of, or as 
the award of damages in, a suit for compensatory damages for 
infringement of the patent shall be considered payments attributable to 
a transfer to which section 1235 applies to the extent that such amounts 
relate to the interest transferred. For taxable years beginning before 
January 1, 1964, see section 1304, as in effect before such date, and 
Sec.  1.1304A-1 for treatment of compensatory damages for patent 
infringement.
    (2) Payments to an employee. Payments received by an employee as 
compensation for services rendered as an employee under an employment 
contract requiring the employee to transfer to the employer the rights 
to any invention by such employee are not attributable to a transfer to 
which section 1235 applies. However, whether payments received by an 
employee from his employer (under an employment contract or otherwise) 
are attributable to the transfer by the employee of all substantial 
rights to a patent (or an undivided interest therein) or are 
compensation for services rendered the employer by the employee is a 
question of fact. In determining which is the case, consideration shall 
be given not only to all the facts and circumstances of the employment 
relationship but also to whether the amount of such payments depends 
upon the production, sale, or use by, or the value to, the employer of 
the patent rights transferred by the employee. If it is determined that 
payments are attributable to the transfer of patent rights, and all 
other requirements under section 1235 are met, such payments shall be 
treated as

[[Page 377]]

proceeds derived from the sale of a patent.
    (3) Successive transfers. The applicability of section 1235 to 
transfers of undivided interest in patents, or to successive transfers 
of such rights, shall be determined separately with respect to each 
transfer. For example, X, who is a holder, and Y, who is not a holder, 
transfer their respective two-thirds and one-third undivided interests 
in a patent to Z. Assume the transfer by X qualifies under section 1235 
and that X in a later transfer acquires all the rights with respect to 
Y's interest, including the rights to payments from Z. One-third of all 
the payments thereafter received by X from Z are not attributable to a 
transfer to which section 1235 applies.
    (d) Payor's treatment of payments in a transfer under section 1235. 
Payments made by the transferee of patent rights pursuant to a transfer 
satisfying the requirements of section 1235 are payments of the purchase 
price for the patent rights and are not the payment of royalties.
    (e) Effective date. Amounts received or accrued, and payments made 
or accrued, during any taxable year beginning after December 31, 1953 
and ending after August 16, 1954, pursuant to a transfer satisfying the 
requirements of section 1235, whether such transfer occurred in a 
taxable year to which the Internal Revenue Code of 1954 applies, or in a 
year prior thereto, are subject to the provisions of section 1235.
    (f) Nonresident aliens. For the special rule relating to nonresident 
aliens who have gains arising from a transfer to which section 1235 
applies, see section 871 and the regulations thereunder. For withholding 
of tax from income of nonresident aliens, see section 1441 and the 
regulations thereunder.

[T.D. 6500, 25 FR 12014, Nov. 26, 1960, as amended by T.D. 6885, 31 FR 
7803, June 2, 1966; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec.  1.1235-2  Definition of terms.

    For the purposes of section 1235 and Sec.  1.1235-1:
    (a) Patent. The term patent means a patent granted under the 
provisions of title 35 of the United States Code, or any foreign patent 
granting rights generally similar to those under a United States patent. 
It is not necessary that the patent or patent application for the 
invention be in existence if the requirements of section 1235 are 
otherwise met.
    (b) All substantial rights to a patent. (1) The term all substantial 
rights to a patent means all rights (whether or not then held by the 
grantor) which are of value at the time the rights to the patent (or an 
undivided interest therein) are transferred. The term all substantial 
rights to a patent does not include a grant of rights to a patent:
    (i) Which is limited geographically within the country of issuance;
    (ii) Which is limited in duration by the terms of the agreement to a 
period less than the remaining life of the patent;
    (iii) Which grants rights to the grantee, in fields of use within 
trades or industries, which are less than all the rights covered by the 
patent, which exist and have value at the time of the grant; or
    (iv) Which grants to the grantee less than all the claims or 
inventions covered by the patent which exist and have value at the time 
of the grant.

The circumstances of the whole transaction, rather than the particular 
terminology used in the instrument of transfer, shall be considered in 
determining whether or not all substantial rights to a patent are 
transferred in a transaction.
    (2) Rights which are not considered substantial for purposes of 
section 1235 may be retained by the holder. Examples of such rights are:
    (i) The retention by the transferor of legal title for the purpose 
of securing performance or payment by the transferee in a transaction 
involving transfer of an exclusive license to manufacture, use, and sell 
for the life of the patent;
    (ii) The retention by the transferor of rights in the property which 
are not inconsistent with the passage of ownership, such as the 
retention of a security interest (such as a vendor's lien), or a 
reservation in the nature of a condition subsequent (such as a provision 
for forfeiture on account of nonperformance).
    (3) Examples of rights which may or may not be substantial, 
depending

[[Page 378]]

upon the circumstances of the whole transaction in which rights to a 
patent are transferred, are:
    (i) The retention by the transferor of an absolute right to prohibit 
sublicensing or subassignment by the transferee;
    (ii) The failure to convey to the transferee the right to use or to 
sell the patent property.
    (4) The retention of a right to terminate the transfer at will is 
the retention of a substantial right for the purposes of section 1235.
    (c) Undivided interest. A person owns an undivided interest in all 
substantial rights to a patent when he owns the same fractional share of 
each and every substantial right to the patent. It does not include, for 
example, a right to the income from a patent, or a license limited 
geographically, or a license which covers some, but not all, of the 
valuable claims or uses covered by the patent. A transfer limited in 
duration by the terms of the instrument to a period less than the 
remaining life of the patent is not a transfer of an undivided interest 
in all substantial rights to a patent.
    (d) Holder. (1) The term holder means any individual:
    (i) Whose efforts created the patent property and who would qualify 
as the original and first inventor, or joint inventor, within the 
meaning of title 35 U.S.C., or
    (ii) Who has acquired his interest in the patent property in 
exchange for a consideration paid to the inventor in money or money's 
worth prior to the actual reduction of the invention to practice (see 
paragraph (e) of this section), provided that such individual was 
neither the employer of the inventor nor related to him (see paragraph 
(f) of this section). The requirement that such individual is neither 
the employer of the inventor nor related to him must be satisfied at the 
time when the substantive rights as to the interest to be acquired are 
determined, and at the time when the consideration in money or money's 
worth to be paid is definitely fixed. For example, if prior to the 
actual reduction to practice of an invention an individual who is 
neither the employer of the inventor nor related to him agrees to pay 
the inventor a sum of money definitely fixed as to amount in return for 
an undivided one-half interest in rights to a patent and at a later 
date, when such individual has become the employer of the inventor, he 
pays the definitely fixed sum of money pursuant to the earlier 
agreement, such individual will not be denied the status of a holder 
because of such employment relationship.
    (2) Although a partnership cannot be a holder, each member of a 
partnership who is an individual may qualify as a holder as to his share 
of a patent owned by the partnership. For example, if an inventor who is 
a member of a partnership composed solely of individuals uses 
partnership property in the development of his invention with the 
understanding that the patent when issued will become partnership 
property, each of the inventor's partners during this period would 
qualify as a holder. If, in this example, the partnership were not 
composed solely of individuals, nevertheless, each of the individual 
partners' distributive shares of income attributable to the transfer of 
all substantial rights to the patent or an undivided interest therein, 
would be considered proceeds from the sale or exchange of a capital 
asset held for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977).
    (3) An individual may qualify as a holder whether or not he is in 
the business of making inventions or in the business of buying and 
selling patents.
    (e) Actual reduction to practice. For the purposes of determining 
whether an individual is a holder under paragraph (d) of this section, 
the term actual reduction to practice has the same meaning as it does 
under section 102(g) of title 35 of the United States Code. Generally, 
an invention is reduced to actual practice when it has been tested and 
operated successfully under operating conditions. This may occur either 
before or after application for a patent but cannot occur later than the 
earliest time that commercial exploitation of the invention occurs.
    (f) Related person. (1) The term related person means one whose 
relationship to another person at the time of the transfer is described 
in section 267(b), except that the term does not include a

[[Page 379]]

brother or sister, whether of the whole or the half blood. Thus, if a 
holder transfers all his substantial rights to a patent to his brother 
or sister, or both, such transfer is not to a related person.
    (2) If, prior to September 3, 1958, a holder transferred all his 
substantial rights to a patent to a corporation in which he owned more 
than 50 percent in value of the outstanding stock, he is considered as 
having transferred such rights to a related person for the purpose of 
section 1235. On the other hand, if a holder, prior to September 3, 
1958, transferred all his substantial rights to a patent to a 
corporation in which he owned 50 percent or less in value of the 
outstanding stock and his brother owned the remaining stock, he is not 
considered as having transferred such rights to a related person since 
the brother relationship is to be disregarded for purposes of section 
1235.
    (3) If, subsequent to September 2, 1958, a holder transfers all his 
substantial rights to a patent to a corporation in which he owns 25 
percent or more in value of the outstanding stock, he is considered as 
transferring such rights to a related person for the purpose of section 
1235. On the other hand if a holder, subsequent to September 2, 1958, 
transfers all his substantial rights to a patent to a corporation in 
which he owns less than 25 percent in value of the outstanding stock and 
his brother owns the remaining stock, he is not considered as 
transferring such rights to a related person since the brother 
relationship is to be disregarded for purposes of section 1235.
    (4) If a relationship described in section 267(b) exists 
independently of family status, the brother-sister exception, described 
in subparagraphs (1), (2), and (3) of this paragraph, does not apply. 
Thus, if a holder transfers all his substantial rights to a patent to 
the fiduciary of a trust of which the holder is the grantor, the holder 
and the fiduciary are related persons for purposes of section 1235(d). 
(See section 267(b)(4).) The transfer, therefore, would not qualify 
under section 1235(a). This result obtains whether or not the fiduciary 
is the brother or sister of the holder since the disqualifying 
relationship exists because of the grantor-fiduciary status and not 
because of family status.

[T.D. 6500, 25 FR 12014, Nov. 26, 1960, as amended by T.D. 6852, 30 FR 
12730, Oct. 6, 1965; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec.  1.1236-1  Dealers in securities.

    (a) Capital gains. Section 1236(a) provides that gain realized by a 
dealer in securities from the sale or exchange of a security (as defined 
in paragraph (c) of this section) shall not be considered as gain from 
the sale or exchange of a capital asset unless:
    (1) The security is, before the expiration of the thirtieth day 
after the date of its acquisition, clearly identified in the dealer's 
records as a security held for investment or, if acquired before October 
20, 1951, was so identified before November 20, 1951; and
    (2) The security is not held by the dealer primarily for sale to 
customers in the ordinary course of his trade or business at any time 
after the identification referred to in subparagraph (1) of this 
paragraph has been made.

Unless both of these requirements are met, the gain is considered as 
gain from the sale of assets held by the dealer primarily for sale to 
customers in the course of his business.
    (b) Ordinary losses. Section 1236(b) provides that a loss sustained 
by a dealer in securities from the sale or exchange of a security shall 
not be considered a loss from the sale or exchange of property which is 
not a capital asset if at any time after November 19, 1951, the security 
has been clearly identified in the dealer's records as a security held 
for investment. Once a security has been identified after November 19, 
1951, as being held by the dealer for investment, it shall retain that 
character for purposes of determining loss on its ultimate disposition, 
even though at the time of its disposition the dealer holds it primarily 
for sale to his customers in the ordinary course of his business. 
However, section 1236 has no application to the extent that section 
582(c) applies to losses of banks.
    (c) Definitions--(1) Security. For the purposes of this section, the 
term security means any share of stock in any corporation, any 
certificate of stock or interest in any corporation, any note, bond, 
debenture, or other evidence of

[[Page 380]]

indebtedness, or any evidence of any interest in, or right to subscribe 
to or purchase, any of the foregoing.
    (2) Dealer in securities. For definition of a dealer in securities, 
see the regulations under section 471.
    (d) Identification of security in dealer's records. (1) A security 
is clearly identified in the dealer's records as a security held for 
investment when there is an accounting separation of the security from 
other securities, as by making appropriate entries in the dealer's books 
of account to distinguish the security from inventories and to designate 
it as an investment and by (i) indicating with such entries, to the 
extent feasible, the individual serial number of, or other 
characteristic symbol imprinted upon, the individual security, or (ii) 
adopting any other method of identification satisfactory to the 
Commissioner.
    (2) In computing the 30-day period prescribed by section 1236(a), 
the first day of the period is the day following the date of 
acquisition. Thus, in the case of a security acquired on March 18, 1957, 
the 30-day period expires at midnight on April 17, 1957.

[T.D. 6500, 25 FR 12015, Nov. 26, 1960, as amended by T.D. 6726, 29 FR 
5667, Apr. 29, 1964]



Sec.  1.1237-1  Real property subdivided for sale.

    (a) General rule--(1) Introductory. This section provides a special 
rule for determining whether the taxpayer holds real property primarily 
for sale to customers in the ordinary course of his business under 
section 1221(1). This rule is to permit taxpayers qualifying under it to 
sell real estate from a single tract held for investment without the 
income being treated as ordinary income merely because of subdividing 
the tract or of active efforts to sell it. The rule is not applicable to 
dealers in real estate or to corporations, except a corporation making 
such sales in a taxable year beginning after December 3l, 1954, if such 
corporation qualifies under the provisions of paragraph (c)(5)(iv) of 
this section.
    (2) When subdividing and selling activities are to be disregarded. 
When its conditions are met, section 1237 provides that if there is no 
other substantial evidence that a taxpayer holds real estate primarily 
for sale to customers in the ordinary course of his business, he shall 
not be considered a real estate dealer holding it primarily for sale 
merely because he has (i) subdivided the tract into lots (or parcels) 
and (ii) engaged in advertising, promotion, selling activities or the 
use of sales agents in connection with the sale of lots in such 
subdivision. Such subdividing and selling activities shall be 
disregarded in determining the purpose for which the taxpayer held real 
property sold from a subdivision whenever it is the only substantial 
evidence indicating that the taxpayer has ever held the real property 
sold primarily for sale to customers in the ordinary course of his 
business.
    (3) When subdividing and selling activities are to be taken into 
account. When other substantial evidence tends to show that the taxpayer 
held real property for sale to customers in the ordinary course of his 
business, his activities in connection with the subdivision and sale of 
the property sold shall be taken into account in determining the purpose 
for which the taxpayer held both the subdivided property and any other 
real property. For example, such other evidence may consist of the 
taxpayer's selling activities in connection with other property in prior 
years during which he was engaged in subdividing or selling activities 
with respect to the subdivided tract, his intention in prior years (or 
at the time of acquiring the property subdivided) to hold the tract 
primarily for sale in his business, his subdivision of other tracts in 
the same year, his holding other real property for sale to customers in 
the same year, or his construction of a permanent real estate office 
which he could use in selling other real property. On the other hand, if 
the only evidence of the taxpayer's purpose in holding real property 
consisted of not more than one of the following, in the year in 
question, such fact would not be considered substantial other evidence:
    (i) Holding a real estate dealer's license;
    (ii) Selling other real property which was clearly investment 
property;

[[Page 381]]

    (iii) Acting as a salesman for a real estate dealer, but without any 
financial interest in the business; or
    (iv) Mere ownership of other vacant real property without engaging 
in any selling activity whatsoever with respect to it.

If more than one of the above exists, the circumstances may or may not 
constitute substantial evidence that the taxpayer held real property for 
sale in his business, depending upon the particular facts in each case.
    (4) Section 1237 not exclusive. (i) The rule in section 1237 is not 
exclusive in its application. Section 1237 has no application in 
determining whether or not real property is held by a taxpayer primarily 
for sale in his business if any requirement under the section is not 
met. Also, even though the conditions of section 1237 are met, the rules 
of section 1237 are not applicable if without regard to section 1237 the 
real property sold would not have been considered real property held 
primarily for sale to customers in the ordinary course of his business. 
Thus, the district director may at all times conclude from convincing 
evidence that the taxpayer held the real property solely as an 
investment. Furthermore, whether or not the conditions of section 1237 
are met, the section has no application to losses realized upon the sale 
of realty from subdivided property.
    (ii) If, owing solely to the application of section 1237, the real 
property sold is deemed not to have been held primarily for sale in the 
ordinary course of business, any gain realized upon such sale shall be 
treated as ordinary income to the extent provided in section 1237(b) (1) 
and (2) and paragraph (e) of this section. Any additional gain realized 
upon the sale shall be treated as gain arising from the sale of a 
capital asset or, if the circumstances so indicate, as gain arising from 
the sale of real property used in the trade or business as defined in 
section 1231 (b)(1). For the relationship between sections 1237 and 
1231, see paragraph (f) of this section.
    (5) Principal conditions of qualification. Before section 1237 
applies, the taxpayer must meet three basic conditions, more fully 
explained later: He cannot have held any part of the tract at any time 
previously for sale in the ordinary course of his business, nor in the 
year of sale held any other real estate for sale to customers; he cannot 
make substantial improvements on the tract which increase the value of 
the lot sold substantially; and he must have owned the property 5 years, 
unless he inherited it. However, the taxpayer may make certain 
improvements if they are necessary to make the property marketable if he 
elects neither to add their cost to the basis of the property, or of any 
other property, nor to deduct the cost as an expense, and he has held 
the property at least 10 years. If the requirements of section 1237 are 
met, gain (but not more than 5 percent of the selling price of each lot) 
shall be treated as ordinary income in and after the year in which the 
sixth lot or parcel is sold.
    (b) Disqualification arising from holding real property primarily 
for sale--(1) General rule. Section 1237 does not apply to any 
transaction if the taxpayer either:
    (i) Held the lot sold (or the tract of which it was a part) 
primarily for sale in the ordinary course of his business in a prior 
year, or
    (ii) Holds other real property primarily for sale in the ordinary 
course of his business in the same year in which such lot is sold.

Where either of these elements is present, section 1237 shall be 
disregarded in determining the proper treatment of any gain arising from 
such sale.
    (2) Method of applying general rule. For purposes of this paragraph, 
in determining whether the lot sold was held primarily for sale in the 
ordinary course of business in a prior year, the principles of section 
1237 shall be applied, whether or not section 1237 was effective for 
such prior year, if the sale of the lot occurs after December 31, 1953, 
or, in the case of a corporation meeting the requirements of paragraph 
(c)(5)(iv) of this section, if the sale of the lot occurs in a taxable 
year beginning after December 31, 1954. Whether, on the other hand, the 
taxpayer holds other real property for sale in the ordinary course of 
his business in the same

[[Page 382]]

year such lot was sold shall be determined without regard to the 
application of section 1237 to such other real property.
    (3) Attribution rules with respect to the holding of property. The 
taxpayer is considered as holding property which he owns individually, 
jointly, or as a member of a partnership. He is not generally considered 
as holding property owned by members of his family, an estate or trust, 
or a corporation. See, however, paragraph (c)(5) (iv)(c) of this section 
for an exception to this rule. The purpose for which a prior owner held 
the lot or tract, or his activities, are immaterial except to the extent 
they indicate the purpose for which the taxpayer has held the lot or 
tract. See paragraph (d) of this section for rules relating to the 
determination of the period for which the property is held. The 
principles of this subparagraph may be illustrated by the following 
example:

    Example: A dealer in real property held a tract of land for sale to 
customers in the ordinary course of his business for 5 years. He then 
made a gift of it to his son. As a result of the operation of section 
1223(2) the son will have held the property for the period of time 
required by section 1237. However, he will not qualify for the benefits 
of section 1237 because, there being no evidence to the contrary, the 
circumstances involved establish that the son holds the property for 
sale to customers, as did his father.

    (c) Disqualification arising from substantial improvements--(1) 
General rule. Section 1237 will not apply if the taxpayer or certain 
others make improvements on the tract which are substantial and which 
substantially increase the value of the lot sold. Certain improvements 
are not substantial within the meaning of section 1237(a)(2) if they are 
necessary to make the lot marketable at the prevailing local price and 
meet the other conditions of section 1237(b)(3). See subparagraph (5) of 
this paragraph.
    (2) Improvements made or deemed to be made by the taxpayer. Certain 
improvements made by the taxpayer or made under a contract of sale 
between the taxpayer and the buyer make section 1237 inapplicable.
    (i) For the purposes of section 1237 (a)(2) the taxpayer is deemed 
to have made any improvements on the tract while he held it which are 
made by:
    (a) The taxpayer's whole or half brothers and sisters, spouse, 
ancestors and lineal descendants.
    (b) A corporation controlled by the taxpayer. A corporation is 
controlled by the taxpayer if he controls, as the result of direct 
ownership, constructive ownership, or otherwise, more than 50 percent of 
the corporation's voting stock.
    (c) A partnership of which the taxpayer was a member at the time the 
improvements were made.
    (d) A lessee if the improvement takes the place of a payment of 
rental income. See section 109 and the regulations thereunder.
    (e) A Federal, State, or local government, or political subdivision 
thereof, if the improvement results in an increase in the taxpayer's 
basis for the property, as it would, for example, from a special tax 
assessment for paving streets.
    (ii) The principles of subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example: A held a tract of land for 3 years during which he made 
substantial improvements thereon which substantially enhanced the value 
of every lot on the tract. A then made a gift of the tract to his son. 
The son made no further improvements on the tract but held it for 3 
years and then sold several lots therefrom. The son is not entitled to 
the benefits of section 1237 since under section 1237(a)(2) he is deemed 
to have made the substantial improvements made by his father, and under 
section 1223(2) he is treated as having held the property for the period 
during which his father held it. Thus, the disqualifying improvements 
are deemed to have been made by the son while the tract was held by him. 
See paragraph (d) of this section for rules relating to the 
determination of the period for which the property is held.

    (iii) The taxpayer is also charged with making any improvements made 
pursuant to a contract of sale entered into between the taxpayer and the 
buyer. Therefore, the buyer, as well as the taxpayer, may make 
improvements which prevent the application of section 1237.
    (a) If a contract of sale obligates either the taxpayer or the buyer 
to make a substantial improvement which would substantially increase the 
value of the lot, the taxpayer may not claim the application of section 
1237 unless

[[Page 383]]

the obligation to improve the lot ceases (for any reason other than that 
the improvement has been made) before or within the period, prescribed 
by section 6511, within which the taxpayer may file a claim for credit 
or refund of an overpayment of his tax on the gain from the sale of the 
lot. The following example illustrates this rule:

    Example: In 1956, A sells several lots from a tract he has 
subdivided for sale. Section 1237 would apply to the sales of these lots 
except that in the contract of sale, A agreed to install sewers, hard 
surface roads, and other utilities which would increase the value of the 
lots substantially. If in 1957, instead of requiring the improvements, 
the buyer releases A from this obligation, A may then claim the 
application of section 1237 to the sale of lots in 1956 in computing his 
income tax for 1956, since the period of limitations in which A may file 
a claim for credit or refund of an overpayment of his 1956 income tax 
has not expired.

    (b) An improvement is made pursuant to a contract if the contract 
imposes an obligation on either party to make the improvement, but not 
if the contract merely places restrictions on the improvements, if any, 
either party may make. The following example illustrates this rule:

    Example: B sells several lots from a tract which he has subdivided. 
Each contract of sale prohibits the purchaser from building any 
structure on his lot except a personal residence costing $15,000 or 
more. Even if the purchasers build such residences, that does not 
preclude B from applying section 1237 to the sales of such lots, since 
the contracts did not obligate the purchasers to make any improvements.

    (iv) Improvements made by a bona fide lessee (other than as rent) or 
by others not described in section 1237(a) (2) do not preclude the use 
of section 1237.
    (3) When improvements substantially enhance the value of the lot 
sold. Before a substantial improvement will preclude the use of section 
1237, it must substantially enhance the value of the lot sold.
    (i) The increase in value to be considered is only the increase 
attributable to the improvement or improvements. Other changes in the 
market price of the lot, not arising from improvements made by the 
taxpayer, shall be disregarded. The difference between the value of the 
lot, including improvements, when the improvement has been completed and 
an appraisal of its value if unimproved at that time, will disclose the 
value added by the improvements.
    (ii) Whether improvements have substantially increased the value of 
a lot depends upon the circumstances in each case. If improvements 
increase the value of a lot by 10 percent or less, such increase will 
not be considered as substantial, but if the value of the lot is 
increased by more than 10 percent, then all relevant factors must be 
considered to determine whether, under such circumstances, the increase 
is substantial.
    (iii) Improvement may increase the value of some lots in a tract 
without equally affecting other lots in the same tract. Only the lots 
whose value was substantially increased are ineligible for application 
of the rule established by section 1237.
    (4) When an improvement is substantial. To prevent the application 
of section 1237, the improvement itself must be substantial in 
character. Among the improvements considered substantial are shopping 
centers, other commercial or residential buildings, and the installation 
of hard surface roads or utilities such as sewers, water, gas, or 
electric lines. On the other hand a temporary structure used as a field 
office, surveying, filling, draining, leveling and clearing operations, 
and the construction of minimum all-weather access roads, including 
gravel roads where required by the climate, are not substantial 
improvements.
    (5) Special rules relating to substantial improvements. Under 
certain conditions a taxpayer, including a corporation to which 
subdivision (iv) of this subparagraph applies, may obtain the benefits 
of section 1237 whether or not substantial improvements have been made. 
In addition, an individual taxpayer may, under certain circumstances 
elect to have substantial improvements treated as necessary and not 
substantial.
    (i) When an improvement is not considered substantial. An 
improvement will not be considered substantial if all of the following 
conditions are met:

[[Page 384]]

    (a) The taxpayer has held the property for 10 years. The full 10-
year period must elapse, whether or not the taxpayer inherited the 
property. Although the taxpayer must hold the property 10 years, he need 
not hold it for 10 years after subdividing it. See paragraph (d) of this 
section for rules relating to the determination of the period for which 
the property is held.
    (b) The improvement consists of the building or installation of 
water, sewer, or drainage facilities (either surface, sub-surface, or 
both) or roads, including hard surface roads, curbs, and gutters.
    (c) The district director with whom the taxpayer must file his 
return is satisfied that, without such improvement, the lot sold would 
not have brought the prevailing local price for similar building sites.
    (d) The taxpayer elects, as provided in subdivision (iii) of this 
subparagraph, not to adjust the basis of the lot sold or any other 
property held by him for any part of the cost of such improvement 
attributable to such lot and not to deduct any part of such cost as an 
expense.
    (ii) Meaning of similar building site. A similar building site is 
any real property in the immediate vicinity whose size, terrain, and 
other characteristics are comparable to the taxpayer's property. For the 
purpose of determining whether a tract is marketable at the prevailing 
local price for similar building sites, the taxpayer shall furnish the 
district director with sufficient evidence to enable him to compare (a) 
the value of the taxpayer's property in an unimproved state with (b) the 
amount for which similar building sites, improved by the installation of 
water, sewer, or drainage facilities or roads, have recently been sold, 
reduced by the present cost of such improvements. Such comparison may be 
made and expressed in terms of dollars per square foot, dollars per 
acre, or dollars per front foot, or in any other suitable terms 
depending upon the practice generally followed by real estate dealers in 
the taxpayer's locality. The taxpayer shall also furnish evidence, where 
possible, of the best bona fide offer received for the tract or a lot 
thereof just before making the improvement, to assist the district 
director in determining the value of the tract or lot if it had been 
sold in its unimproved state. The operation of this subdivision and 
subdivision (i) of this subparagraph may be illustrated by the following 
examples:

    Example 1. A has been offered $500 per acre for a tract without 
roads, water, or sewer facilities which he has owned for 15 years. The 
adjacent tract has been subdivided and improved with water facilities 
and hard surface roads, and has sold for $4,000 per acre. The estimated 
cost of roads and water facilities on the adjacent tract is $2,500 per 
acre. The prevailing local price for similar building sites in the 
vicinity would be $1,500 per acre (i.e., $4,000 less $2,500). If A 
installed roads and water facilities at a cost of $2,500 per acre, his 
tract would sell for approximately $4,000 per acre. Under section 
1237(b)(3) the installation of roads and water facilities does not 
constitute a substantial improvement if A elects to disregard the cost 
of such improvements ($2,500 per acre) in computing his cost or other 
basis for the lots sold from the tract, and in computing his basis for 
any other property owned by him.
    Example 2. Assume the same facts as in example (1) of this 
subdivision, except that A can obtain $1,600 per acre for his property 
without improvements. The installation of any substantial improvements 
would not constitute a necessary improvement under section 1237(b)(3), 
since the prevailing local price could have been obtained without any 
improvement.
    Example 3. Assume the same facts as in example (1) of this 
subdivision, except that the adjacent tract has also been improved with 
sewer facilities, the present cost of which is $1,200 per acre. The 
installation of the substantial improvements would not constitute a 
necessary improvement under section 1237(b)(3) on A's part, since the 
prevailing local price ($4,000 less the sum of $1,200 plus $2,500, or 
$300) could have been obtained by A without any improvement.

    (iii) Manner of making election. The election required by section 
1237(b) (3)(C) shall be made as follows:
    (a) The taxpayer shall submit:
    (1) A plat showing the subdivision and all improvements attributable 
to him.
    (2) A list of all improvements to the tract, showing:
    (i) The cost of such improvements.
    (ii) Which of the improvements, without regard to the election, he 
considers substantial and which he considers not substantial.

[[Page 385]]

    (iii) Those improvements which are substantial to which the election 
is to apply, with a fair allocation of their cost to each lot they 
affect, and the amount by which they have increased the values of such 
lots.
    (iv) The date on which each lot was acquired and its basis for 
determining gain or loss, exclusive of the cost of any improvements 
listed in subdivision (iii) of this subdivision.
    (3) A statement that he will neither deduct as an expense nor add to 
the basis of any lot sold, or of any other property, any portion of the 
cost of any substantial improvement which substantially increased the 
value of any lot in the tract and which either he listed pursuant to 
(a)(2)(iii) of this subdivision or which the district director deems 
substantial.
    (b) The election and the information required under (a) of this 
subdivision shall be submitted to the district director:
    (1) With the taxpayer's income tax return for the taxable year in 
which the lots subject to the election were sold, or
    (2) In the case of a return filed prior to August 14, 1957, either 
with a timely claim for refund, where the benefits of section 1237 have 
not been claimed on such return, or, independently, before November 13, 
1957, where such benefits have been claimed, or
    (3) If there is an obligation to make disqualifying improvements 
outstanding when the taxpayer files his return, with a formal claim for 
refund at the time of the release of the obligation, if it is then still 
possible to file a timely claim.
    (c) Once made, the election as to the necessary improvement costs 
attributable to any lot sold shall be irrevocable and binding on the 
taxpayer unless the district director assesses an income tax as to such 
lot as if it were held for sale in the ordinary course of taxpayer's 
business. Under such circumstances, in computing gain, the cost or other 
basis shall be computed without regard to section 1237.
    (iv) Exceptions with respect to necessary improvements and certain 
corporations. For taxable years beginning after December 31, 1954, 
individual taxpayers and certain corporations may obtain the benefits of 
section 1237 without complying with the provisions of subdivisions (i) 
(c) and (d), (ii), and (iii) of this subparagraph if the requirements of 
section 1237 are otherwise met and if:
    (a) The property in question was acquired by the taxpayer through 
the foreclosure of a lien thereon,
    (b) The lien foreclosed secured the payment of an indebtedness to 
the taxpayer or (in the case of a corporation) secured the payment of an 
indebtedness to a creditor who has transferred the foreclosure bid to 
the taxpayer in exchange for all of the stock of the corporation and 
other consideration, and
    (c) In the case of a corporate taxpayer, no shareholder of the 
corporation holds real property for sale to customers in the ordinary 
course of his trade or business or holds a controlling interest in 
another corporation which actually so holds real property, or which, but 
for the application of this subdivision, would be considered to so hold 
real property.

Thus, in the case of such property, it is not necessary for the taxpayer 
to satisfy the district director that the property would not have 
brought the prevailing local price without improvements or to elect not 
to add the cost of the improvements to his basis. In addition, if 80 
percent or more of the real property owned by a taxpayer is property to 
which this subdivision applies, the requirements of (a) and (b) of this 
subdivision need not be met with respect to property adjacent to such 
property which is also owned by the taxpayer.
    (d) Holding period required--(1) General rules. To apply section 
1237, the taxpayer must either have inherited the lot sold or have held 
it for 5 years. Generally, the provisions of section 1223 are applicable 
in determining the period for which the taxpayer has held the property. 
The provisions of this subparagraph may be illustrated by the following 
examples:

    Example 1. A held a tract of land for 3 years under circumstances 
otherwise qualifying for section 1237 treatment. He made a gift of the 
tract to B at a time when the fair market value of the tract exceeded 
A's basis for the tract. B held the tract for 2 more years under similar 
circumstances. B then sold 4

[[Page 386]]

lots from the tract. B is entitled to the benefits of section 1237 since 
under section 1223(2) he held the lots for 5 years and all the other 
requirements of section 1237 are met.
    Example 2. C purchased all the stock in a corporation in 1955. The 
corporation purchased an unimproved tract of land in 1957. In 1961 the 
corporation was liquidated under section 333 and C acquired the tract of 
land. For purposes of section 1237, C's holding period commenced on the 
date the corporation actually acquired the land in 1957 and not on the 
date C purchased the stock.

    (2) Rules relating to property acquired upon death. If the taxpayer 
inherited the property there is no 5-year holding period required under 
section 1237. However, any holding period required by any other 
provision of the Code, such as section 1222, is nevertheless applicable. 
For purposes of section 1237, neither the survivor's one-half of 
community property, nor property acquired by survivorship in a joint 
tenancy, is property acquired by devise or inheritance. The holding 
period for the surviving joint tenant begins on the date the property 
was originally acquired.
    (e) Tax consequences if section 1237 applies--(1) Introductory. 
Where there is no substantial evidence other than subdivision and 
related selling activities that real property is held for sale in the 
ordinary course of taxpayer's business and section 1237 applies, section 
1237(b)(1) provides a special rule for computing taxable gain. For the 
relationship between sections 1237 and 1231, see paragraph (f) of this 
section.
    (2) Characterization of gain and its relation to selling expenses. 
(i) When the taxpayer has sold less than 6 lots or parcels from the same 
tract up to the end of his taxable year, the entire gain will be capital 
gain. (Where the land is used in a trade or business, see paragraph (f) 
of this section.) In computing the number of lots or parcels sold, two 
or more contiguous lots sold to a single buyer in a single sale will be 
counted as only one parcel. The following example illustrates this rule:

    Example: A meets all the conditions of section 1237 in subdividing 
and selling a single tract. In 1956 he sells 4 lots to B, C, D, and E. 
In the same year F buys 3 adjacent lots. Since A has sold only 5 lots or 
parcels from the tract, any gain A realizes on the sales will be capital 
gain.

    (ii) If the taxpayer has sold the sixth lot or parcel from the same 
tract within the taxable year, then the amount, if any, by which 5 
percent of the selling price of each lot exceeds the expenses incurred 
in connection with its sale or exchange, shall, to the extent it 
represents gain, be ordinary income. Any part of the gain not treated as 
ordinary income will be treated as capital gain. (Where the land is used 
in a trade or business, see paragraph (f) of this section.) Five percent 
of the selling price of each lot sold from the tract in the taxable year 
the sixth lot is sold and thereafter is, to the extent it represents 
gain, considered ordinary income. However, all expenses of sale of the 
lot are to be deducted first from the 5 percent of the gain which would 
otherwise be considered ordinary income, and any remainder of such 
expenses shall reduce the gain upon the sale or exchange which would 
otherwise be considered capital gain. Such expenses cannot be deducted 
as ordinary business expenses from other income. The 5-percent rule 
applies to all lots sold from the tract in the year the sixth lot or 
parcel is sold. Thus, if the taxpayer sells the first 6 lots of a single 
tract in one year, 5 percent of the selling price of each lot sold shall 
be treated as ordinary income and reduced by the selling expenses. On 
the other hand, if the taxpayer sells the first 3 lots of a single tract 
in 1955, and the next 3 lots in 1956, only the gain realized from the 
sales made in 1956 shall be so treated. For the effect of a 5-year 
interval between sales, see paragraph (g)(2) of this section. The 
operation of this subdivision may be illustrated by the following 
examples:

    Example 1. Assume the selling price of the sixth lot of a tract is 
$10,000, the basis of the lot in the hands of the taxpayer is $5,000, 
and the expenses of sale are $750. The amount of gain realized by the 
taxpayer is $4,250, of which the amount of ordinary income attributable 
to the sale is zero, computed as follows:

Selling price................................................    $10,000
Basis........................................................      5,000
                                                   ------------
    Excess over basis........................................      5,000
5 percent of selling price........................        500
Expenses of sale..................................        750
                                                   -----------
Amount of gain realized treated as ordinary income...........          0
Excess over basis............................................      5,000

[[Page 387]]

 
5 percent of selling price........................        500
Excess of expenses over 5 percent of selling price        250
                                                   -----------
                                                    .........        750
                                                              ----------
    Amount of gain realized from sale of property not held         4,250
     for sale in ordinary course of business.................
 

    Example 2. Assume the same facts as in Example 1, except that the 
expenses of sale of such sixth lot are $300. The amount of gain realized 
by the taxpayer is $4,700, of which the amount of ordinary income 
attributable to the sale is $200, computed as follows:

Selling price................................................    $10,000
Basis........................................................      5,000
                                                   ------------
    Excess over basis........................................      5,000
5 percent of selling price........................       $500
Expenses of sale..................................        300
                                                   -----------
Amount of gain realized treated as ordinary income...........        200
Excess over basis............................................      5,000
5 percent of selling price........................        500
Excess of expenses over 5 percent of selling price          0
                                                   -----------
                                                    .........        500
                                                              ----------
    Amount of gain realized from sale of property not held         4,500
     for sale in ordinary course of business.................
 

    (iii) In the case of an exchange, the term selling price shall mean 
the fair market value of property received plus any sum of money 
received in exchange for the lot. See section 1031 for those exchanges 
in which no gain is recognized. For the purpose of subsections (b) and 
(c) of section 1237 and paragraphs (e) and (g) of this section, an 
exchange shall be treated as a sale or exchange whether or not gain or 
loss is recognized with respect to such exchange.
    (f) Relationship of section 1237 and section 1231. Application of 
section 1237 to a sale of real property may, in some cases, result in 
the property being treated as real property used in the trade or 
business, as described in section 1231(b)(1). Thus, assuming section 
1237 is otherwise applicable, if the lot sold would be considered 
property described in section 1231(b)(1) except for the fact that the 
taxpayer subdivided the tract of which it was a part, then evidence of 
such subdivision and connected sales activities shall be disregarded and 
the lot sold shall be considered real property used in the trade or 
business. Under such circumstances, any gain or loss realized from the 
sale shall be treated as gain or loss arising from the sale of real 
property used in the trade or business.
    (g) Definition of tract--(1) Aggregation of properties. For the 
purposes of section 1237, the term tract means either (i) a single piece 
of real property or (ii) two or more pieces of real property if they 
were contiguous at any time while held by the taxpayer, or would have 
been contiguous but for the interposition of a road, street, railroad, 
stream, or similar property. Properties are contiguous if their 
boundaries meet at one or more points. The single piece of contiguous 
properties need not have been conveyed by a single deed. The taxpayer 
may have assembled them over a period of time and may hold them 
separately, jointly, or as a partner, or in any combination of such 
forms of ownership.
    (2) When a subdivision will be considered a new tract. If the 
taxpayer sells or exchanges no lots from the tract for a period of 5 
years after the sale or exchange of at least 1 lot in the tract, then 
the remainder of the tract shall be deemed a new tract for the purpose 
of counting the number of lots sold from the same tract under section 
1237(b)(1). The pieces in the new tract need not be contiguous. The 5-
year period is measured between the dates of the sales or exchanges.
    (h) Effective date. This section shall apply only to gain realized 
on sales made after December 31, 1953, or, in the case of a person 
meeting the requirements of paragraph (c)(5)(iv) of this section, if the 
sale of the lot occurs in a taxable year beginning after December 31, 
1954. Pursuant to section 7851(a)(1)(C), the regulations prescribed in 
this section (other than subdivision (iv) of paragraph (c)(5)) shall 
also apply to taxable years beginning before January 1, 1954, and ending 
after December 31, 1953, and to taxable years beginning after December 
31, 1953, and ending before August 17, 1954, although such years are 
subject to the Internal Revenue Code of 1939. Irrespective of whether 
the taxable year involved is subject to the Internal Revenue Code of 
1939 or the Internal Revenue Code of 1954, sales or exchanges made 
before January 1, 1954, shall be taken into account to determine 
whether: (1) No

[[Page 388]]

sales or exchanges have been made for 5 years, under section 1237(c), 
and (2) more than 5 lots or parcels have been sold or exchanged from the 
same tract, under section 1237(b)(1). Thus, if the taxpayer sold 5 lots 
from a single tract in 1950, and another lot is sold in 1954, the lot 
sold in 1954 constitutes the sixth lot sold from the original tract. On 
the other hand, if the first 5 lots were sold in 1948, the sale made in 
1954 shall be deemed to have been made from a new tract.

[T.D. 6500, 25 FR 12016, Nov. 26, 1960]



Sec.  1.1238-1  Amortization in excess of depreciation.

    (a) In general. Section 1238 provides that if a taxpayer is entitled 
to a deduction for amortization of an emergency facility under section 
168, and if the facility is later sold or exchanged, any gain realized 
shall be considered as ordinary income to the extent that the 
amortization deduction exceeds normal depreciation. Thus, under section 
1238 gain from a sale or exchange of property shall be considered as 
ordinary income to the extent that its adjusted basis is less than its 
adjusted basis would be if it were determined without regard to section 
168. If an entire facility is certified under section 168(e), the 
taxpayer may use allowances for depreciation based on any rate and 
method which would have been proper if the basis of the facility were 
not subject to amortization under section 168, in determining what the 
adjusted basis of the facility would be if it were determined without 
regard to section 168. If only a portion of a facility is certified 
under section 168(e), allowances for depreciation based on the rate and 
method properly used with respect to the uncertified part of the 
facility are used in determining what the adjusted basis of the facility 
would be if it were determined without regard to section 168. The 
principles of this paragraph may be illustrated by the following 
examples:

    Example 1. On December 31, 1954, a taxpayer making his income tax 
returns on a calendar year basis acquires at a cost of $20,000 an 
emergency facility (used in his business) 50 percent of the adjusted 
basis of which has been certified under section 168(e). The facility 
would normally have a useful life of 20 years and a salvage value of 
$2,000 allocable equally between the certified and uncertified portions. 
Under section 168 the taxpayer elects to begin the 60-month amortization 
period on January 1, 1955. He takes amortization deductions with respect 
to the certified portion in the amount of $4,000 for the years 1955 and 
1956 (24 months). On December 31, 1956, he sells the facility for a 
price of $19,000 which is allocable equally between the certified and 
uncertified portions. The adjusted basis of the certified portion on 
that date is $6,000 ($10,000 cost, less $4,000 amortization). With 
respect to the uncertified portion, the straight line method of 
depreciation is used and a deduction for depreciation in the amount of 
$450 is claimed and allowed for the year 1955. The adjusted basis of the 
uncertified portion on January 1, 1956, is $9,550 ($10,000 cost, less 
$450 depreciation). The depreciation allowance for the uncertified 
portion for the year 1956 would be limited to $50, the amount by which 
the adjusted basis of such portion at the beginning of the year exceeded 
its aliquot portion of the sales price. Thus, on December 31, 1956, the 
adjusted basis of the uncertified portion would be $9,500. Without 
regard to section 168, and using the rate and method the taxpayer 
properly applied to the uncertified portion of the facility, the 
adjusted basis of the certified portion on December 31, 1956, would be 
$9,500, computed in the same manner as the adjusted basis of the 
uncertified portion. The difference between the facility's actual 
adjusted basis ($15,500) and its adjusted basis determined without 
regard to section 168 ($19,000), is $3,500. Accordingly, the entire 
$3,500 gain on the sale of the facility ($19,000 sale price, less 
$15,500 adjusted basis) is treated as ordinary income.
    Example 2. Assume that the entire facility in example (1) had been 
certified under section 168(e) and that, therefore, the adjusted basis 
of the facility on December 31, 1956, is $12,000. Assume further that 
the taxpayer adopts straight line depreciation as a proper method of 
depreciation for determining the adjusted basis of the facility without 
regard to section 168. Thus, the adjusted basis, without regard to 
section 168, would be $19,000. This amount is $7,000 more than the 
$12,000 adjusted basis under section 168. Hence, the entire $7,000 gain 
on the sale of the facility ($19,000 sale price less $12,000 adjusted 
basis) is treated as ordinary income.

    (b) Substituted basis. If a taxpayer acquires other property in an 
exchange for an emergency facility with respect to which amortization 
deductions have been allowed or allowable, and if the basis in his hands 
of the other property is determined by reference to the basis of the 
emergency facility, then the

[[Page 389]]

basis of the other property is determined with regard to section 168, 
and therefore the provisions of section 1238 apply with respect to gain 
realized on a subsequent sale or exchange of the other property. The 
provisions of section 1238 also apply to gain realized on the sale or 
exchange of an emergency facility (or other property acquired, as 
described in the preceding sentence, in exchange for an emergency 
facility) by a taxpayer in whose hands the basis of the facility (or 
other property) is determined by reference to its basis in the hands of 
another person to whom deductions were allowable or allowed with respect 
to the facility under section 168.

[T.D. 6500, 25 FR 12020, Nov. 26, 1960, as amended by T.D. 6825, 30 FR 
7281, June 2, 1965]



Sec.  1.1239-1  Gain from sale or exchange of depreciable property 
between certain related taxpayers after October 4, 1976.

    (a) In general. In the case of a sale or exchange of property, 
directly or indirectly, between related persons after October 4, 1976 
(other than a sale or exchange made under a binding contract entered 
into on or before that date), any gain recognized by the transferor 
shall be treated as ordinary income if such property is, in the hands of 
the transferee, subject to the allowance for depreciation provided in 
section 167. This rule also applies to property which would be subject 
to the allowance for depreciation provided in section 167 except that 
the purchaser has elected a different form of deduction, such as those 
allowed under sections 169, 188, and 191.
    (b) Related persons. For purposes of paragraph (a) of this section, 
the term related persons means:
    (1) A husband and wife,
    (2) An individual and a corporation 80 percent or more in value of 
the outstanding stock of which is owned, directly or indirectly, by or 
for such individual, or
    (3) Two or more corporations 80 percent or more in value of the 
outstanding stock of each of which is owned, directly or indirectly, by 
or for the same individual.
    (c) Rules of construction--(1) Husband and wife. For purposes of 
paragraph (b)(1) of this section, if on the date of the sale or exchange 
a taxpayer is legally separated from his spouse under an interlocutory 
decree of divorce, the taxpayer and his spouse shall not be treated as 
husband and wife, provided the sale or exchange is made pursuant to the 
decree and the decree subsequently becomes final. Thus, if pursuant to 
an interlocutory decree of divorce, an individual transfers depreciable 
property to his spouse and, because of this section, the gain recognized 
on the transfer of the property is treated as ordinary income, the 
individual may, if the interlocutory decree becomes final after his tax 
return has been filed, file a claim for a refund.
    (2) Sales between commonly controlled corporations. In general, in 
the case of a sale or exchange of depreciable property between related 
corporations (within the meaning of paragraph (b)(3) of this section), 
gain which is treated as ordinary income by reason of this section shall 
be taxable to the transferor corporation rather than to a controlling 
shareholder. However, such gain shall be treated as ordinary income 
taxable to a controlling shareholder rather than the transferor 
corporation if the transferor corporation is used by a controlling 
shareholder as a mere conduit to make a sale to another controlled 
corporation, or the entity of the corporate transferor is otherwise 
properly disregarded for tax purposes. Sales between two or more 
corporations that are related within the meaning of paragraph (b)(3) of 
this section may also be subject to the rules of section 482 (relating 
to allocation of income between or among organizations, trades, or 
businesses which are commonly owned or controlled), and to rules 
requiring constructive dividend treatment to the controlling shareholder 
in appropriate circumstances.
    (3) Relationship determination for transfers made after January 6, 
1983--taxpayer and an 80-percent owned entity. For purposes of paragraph 
(b)(2) of this section with respect to transfers made after January 6, 
1983--
    (i) If the transferor is an entity, the transferee and such entity 
are related

[[Page 390]]

if the entity is an 80-percent owned entity with respect to such 
transferee either immediately before or immediately after the sale or 
exchange of depreciable property, and
    (ii) If the transferor is not an entity, the transferee and such 
transferor are related if the transferee is an 80-percent owned entity 
with respect to such transferor immediately after the sale or exchange 
of depreciable property.
    (4) Relationship determination for transfers made after January 6, 
1983--two 80-percent owned entities. For purposes of paragraph (b)(3) of 
this section, with respect to transfers made after January 6, 1983, two 
entities are related if the same shareholder both owns 80 percent or 
more in value of the stock of the transferor before the sale or exchange 
of depreciable property and owns 80 percent or more in value of the 
stock of the transferee immediately after the sale or exchange of 
depreciable property.
    (5) Ownership of stock. For purposes of determining the ownership of 
stock under this section, the constructive ownership rules of section 
318 shall be applied, except that section 318(a)(2)(C) (relating to 
attribution of stock ownership from a corporation) and section 
318(a)(3)(C) (relating to attribution of stock ownership to a 
corporation) shall be applied without regard to the 50-percent 
limitation contained therein. The application of the constructive 
ownership rules of section 318 to section 1239 is illustrated by the 
following examples:

    Example 1. A, an individual, owns 79 percent of the stock (by value) 
of Corporation X, and a trust for A's children owns the remaining 21 
percent of the stock. A's children are deemed to own the stock owned for 
their benefit by the trust in proportion to their actuarial interests in 
the trust (section 318(a)(2)(B)). A, in turn, constructively owns the 
stock so deemed to be owned by his children (section 318(a)(1)(A)(ii)). 
Thus, A is treated as owning all the stock of Corporation X, and any 
gain A recognizes from the sale of depreciable property to Corporation X 
is treated under section 1239 as ordinary income.
    Example 2. Y Corporation owns 100 percent in value of the stock of Z 
Corporation. Y Corporation sells depreciable property at a gain to Z 
Corporation. P and his daughter, D, own 80 percent in value of the Y 
Corporation stock. Under the constructive ownership rules of section 
318, as applied to section 1239, P and D are each considered to own the 
stock in Z Corporation owned by Y Corporation. Also, P and D are each 
considered to own the stock in Y Corporation owned by the other. As a 
result, both P and D constructively own 80 percent or more in value of 
the stock of both Y and Z Corporations. Thus, the sale between Y and Z 
is governed by section 1239 and produces ordinary income to Y.

[T.D. 7569, 43 FR 51388, Nov. 3, 1978, as amended by T.D. 8106, 51 FR 
42835, Nov. 26, 1986]



Sec.  1.1239-2  Gain from sale or exchange of depreciable property 
between certain related taxpayers on or before October 4, 1976.

    Section 1239 provides in general that any gain from the sale or 
exchange of depreciable property between a husband and wife or between 
an individual and a controlled corporation on or before October 4, 1976 
(and in the case of a sale or exchange occurring after that date if made 
under a binding contract entered into on or before that date), shall be 
treated as ordinary income. Thus, any gain recognized to the transferor 
from a sale or exchange after May 3, 1951, and on or before October 4, 
1976 (or thereafter if pursuant to a binding contract entered into on or 
before that date), directly or indirectly, between a husband and wife or 
between an individual and a controlled corporation, of property which, 
in the hands of the transferee, is property of a character subject to an 
allowance for depreciation provided in section 167 (including such 
property on which a deduction for amortization is allowable under 
sections 168 and 169) shall be considered as gain from the sale or 
exchange of property which is neither a capital asset nor property 
described in section 1231. For the purpose of section 1239, a 
corporation is controlled when more than 80 percent in value of all 
outstanding stock of the corporation is beneficially owned by the 
taxpayer, his spouse, and his minor children and minor grandchildren. 
For the purpose of this section, the terms children and grandchildren 
include legally adopted children and their children. The provisions of 
section 1239(a)(2) are applicable whether property is transferred from a

[[Page 391]]

corporation to a shareholder or from a shareholder to a corporation.

[T.D. 6500, 25 FR 12021, Nov. 26, 1960, as amended by T.D. 7569, 43 FR 
51388, Nov. 3, 1978]



Sec.  1.1240-1  Capital gains treatment of certain termination payments.

    Any amounts received by an employee for the assignment or release of 
all his rights to receive, after termination of his employment and for a 
period of not less than five years or for a period ending with his 
death, a percentage of the profits or receipts of his employer 
attributable to a time subsequent to such termination, are considered 
received from the sale or exchange of a capital asset held for more than 
six months if the following requirements are met:
    (a) The employee was employed by the employer, in whose future 
profits or receipts the employee had an interest, for a period of more 
than 20 years before the assignment or release by the employee of his 
rights in such future profits or receipts,
    (b) The full rights of the employee to the percentage of the future 
profits or receipts on such employer, which rights are the subject of 
the assignment or release, were incorporated in the terms of the 
contract of employment between the employee and the employer for a 
period of at least 12 years, and were so incorporated before August 16, 
1954,
    (c) The assignment or release was made after the termination of the 
employee's employment with such employer,
    (d) The assignment or release conveyed all the rights of the 
employee in the future profits or receipts of such employer and conveyed 
no other rights of the employee, and
    (e) The total amount to which the employee became entitled pursuant 
to the assignment or release was received by the employee after the 
termination of his employment with such employer and in one taxable year 
of the employee.

The requirement that the assignment or release be made after the 
termination of the employee's employment contemplates a complete and 
bona fide termination of the relationship of employer and employee. This 
requires more than a mere termination of such relationship under the 
particular contract or contracts of employment pursuant to which the 
employee acquired his rights in the future profits or receipts of the 
employer. The contract need not expressly provide that the employee 
shall share in the future profits or receipts of the employer for a 
minimum period of five years. However, if the contract does not 
expressly so provide and the assignment or release is made before the 
expiration of five years following the termination of employment, the 
terms of the contract considered in conjunction with the facts in the 
particular situation must establish that the rights of the employee to a 
percentage of future profits or receipts, in all probability, will 
extend to a period of not less than five years from the date of 
termination of employment or for a period ending with his death. Section 
1240 has application only to an assignment or release made by the 
employee who acquired the right to a percentage of future profits or 
receipts of the employer, and has no application to amounts received 
other than as payment for assignment or release of such right. Section 
1240 has no effect upon the determination of the income tax of the 
employer making the payment to the employee.

[T.D. 6500, 25 FR 12021, Nov. 26, 1960]



Sec.  1.1241-1  Cancellation of lease or distributor's agreement.

    (a) In general. Section 1241 provides that proceeds received by 
lessees or distributors from the cancellation of leases or of certain 
distributorship agreements are considered as amounts received in 
exchange therefor. Section 1241 applies to leases of both real and 
personal property. Distributorship agreements to which section 1241 
applies are described in paragraph (c) of this section. Section 1241 has 
no application in determining whether or not a cancellation not 
qualifying under that section is a sale or exchange. Further, section 
1241 has no application in determining whether or not a lease or a 
distributorship agreement is a capital asset, even though its 
cancellation qualifies as an exchange under section 1241.

[[Page 392]]

    (b) Definition of cancellation. The term cancellation of a lease or 
a distributor's agreement, as used in section 1241, means a termination 
of all the contractual rights of a lessee or distributor with respect to 
particular premises or a particular distributorship, other than by the 
expiration of the lease or agreement in accordance with its terms. A 
payment made in good faith for a partial cancellation of a lease or a 
distributorship agreement is recognized as an amount received for 
cancellation under section 1241 if the cancellation relates to a 
severable economic unit, such as a portion of the premises covered by a 
lease, a reduction in the unexpired term of a lease or distributorship 
agreement, or a distributorship in one of several areas or of one of 
several products. Payments made for other modifications of leases or 
distributorship agreements, however, are not recognized as amounts 
received for cancellation under section 1241.
    (c) Amounts received upon cancellation of a distributorship 
agreement. Section 1241 applies to distributorship agreements only if 
they are for marketing or marketing and servicing of goods. It does not 
apply to agreements for selling intangible property or for rendering 
personal services as, for example, agreements establishing insurance 
agencies or agencies for the brokerage of securities. Further, it 
applies to a distributorship agreement only if the distributor has made 
a substantial investment of capital in the distributorship. The 
substantial capital investment must be reflected in physical assets such 
as inventories of tangible goods, equipment, machinery, storage 
facilities, or similar property. An investment is not considered 
substantial for purposes of section 1241 unless it consists of a 
significant fraction or more of the facilities for storing, 
transporting, processing, or otherwise dealing with the goods 
distributed, or consists of a substantial inventory of such goods. The 
investment required in the maintenance of an office merely for clerical 
operations is not considered substantial for purposes of this section. 
Furthermore, section 1241 shall not apply unless a substantial amount of 
the capital or assets needed for carrying on the operations of a 
distributorship are acquired by the distributor and actually used in 
carrying on the distributorship at some time before the cancellation of 
the distributorship agreement. It is immaterial for the purposes of 
section 1241 whether the distributor acquired the assets used in 
performing the functions of the distributorship before or after 
beginning his operations under the distributorship agreement. It is also 
immaterial whether the distributor is a retailer, wholesaler, jobber, or 
other type of distributor. The application of this paragraph may be 
illustrated by the following examples:

    Example 1. Taxpayer is a distributor of various food products. He 
leases a warehouse including cold storage facilities and owns a number 
of motor trucks. In 1955 he obtains the exclusive rights to market 
certain frozen food products in his State. The marketing is accomplished 
by using the warehouse and trucks acquired before he entered into the 
agreement and entails no additional capital. Payments received upon the 
cancellation of the agreement are treated under section 1241 as though 
received upon the sale or exchange of the agreement.
    Example 2. Assume that the taxpayer in example (1) entered into an 
exclusive distributorship agreement with the producer under which the 
taxpayer merely solicits orders through his staff of salesmen, the goods 
being shipped direct to the purchasers. Payments received upon the 
cancellation of the agreement would not be treated under section 1241 as 
though received upon the sale or exchange of the agreement.
    Example 3. Taxpayer is an exclusive distributor for M city of 
certain frozen food products which he distributes to frozen-food freezer 
and locker customers. The terms of his distributorship do not make it 
necessary for him to have any substantial investment in inventory. 
Taxpayer rents a loading platform for a nominal amount, but has no 
warehouse space. Orders for goods from customers are consolidated by the 
taxpayer and forwarded to the producer from time to time. Upon receipt 
of these goods, taxpayer allocates them to the individual orders of 
customers and delivers them immediately by truck. Although it would 
require a fleet of fifteen or twenty trucks to carry out this operation, 
the distributor uses only one truck of his own and hires cartage 
companies to deliver the bulk of the merchandise to the customers. 
Payments received upon the cancellation of the distributorship agreement 
in such a case would not be considered received upon the sale or 
exchange of the agreement under section 1241 since the taxpayer does not 
have facilities for the physical handling

[[Page 393]]

of more than a small fraction of the goods involved in carrying on the 
distributorship and, therefore, does not have a substantial capital 
investment in the distributorship. On the other hand, if the taxpayer 
had acquired and used a substantial number of the trucks necessary for 
the deliveries to his customers, payments received upon the cancellation 
of the agreement would be considered received in exchange therefor under 
section 1241.

[T.D. 6500, 25 FR 12021, Nov. 26, 1960]



Sec.  1.1242-1  Losses on small business investment company stock.

    (a) In general. Any taxpayer who sustains a loss for a taxable year 
beginning after September 2, 1958, as a result of the worthlessness, or 
from the sale or exchange, of the stock of a small business investment 
company (whether or not such stock was originally issued to such 
taxpayer) shall treat such loss as a loss from the sale or exchange of 
property which is not a capital asset, if at the time of such loss:
    (1) The company which issued the stock is licensed to operate as a 
small business investment company pursuant to regulations promulgated by 
the Small Business Administration (13 CFR part 107), and
    (2) Such loss would, but for the provisions of section 1242, be a 
loss from the sale or exchange of a capital asset.
    (b) Treatment of losses for purposes of section 172. For the 
purposes of section 172 (relating to the net operating loss deduction), 
any amount of loss treated by reason of section 1242 as a loss from the 
sale or exchange of property which is not a capital asset shall be 
treated as attributable to the trade or business of the taxpayer. 
Accordingly, the limitation of section 172(d)(4) on the allowance of 
nonbusiness deductions in computing a net operating loss shall not apply 
to any loss with respect to the stock of a small business investment 
company as described in paragraph (a) of this section. See section 
172(d) and Sec.  1.172-3.
    (c) Statement to be filed with return. A taxpayer claiming a 
deduction for a loss on the stock of a small business investment company 
shall file with his income tax return a statement containing: The name 
and address of the small business investment company which issued the 
stock, the number of shares, basis, and selling price of the stock with 
respect to which the loss is claimed, the respective dates of purchase 
and sale of such stock, or the reason for its worthlessness and 
approximate date thereof. For the rules applicable in determining the 
worthlessness of securities, see section 165 and the regulations 
thereunder.

[T.D. 6500, 25 FR 12022, Nov. 26, 1960]



Sec.  1.1243-1  Loss of small business investment company.

    (a) In general--(1) Taxable years beginning after July 11, 1969. For 
taxable years beginning after July 11, 1969, a small business investment 
company to which section 582(c) applies, and which sustains a loss as a 
result of the worthlessness, or on the sale or exchange, of the stock of 
a small business concern (as defined in section 103(5) of the Small 
Business Investment Act of 1958, as amended (15 U.S.C. 662(5)) and in 13 
CFR 107.3), shall treat such loss as a loss from the sale or exchange of 
property which is not a capital asset if:
    (i) The stock was issued pursuant to the conversion privilege of the 
convertible debentures acquired in accordance with the provisions of 
section 304 of the Small Business Investment Act of 1958 (15 U.S.C. 684) 
and the regulations thereunder.
    (ii) Such loss would, but for the provisions of section 1243, be a 
loss from the sale or exchange of a capital asset, and
    (iii) At the time of the loss, the company is licensed to operate as 
a small business investment company pursuant to regulations promulgated 
by the Small Business Administration (13 CFR part 107).

If section 582(c) does not apply for the taxable year, see subparagraph 
(2) of this paragraph.
    (2) Taxable years beginning before July 11, 1974. For taxable years 
beginning after September 2, 1958, but before July 11, 1974, a small 
business investment company to which section 582(c) does not apply, and 
which sustains a loss as a result of the worthlessness, or on the sale 
or exchange, of the securities of a small business concern (as defined 
in section 103(5) of the Small Business Investment Act of 1958, as 
amended (15 U.S.C. 662(5)) and in 13 CFR 107.3), shall treat such loss 
as a loss from the sale

[[Page 394]]

or exchange of property which is not a capital asset if:
    (i) The securities are either the convertible debentures, or the 
stock issued pursuant to the conversion privilege thereof, acquired in 
accordance with the provisions of section 304 of the Small Business 
Investment Act of 1958 (15 U.S.C. 684) and the regulations thereunder.
    (ii) Such loss would, but for the provisions of this subparagraph, 
be a loss from the sale or exchange of a capital asset, and
    (iii) At the time of the loss, the company is licensed to operate as 
a small business investment company pursuant to regulations promulgated 
by the Small Business Administration (13 CFR part 107).

If section 582(c) applies for the taxable year, see subparagraph (1) of 
this paragraph.
    (b) Material to be filed with return. A small business investment 
company which claims a deduction for a loss on the convertible 
debentures (pursuant to paragraph (a)(2) of this section) or stock 
(pursuant to paragraph (a) (1) or (2) of this section) of a small 
business concern shall submit with its income tax return a statement 
that it is a Federal licensee under the Small Business Investment Act of 
1958 (15 U.S.C. chapter 14B). The statement shall also set forth: the 
name and address of the small business concern with respect to whose 
securities the loss was sustained, the number of shares of stock or the 
number and denomination of debentures with respect to which the loss is 
claimed, the basis and selling price thereof, and the respective dates 
of purchase and sale of the securities, or the reason for their 
worthlessness and the approximate date thereof. For the rules applicable 
in determining the worthlessness of securities, see section 165 and the 
regulations thereunder.

[T.D. 7171, 37 FR 5621, Mar. 17, 1972]



Sec.  1.1244(a)-1  Loss on small business stock treated as ordinary loss.

    (a) In general. Subject to certain conditions and limitations, 
section 1244 provides that a loss on the sale or exchange (including a 
transaction treated as a sale or exchange, such as worthlessness) of 
section 1244 stock which would otherwise be treated as a loss from the 
sale or exchange of a capital asset shall be treated as a loss from the 
sale or exchange of an asset which is not a capital asset (referred to 
in this section and Sec. Sec.  1.1244(b)-1 to 1.1244(e)-1, inclusive, as 
an ordinary loss). Such a loss shall be allowed as a deduction from 
gross income in arriving at adjusted gross income. The requirements that 
must be satisfied in order that stock may be considered section 1244 
stock are described in Sec. Sec.  1.1244(c)-1 and 1.1244(c)-2. These 
requirements relate to the stock itself and the corporation issuing such 
stock. In addition, the taxpayer who claims an ordinary loss deduction 
pursuant to section 1244 must satisfy the requirements of paragraph (b) 
of this section.
    (b) Taxpayers entitled to ordinary loss. The allowance of an 
ordinary loss deduction for a loss of section 1244 stock is permitted 
only to the following two classes of taxpayers:
    (1) An individual sustaining the loss to whom the stock was issued 
by a small business corporation, or
    (2) An individual who is a partner in a partnership at the time the 
partnership acquired the stock in an issuance from a small business 
corporation and whose distributive share of partnership items reflects 
the loss sustained by the partnership. The ordinary loss deduction is 
limited to the lesser of the partner's distributive share at the time of 
the issuance of the stock or the partner's distributive share at the 
time the loss is sustained. In order to claim a deduction under section 
1244 the individual, or the partnership, sustaining the loss must have 
continuously held the stock from the date of issuance. A corporation, 
trust, or estate is not entitled to ordinary loss treatment under 
section 1244 regardless of how the stock was acquired. An individual who 
acquires stock from a shareholder by purchase, gift, devise, or in any 
other manner is not entitled to an ordinary loss under section 1244 with 
respect to this stock.

Thus, ordinary loss treatment is not available to a partner to whom the 
stock is distributed by the partnership. Stock acquired through an 
investment

[[Page 395]]

banking firm, or other person, participating in the sale of an issue may 
qualify for ordinary loss treatment only if the stock is not first 
issued to the firm or person. Thus, for example, if the firm acts as a 
selling agent for the issuing corporation the stock may qualify. On the 
other hand, stock purchased by an investment firm and subsequently 
resold does not qualify as section 1244 stock in the hands of the person 
acquiring the stock from the firm.
    (c) Examples. The provisions of paragraph (b) of this section may be 
illustrated by the following examples:

    Example 1. A and B, both individuals, and C, a trust, are equal 
partners in a partnership to which a small business corporation issues 
section 1244 stock. The partnership sells the stock at a loss. A's and 
B's distributive share of the loss may be treated as an ordinary loss 
pursuant to section 1244, but C's distributive share of the loss may not 
be so treated.
    Example 2. The facts are the same as in example (1) except that the 
section 1244 stock is distributed by the partnership to partner A and he 
subsequently sells the stock at a loss. Section 1244 is not applicable 
to the loss since A did not acquire the stock by issuance from the small 
business corporation.

[T.D. 6495, 25 FR 9675, Oct. 8, 1960, as amended by T.D. 7779, 46 FR 
29467, June 2, 1981]



Sec.  1.1244(b)-1  Annual limitation.

    (a) In general. Subsection (b) of section 1244 imposes a limitation 
on the aggregate amount of loss that for any taxable year may be treated 
as an ordinary loss by a taxpayer by reason of that section. In the case 
of a partnership, the limitation is determined separately as to each 
partner. Any amount of loss in excess of the applicable limitation is 
treated as loss from the sale or exchange of a capital asset.
    (b) Amount of loss--(1) Taxable years beginning after December 31, 
1978. For any taxable year beginning after December 31, 1978, the 
maximum amount that may be treated as an ordinary loss under section 
1244 is:
    (i) $50,000, or
    (ii) $100,000, if a husband and wife file a joint return under 
section 6013.

These limitations on the maximum amount of ordinary loss apply whether 
the loss or losses are sustained on pre-November 1978 stock (as defined 
in Sec.  1.1244 (c)-1 (a)(1)), post-November 1978 stock (as defined in 
Sec.  1.1244 (c)-1 (a)(2)), or on any combination of pre-November 1978 
stock and post-November 1978 stock. The limitation referred to in (ii) 
applies to a joint return whether the loss or losses are sustained by 
one or both spouses.
    (2) Taxable years ending before November 6, 1978. For any taxable 
year ending before November 6, 1978, the maximum amount that may be 
treated as an ordinary loss under section 1244 is:
    (i) $25,000 or
    (ii) $50,000, if a husband and wife file a joint return under 
section 6013.

The limitation referred to in (ii) applies to a joint return whether the 
loss or losses are sustained by one or both spouses.
    (3) Taxable years including November 6, 1978. For a taxable year 
including November 6, 1978, the maximum amount that may be treated as 
ordinary loss under section 1244 is the sum of:
    (i) The amount calculated by applying the limitations described in 
subparagraph (1) of this paragraph (b) to the amount of loss, if any, 
sustained during the taxable year on post-November 1978 stock, plus
    (ii) The amount calculated by applying the limitations described in 
subparagraph (2) of this paragraph (b) to the amount of loss, if any, 
sustained during the taxable year on pre-November 1978 stock,


To the extent this sum does not exceed $50,000, or, if a husband and 
wife file a joint return under section 6013 for the taxable year, 
$100,000.
    (4) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. A, a married taxpayer who files a joint return for the 
taxable year ending December 31, 1977, sustains a $50,000 loss 
qualifying under section 1244 on pre-November 1978 stock in Corporation 
X and an equal amount of loss qualifying under section 1244 on pre-
November 1978 stock in Corporation Y. A is limited to $50,000 of 
ordinary loss under paragraph (b)(2)(ii). The remaining $50,000 of loss 
is treated as loss from the sale or exchange of a capital asset.
    Example 2. For the taxable year ending December 31, 1979, B, a 
married taxpayer who files a joint return, sustains a $90,000 loss on 
post-November 1978 stock in Corporation X.

[[Page 396]]

In the same taxable year, C, B's spouse, sustains a $25,000 loss on 
post-November 1978 stock in Corporation Y. Both losses qualify under 
section 1244. B and C's ordinary loss is limited to $100,000 under 
paragraph (b)(1)(ii). The remaining $15,000 of loss is treated as loss 
from the sale or exchange of a capital asset.
    Example 3. D, a married taxpayer who files a joint return and 
reports income on a fiscal year basis for the taxable year ending 
November 30, 1978, sustains a $60,000 loss qualifying under section 1244 
on pre-November 1978 stock and a $40,000 loss qualifying under section 
1244 on post-November 1978 stock. D's ordinary loss on pre-November 1978 
stock is limited to $50,000 under subparagraph (3)(ii) of this paragraph 
(b). D's $40,000 loss on post-November 1978 stock is within the limit of 
subparagraph (3)(i) of this paragraph (b). The total of these losses, 
$90,000, is the aggregate amount deductible by D as ordinary loss under 
section 1244. The remaining $10,000 of loss is treated as loss from the 
sale or exchange of a capital asset.
    Example 4. E, a married taxpayer who files a joint return for the 
taxable year ending December 31, 1980, sustains a $75,000 loss 
qualifying under section 1244 on pre-November 1978 stock and a $10,000 
loss qualifying under section 1244 on post-November 1978 stock. E may 
deduct the total of these losses, $85,000, as ordinary loss under 
paragraph (b)(1)(ii).
    Example 5. Assume the same facts as in the preceding example, except 
that the losses are sustained in the taxable year beginning January 1, 
1978, and ending December 31, 1978. E is limited to $60,000 of ordinary 
loss ($50,000 on pre-November 1978 stock plus $10,000 on post-November 
1978 stock) under paragraph (b)(3). The remaining $25,000 of loss is 
treated as loss from the sale or exchange of a capital asset.
    Example 6. F, a married taxpayer who files a joint return for the 
taxable year beginning January 1, 1978, and ending December 31, 1978, 
sustains a $75,000 loss qualifying under section 1244 on pre-November 
1978 stock and a $125,000 loss qualifying under section 1244 on post-
November 1978 stock. F's loss on pre-November 1978 stock is limited to 
$50,000 of ordinary loss under subparagraph (3)(ii) of this paragraph 
(b). F's loss on post-November 1978 stock is limited to $100,000 of 
ordinary loss under subparagraph (3)(i) of this paragraph (b). The total 
of these losses, $150,000, is limited to $100,000 of ordinary loss under 
paragraph (b)(3). F's aggregate amount of ordinary loss under section 
1244 is $100,000. The remaining $100,000 of loss is treated as loss from 
the sale or exchange of a capital asset.

[T.D. 7779, 46 FR 29467, June 2, 1981]



Sec.  1.1244(c)-1  Section 1244 stock defined.

    (a) In general. For purposes of Sec. Sec.  1.1244(a)-1 to 1.1244(e)-
1, inclusive:
    (1) The term pre-November 1978 stock means stock issued after June 
30, 1958, and on or before November 6, 1978.
    (2) The term post-November 1978 stock means stock issued after 
November 6, 1978.

    In order that stock may qualify as section 1244 stock, the 
requirements described in paragraphs (b) through (e) of this section 
must be satisfied. In addition, the requirements of paragraph (f) of 
this section must be satisfied in the case of pre-November 1978 stock. 
Whether these requirements have been met is determined at the time the 
stock is issued, except for the requirement in paragraph (e) of this 
section. Whether the requirement in paragraph (e) of this section, 
relating to gross receipts of the corporation, has been satisfied is 
determined at the time a loss is sustained. Therefore, at the time of 
issuance it cannot be said with certainty that stock will qualify for 
the benefits of section 1244.

    (b) Common stock. Only common stock, either voting or nonvoting, in 
a domestic corporation may qualify as section 1244 stock. For purposes 
of section 1244, neither securities of the corporation convertible into 
common stock nor common stock convertible into other securities of the 
corporation are treated as common stock. An increase in the basis of 
outstanding stock as a result of a contribution to capital is not 
treated as an issuance of stock under section 1244. For definition of 
domestic corporation, see section 7701(a)(4) and the regulations under 
that section.
    (c) Small business corporation. At the time the stock is issued (or, 
in the case of pre-November 1978 stock, at the time of adoption of the 
plan described in paragraph (f)(1) of this section) the corporation must 
be a small business corporation. See Sec.  1.1244(c)-2 for the 
definition of a small business corporation.
    (d) Issued for money or other property. (1) The stock must be issued 
to the taxpayer for money or other property transferred by the taxpayer 
to the corporation. However, stock issued in exchange for stock or 
securities, including stock or securities of the issuing corporation, 
cannot qualify as section 1244 stock, except as provided in

[[Page 397]]

Sec.  1.1244(d)-3, relating to certain cases where stock is issued in 
exchange for section 1244 stock. Stock issued for services rendered or 
to be rendered to, or for the benefit of, the issuing corporation does 
not qualify as section 1244 stock. Stock issued in consideration for 
cancellation of indebtedness of the corporation shall be considered 
issued in exchange for money or other property unless such indebtedness 
is evidenced by a security, or arises out of the performance of personal 
services.
    (2) The following examples illustrate situations where stock fails 
to qualify as section 1244 stock as a result of the rules in 
subparagraph (1) of this paragraph:

    Example 1. A taxpayer owns stock of Corporation X issued to him 
prior to July 1, 1958. Under a plan adopted in 1977, he exchanges his 
stock for a new issuance of stock of Corporation X. The stock received 
by the taxpayer in the exchange may not qualify as section 1244 stock 
even if the corporation has adopted a valid plan and is a small business 
corporation.
    Example 2. A taxpayer owns stock in Corporation X. Corporation X 
merges into Corporation Y. In exchange for his stock, Corporation Y 
issues shares of its stock to the taxpayer. The stock in Corporation Y 
does not qualify as section 1244 stock even if the stock exchanged by 
the taxpayer did qualify.
    Example 3. Corporation X transfers part of its business assets to 
Corporation Y, a new corporation, and all of the stock of Corporation Y 
is issued directly to the shareholders of Corporation X. Since the 
Corporation Y stock was not issued to the shareholders for a transfer by 
them of money or other property, none of the Corporation Y stock in the 
hands of the shareholders can qualify.

    (e) Gross receipts. (1)(i)(a) Except as provided in subparagraph (2) 
of this paragraph, stock will not qualify under section 1244, if 50 
percent or more of the gross receipts of the corporation, for the period 
consisting of the five most recent taxable years of the corporation 
ending before the date the loss on such stock is sustained by the 
shareholders, is derived from royalties, rents, dividends, interest, 
annuities, and sales or exchanges of stock or securities. If the 
corporation has not been in existence for five taxable years ending 
before such date, the percentage test referred to in the preceding 
sentence applies to the period of the taxable years ending before such 
date during which the corporation has been in existence; and if the loss 
is sustained during the first taxable year of the corporation such test 
applies to the period beginning with the first day of such taxable year 
and ending on the day before the loss is sustained. The test under this 
paragraph shall be made on the basis of total gross receipts, except 
that gross receipts from the sales or exchanges of stock or securities 
shall be taken into account only to the extent of gains therefrom. The 
term gross receipts as used in section 1244(c)(1)(C) is not synonymous 
with gross income. Gross receipts means the total amount received or 
accrued under the method of accounting used by the corporation in 
computing its taxable income. Thus, the total amount of receipts is not 
reduced by returns and allowances, cost, or deductions. For example, 
gross receipts will include the total amount received or accrued during 
the corporation's taxable year from the sale or exchange (including a 
sale or exchange to which section 337 applies) of any kind of property, 
from investments, and for services rendered by the corporation. However, 
gross receipts does not include amounts received in nontaxable sales or 
exchanges (other than those to which section 337 applies), except to the 
extent that gain is recognized by the corporation, nor does that term 
include amounts received as a loan, as a repayment of a loan, as a 
contribution to capital, or on the issuance by the corporation of its 
own stock.
    (b) The meaning of the term gross receipts as used in section 
1244(c)(1)(C) may be further illustrated by the following examples:

    Example 1. A corporation on the accrual method sells property (other 
than stock or securities) and receives payment partly in money and 
partly in the form of a note payable at a future time. The amount of the 
money and the face amount of the note would be considered gross receipts 
in the taxable year of the sale and would not be reduced by the adjusted 
basis of the property, the costs of sale, or any other amount.
    Example 2. A corporation has a long-term contract as defined in 
paragraph (a) of Sec.  1.451-3 with respect to which it reports income 
according to the percentage-of-completion method as described in 
paragraph (b)(1) of Sec.  1.451-3. The portion of the gross contract 
price which corresponds to the percentage of

[[Page 398]]

the entire contract which has been completed during the taxable year 
shall be included in gross receipts for such year.
    Example 3. A corporation which regularly sells personal property on 
the installment plan elects to report its taxable income from the sale 
of property (other than stock or securities) on the installment method 
in accordance with section 453. The installment payments actually 
received in a given taxable year of the corporation shall be included in 
gross receipts for such year.

    (ii) The term royalties as used in subdivision (i) of this 
subparagraph means all royalties, including mineral, oil, and gas 
royalties (whether or not the aggregate amount of such royalties 
constitutes 50 percent or more of the gross income of the corporation 
for the taxable year), and amounts received for the privilege of using 
patents, copyrights, secret processes and formulas, good will, 
trademarks, trade brands, franchises, and other like property. The term 
royalties does not include amounts received upon the disposal of timber, 
coal, or domestic iron ore with a retained economic interest to which 
the special rules of section 631 (b) and (c) apply or amounts received 
from the transfer of patent rights to which section 1235 applies. For 
the definition of mineral, oil, or gas royalties, see paragraph (b)(11) 
(ii) and (iii) of Sec.  1.543-1. For purposes of this subdivision, the 
gross amount of royalties shall not be reduced by any part of the cost 
of the rights under which they are received or by any amount allowable 
as a deduction in computing taxable income.
    (iii) The term rents as used in subdivision (i) of this subparagraph 
means amounts received for the use of, or right to use, property 
(whether real or personal) of the corporation, whether or not such 
amounts constitute 50 percent or more of the gross income of the 
corporation for the taxable year. The term rents does not include 
payments for the use or occupancy of rooms or other space where 
significant services are also rendered to the occupant, such as for the 
use or occupancy of rooms or other quarters in hotels, boarding houses, 
or apartment houses furnishing hotel services, or in tourist homes, 
motor courts, or motels. Generally, services are considered rendered to 
the occupant if they are primarily for his convenience and are other 
than those usually or customarily rendered in connection with the rental 
of rooms or other space for occupancy only. The supplying of maid 
service, for example, constitutes such services; whereas the furnishing 
of heat and light, the cleaning of public entrances, exits, stairways, 
and lobbies, the collection of trash, etc., are not considered as 
services rendered to the occupant. Payments for the use or occupancy of 
entire private residences or living quarters in duplex or multiple 
housing units, of offices in an office building, etc., are generally 
rents under section 1244(c)(1)(C). Payments for the parking of 
automobiles ordinarily do not constitute rents. Payments for the 
warehousing of goods or for the use of personal property do not 
constitute rents if significant services are rendered in connection with 
such payments.
    (iv) The term dividends as used in subdivision (i) of this 
subparagraph includes dividends as defined in section 316, amounts 
required to be included in gross income under section 551 (relating to 
foreign personal holding company income taxed to United States 
shareholders), and consent dividends determined as provided in section 
565.
    (v) The term interest as used in subdivision (i) of this 
subparagraph means any amounts received for the use of money (including 
tax-exempt interest).
    (vi) The term annuities as used in subdivision (i) of this 
subparagraph means the entire amount received as an annuity under an 
annuity, endowment, or life insurance contract, regardless of whether 
only part of such amount would be includible in gross income under 
section 72.
    (vii) For purposes of subdivision (i) of this subparagraph, gross 
receipts from the sales or exchanges of stock or securities are taken 
into account only to the extent of gains therefrom. Thus, the gross 
receipts from the sale of a particular share of stock will be the excess 
of the amount realized over the adjusted basis of such share. If the 
adjusted basis should equal or exceed the amount realized on the sale or 
exchange of a certain share of stock, bond, etc., there would be no 
gross receipts resulting from the sale of such security. Losses on sales 
or exchanges

[[Page 399]]

of stock or securities do not offset gains on the sales or exchanges of 
other stock or securities for purposes of computing gross receipts from 
such sales or exchanges. Gross receipts from the sale or exchange of 
stocks and securities include gains received from such sales or 
exchanges by a corporation even though such corporation is a regular 
dealer in stocks and securities. For the meaning of the term stocks or 
securities, see paragraph (b)(5)(i) of Sec.  1.543-1.
    (2) The requirement of subparagraph (1) of this paragraph need not 
be satisfied if for the applicable period the aggregate amount of 
deductions allowed to the corporation exceeds the aggregate amount of 
its gross income. But for this purpose the deductions allowed by section 
172, relating to the net operating loss deduction, and by sections 242, 
243, 244, and 245, relating to certain special deductions for 
corporations, shall not be taken into account. Notwithstanding the 
provisions of this subparagraph and of subparagraph (1) of this 
paragraph, pursuant to the specific delegation of authority granted in 
section 1244(e) to prescribe such regulations as may be necessary to 
carry out the purposes of section 1244, ordinary loss treatment will not 
be available with respect to stock of a corporation which is not largely 
an operating company within the five most recent taxable years (or such 
lesser period as the corporation is in existence) ending before the date 
of the loss. Thus, for example, assume that a person who is not a dealer 
in real estate forms a corporation which issues stock to him which meets 
all the formal requirements of section 1244 stock. The corporation then 
acquires a piece of unimproved real estate which it holds as an 
investment. The property declines in value and the stockholder sells his 
stock at a loss. The loss does not qualify for ordinary loss treatment 
under section 1244 but must be treated as a capital loss.
    (3) In applying subparagraphs (1) and (2) of this paragraph to a 
successor corporation in a reorganization described in section 
368(a)(1)(F), such corporation shall be treated as the same corporation 
as its predecessor. See paragraph (d)(2) of Sec.  1.1244(d)-3.
    (f) Special rules applicable to pre-November 1978 stock. (1)(i) Pre-
November 1978 common stock must have been issued under a written plan 
adopted by the corporation after June 30, 1958, and on or before 
November 6, 1978, to offer only this stock during a period specified in 
the plan ending not later than 2 years after the date the plan is 
adopted. The 2-year requirement referred to in the preceding sentence is 
met if the period specified in the plan is based upon the date when, 
under the rules or regulations of a Government agency relating to the 
issuance of the stock, the stock may lawfully be sold, and it is clear 
that this period will end, and in fact does end, within 2 years after 
the plan is adopted. The plan must specifically state, in terms of 
dollars, the maximum amount to be received by the corporation in 
consideration for the stock to be issued under the plan. See Sec.  
1.1244(c)-2 for the limitation on the amount that may be received by the 
corporation under the plan.
    (ii) To qualify, the pre-November 1978 stock must be issued during 
the period of the offer, which period must end not later than two years 
after the date the plan is adopted. Pre-November 1978 stock which is 
subscribed for during the period of the plan but not issued during this 
period cannot qualify as section 1244 stock. Pre-November 1978 stock 
issued on the exercise of a stock right, stock warrant, or stock option 
(which right, warrant, or option was not outstanding at the time the 
plan was adopted) will be treated as issued under a plan only if the 
right, warrant, or option is applicable solely to unissued stock offered 
under the plan and is exercised during the period of the plan.
    (iii) Pre-November 1978 stock subscribed for prior to the adoption 
of the plan, including stock subscribed for prior to the date the 
corporation comes into existence, may be considered issued under a plan 
adopted by the corporation if the stock is not in fact issued prior to 
the adoption of the plan.
    (iv) Pre-November 1978 stock issued for a payment which, alone or 
together with prior payments, exceeds the maximum amount that may be 
received under the plan, is not considered issued

[[Page 400]]

under the plan, and none of the stock can qualify as section 1244 stock. 
See Sec.  1.1244(c)-2(b) for a different rule with respect to post-
November 1978 stock.
    (2) Pre-November 1978 stock does not qualify as section 1244 stock 
if at the time of the adoption of the plan under which it is issued 
there remains unissued any portion of a prior offering of stock. Thus, 
if any portion of an outstanding offering of common or preferred stock 
is unissued at the time of the adoption of the plan, stock issued under 
the plan will not qualify as section 1244 stock. An offer is outstanding 
unless and until it is withdrawn by affirmative action before the plan 
is adopted. Stock rights, stock warrants, stock options, or securities 
convertible into stock, that are outstanding at the time the plan is 
adopted, are considered prior offerings. The authorization in the 
corporate charter to issue stock different from stock offered under the 
plan or in excess of stock offered under the plan is not of itself a 
prior offering.
    (3)(i) Even though the plan satisfies the requirements of 
subparagraph (1) of this paragraph (f), if another offering of pre-
November 1978 stock is made by the corporation subsequent to, or 
simultaneous with, the adoption of the plan, pre-November 1978 stock 
issued under the plan after the other offering does not qualify as 
section 1244 stock. The issuance of stock options, stock rights, or 
stock warrants at any time during the period of the plan, that are 
exercisable on stock other than stock offered under the plan, is 
considered a subsequent offering. Similarly, the issuance of pre-
November 1978 stock other than that offered under the plan is considered 
a subsequent offering. Because stock issued upon exercise of a converson 
privilege is stock issued for a security, and stock issued under a stock 
option granted in whole or in part for services is not issued for money 
or other property, the issuance of securities with a conversion 
privilege and the issuance of such a stock option are subsequent 
offerings, because the conversion privilege and the stock option are 
exercisable with respect to stock other than that which may properly be 
offered under the plan. Pre-November 1978 stock issued under the plan 
before a subsequent offering is not disqualified because of the 
subsequent offering. The rule of the subparagraph, together with the 
rule of subparagraph (2) of this paragraph (f), relating to offers prior 
to the adoption of the plan, limits pre-November 1978 section 1244 stock 
to stock issued by the corporation during a period when any stock issued 
by it must have been issued under the plan.
    (ii) Any modification of a plan that changes the offering to include 
preferred stock, or that increases the amount of pre-November 1978 stock 
that may be issued under the plan to such an extent that the 
requirements of paragraph (c) of this section would not have been 
satisfied if determined with reference to this amount as of the date the 
plan was initially adopted, or that extends the period of time during 
which stock may be issued under the plan to more than 2 years from the 
date the plan was initially adopted, is considered a subsequent 
offering, and no stock issued after this offering may qualify. However, 
a corporation may withdraw a plan and adopt a new plan to issue stock. 
To determine whether stock issued under this new plan may qualify, this 
paragraph (f) must be applied with respect to the new plan as of the 
date of its adoption. For example, amounts received for stock under the 
prior plan must be taken into account in determining whether the 
statutory requirements relating to definition of small business 
corporation are satisfied. In applying the requirements of paragraph (c) 
of this section, reference should be made to equity capital as of the 
date the new plan is adopted. The same principles apply if the period of 
the initial plan expires and the corporation adopts a new plan.

[T.D. 7779, 46 FR 29468, June 2, 1981]



Sec.  1.1244(c)-2  Small business corporation defined.

    (a) In general. A corporation is treated as a small business 
corporation if it is a domestic corporation that satisfies the 
requirements described in paragraph (b) or (c) of this section. The 
requirements of paragraph (b) of this section apply if a loss is 
sustained on post-November 1978 stock. The requirements of paragraph (c) 
of this section apply if a loss is sustained on pre-November

[[Page 401]]

1978 stock. If losses are sustained on both pre-November 1978 stock and 
post-November 1978 stock in the same taxable year, the requirements of 
paragraph (b) of this section are applied to the corporation at the time 
of the issuance of the stock (as required by paragraph (b) in the case 
of a loss on post-November 1978 stock) in order to determine whether the 
loss on post-November 1978 stock qualifies as a section 1244 loss, and 
the requirements of paragraph (c) of this section are applied to the 
corporation at the time of the adoption of the plan (as required by 
paragraph (c) in the case of a loss on pre-November 1978 stock) in order 
to determine whether the loss on pre-November 1978 stock qualifies as a 
section 1244 loss. For definition of domestic corporation, see section 
7701 (a)(4) and the regulations under that section.
    (b) Post-November 1978 stock--(1) Amount received by corporation for 
stock. Capital receipts of a small business corporation may not exceed 
$1,000,000. For purposes of this paragraph the term capital receipts 
means the aggregate dollar amount received by the corporation for its 
stock, as a contribution to capital, and as paid-in surplus. If the 
$1,000,000 limitation is exceeded, the rules of subparagraph (2) of this 
paragraph (b) apply. In making these determinations, (i) property is 
taken into account at its adjusted basis to the corporation (for 
determining gain) as of the date received by the corporation, and (ii) 
this aggregate amount is reduced by the amount of any liability to which 
the property was subject and by the amount of any liability assumed by 
the corporation at the time the property was received. Capital receipts 
are not reduced by distributions to shareholders, even though the 
distributions may be capital distributions.
    (2) Requirement of designation in event $1,000,000 limitation 
exceeded. (i) If capital receipts exceed $1,000,000, the corporation 
shall designate as section 1244 stock certain shares of post-November 
1978 common stock issued for money or other property in the transitional 
year. For purposes of this paragraph, the term transitional year means 
the first taxable year in which capital receipts exceed $1,000,000 and 
in which the corporation issues stock. This designation shall be made in 
accordance with the rules of subdivision (iii) of this paragraph (b)(2). 
The amount received for designated stock shall not exceed $1,000,000 
less amounts received--
    (A) In exchange for stock in years prior to the transitional year;
    (B) As contributions to capital in years prior to the transitional 
year; and
    (C) As paid-in surplus in years prior to the transitional year.
    (ii) Post-November 1978 common stock issued for money or other 
property before the transitional year qualifies as section 1244 stock 
without affirmative designation by the corporation. Post-November 1978 
common stock issued after the transitional year does not qualify as 
section 1244 stock.
    (iii) The corporation shall make the designation required by 
subdivision (i) of this paragraph (b)(2) not later than the 15th day of 
the third month following the close of the transitional year. However, 
in the case of post-November 1978 common stock issued on or before June 
2, 1981 the corporation shall make the required designation by August 3, 
1981 or by the 15th day of the 3rd month following the close of the 
transitional year, whichever is later. The designation shall be made by 
entering the numbers of the qualifying share certificates on the 
corporation's records. If the shares do not bear serial numbers or other 
identifying numbers or letters, or are not represented by share 
certificates, the corporation shall make an alternative designation in 
writing at the time of issuance, or, in the case of post-November 1978 
common stock issued on or before June 2, 1981 by August 3, 1981. This 
alternative designation may be made in any manner sufficient to identify 
the shares qualifying for section 1244 treatment. If the corporation 
fails to make a designation by share certificate number or an 
alternative written designation as described, the rules of subparagraph 
(3) of this paragraph (b) apply.
    (3) Allocation of section 1244 benefit in event corporation fails to 
designate qualifying shares. If a corporation issues

[[Page 402]]

post-November 1978 stock in the transitional year and fails to designate 
certain shares of post-November 1978 common stock as section 1244 stock 
in accordance with the rules of subparagraph (2) of this paragraph (b), 
the following rules apply:
    (i) Section 1244 treatment is extended to losses sustained on post-
November 1978 common stock issued for money or other property in taxable 
years before the transitional year and is withheld from losses sustained 
on post-November 1978 stock issued in taxable years after the 
transitional year.
    (ii) Post-1958 capital received before the transitional year is 
subtracted from $1,000,000.
    (iii) Subject to the annual limitation described in Sec.  1.1244(b)-
1, an ordinary loss on post-November 1978 common stock issued for money 
or other property in the transitional year is allowed in an amount which 
bears the same ratio to the total loss sustained by the individual as:
    (A) The amount described in Sec.  1.1244(c)-2(b) (3) (ii) bears to
    (B) The total amount of money and other property received by the 
corporation in exchange for stock, as a contribution to capital, and as 
paid-in surplus in the transitional year.
    (4) Examples. The provisions of this paragraph (b) may be 
illustrated by the following examples:

    Example 1. On December 1, 1978, Corporation W, a newly-formed 
corporation, issues 10,000 shares of common stock at $125 a share for an 
amount (determined under subparagraph (1) of this paragraph (b)) of 
money and other property totaling $1,250,000. The board of directors 
specifies that 8,000 shares are section 1244 stock and records the 
certificate numbers of the qualifying shares in its minutes. Because 
Corporation W issued post-November 1978 common stock in exchange for 
money and other property exceeding $1,000,000, but has designated shares 
of stock as section 1244 stock and the designated shares were issued in 
exchange for money and other property not exceeding $1,000,000 (8,000 
shares x $125 price per share = $1,000,000), the 8,000 designated shares 
qualify as section 1244 stock.
    Example 2. Corporation X comes into existence on June 1, 1979. On 
June 10, 1979, Corporation X issues 2,500 shares of common stock at $250 
per share to shareholder A and 2,500 shares of common stock at $250 per 
share to shareholder B. By written agreement dated September 1, 1981, 
shareholder A and shareholder B determine that 1,500 of shareholder A's 
shares and all of shareholder B's shares will be treated as section 1244 
stock. Although shareholder A's 1,500 shares and shareholder B's 2,500 
shares were issued for money and other property not exceeding $1,000,000 
(4,000 shares x $250 price per share = $1,000,000, these 4,000 shares do 
not qualify as section 1244 stock under the rules of subparagraph (2) of 
this paragraph (b) for three reasons: The agreement of September 1, 
1979, (i) did not identify which 1,500 of shareholder A's 2,500 shares 
were intended to qualify for section 1244 treatment, (ii) was made by 
the shareholders and not by Corporation X, and (iii) was made later than 
the 15th day of the third month following the close of the transitional 
year. However, certain of the shares issued by Corporation X may qualify 
as section 1244 stock under the rules of subparagraph (3) of this 
paragraph (b). See example (4).
    Example 3. On December 1, 1980, Corporation Y issues common stock to 
shareholder A in exchange for $500,000 in cash. On August 1, 1981, 
Corporation Y issues common stock to shareholder B in exchange for 
property having an adjusted basis to Corporation Y of $500,000. On 
December 1, 1981, B transfers a tract of land having a basis in B's 
hands of $250,000 to Corporation Y as a contribution to capital. Under 
section 362(a)(2) of the Code, Corporation Y takes a basis of $250,000 
in the tract of land. Corporation Y is a calendar year corporation. On 
February 15, 1982, it designates all of shareholder B's stock as section 
1244 stock by entering the numbers of the qualifying certificates on the 
corporation's records. The designation made by Corporation Y is 
effective because it identifies which shares of its stock qualify for 
section 1244 treatment, was made in writing before the 15th day of the 
3rd month following the close of the transitional year (1981), and 
because the amount received for designated stock does not exceed 
$1,000,000, less amounts received (i) in exchange for stock in years 
prior to the transitional year; (ii) as contributions to capital in 
years prior to the transitional year; and (iii) as paid-in surplus in 
years prior to the transitional year. Nevertheless, in the event of B's 
sale of his stock at a loss, the increase in basis attributable to his 
December, 1981, contribution to capital will be treated as allocable to 
stock that is not section 1244 stock under Sec.  1.1244(d)-2.
    Example 4. Corporation Z, a newly-formed corporation, issues 10,000 
shares of common stock at $200 per share on July 1, 1979. In exchange 
for its stock Corporation Z receives property (other than stock or 
securities) having a basis to the corporation of $400,000, and 
$1,600,000 in cash, for a total of $2,000,000. Corporation Z fails to 
designate any of the issued shares as section 1244 stock. Shareholder C 
purchases 2,500 shares of the 10,000 shares of Corporation Z stock for 
$500,000 on

[[Page 403]]

July 1, 1979. Subsequently, shareholder C sells the 2,500 shares for 
$400,000. Shareholder C may treat $50,000 of the $100,000 loss as an 
ordinary loss under section 1244. The amount of that loss is computed 
under the rule of subparagraph (3) of this paragraph (b) as follows:

 
        X [C's section 1244 loss]              $1,000,000 [$1,000,000 -0
                                                     = $1,000,000]
                                           =
        $100,000 [C's total loss]              $2,000,000 [total amount
                                              received by Corporation Z]
 
 
                               X = $50,000
 


The remaining $50,000 is not treated as an ordinary loss under section 
1244.
    Example 5. (i) Corporation V, a newly-formed corporation, issues 
common stock to shareholder A and shareholder B on June 15, 1980, in 
exchange for $800,000 in cash ($400,000 from A and $400,000 from B). On 
September 15, 1981, the corporation issues common stock to shareholder C 
in exchange for $600,000 in cash. On January 1, 1982, common stock is 
issued to shareholder D in exchange for $100,000 in cash. Corporation V 
fails to designate any of the issued shares as section 1244 stock. A, B, 
C, and D subsequently sell their Corporation Y stock at a loss.
    (ii) Subject to the annual limitation discussed in Sec.  1.1244(b)-
1, A and B may treat their entire loss as an ordinary loss under section 
1244. D may not treat any part of his loss as an ordinary loss under 
section 1244. Subject to the annual limitation, one-third of the loss 
sustained by shareholder C is treated as an ordinary loss under section 
1244. These results are calculated under the rules of subparagraph (3) 
of this paragraph (b) as follows: First, section 1244 treatment is 
extended to post-November 1978 stock issued to A and B in 1980, a 
taxable year before the transitional year (1981); section 1244 treatment 
is withheld from the stock issued to D in 1982, a taxable year after the 
transitional year. Second $800,000 the amount of post-1958 capital 
received in taxable years before the transitional year, is subtracted 
from $1,000,000 to leave $200,000. Third, subject to the annual 
limitation, an ordinary loss is allowed to C in an amount which bears 
the same ratio to his total loss as the amount calculated in the 
preceding sentence ($200,000) bears to the total amount received by the 
corporation in the transitional year in exchange for stock, as a 
contribution to capital, or as paid-in surplus ($600,000).
    Example 6. Corporation V comes into existence on July 1, 1982. On 
that date it issues 10 shares of voting common stock to shareholder A in 
exchange for $500,000 and 5 shares of voting common stock to shareholder 
B in exchange for $250,000, designating the shares issued to both A and 
B as section 1244 stock. On September 15, 1982, Corporation V receives a 
contribution to capital from shareholders A and B having a basis in 
their hands of $225,000. On February 1, 1983, Corporation V issues one 
share of stock to shareholder C in exchange for $50,000. Corporation V 
may designate one-half of the share issued to shareholder C as section 
1244 stock under Sec.  1.1244(c)-2 (b)(2). In 1982 the corporation 
received $750,000 for stock ($500,000 from A and $250,000 from B) and 
$225,000 as a capital contribution, totaling $975,000 in capital 
receipts. The receipt of $50,000 from shareholder C in exchange for 
stock in 1983 causes capital receipts to exceed $1,000,000 and 1983 thus 
becomes Corporation V's transitional year. Corporation V may receive 
only $25,000 for designated stock in 1983 under the rule set forth in 
Sec.  1.1244 (c)-2 (b)(2)(i), which states that the amount received for 
designated stock shall not exceed $1,000,000, less amounts received (i) 
in exchange for stock in years prior to the transitional year ($750,000 
from A and B), (ii) as contributions to capital in years prior to the 
transitional year ($225,000), and (iii) as paid-in surplus in years 
prior to the transitional year ($0). Thus, one-half of C's share 
(representing the receipt of $25,000) may be designated as section 1244 
stock by Corporation V. In the event of the sale of A's stock or B's 
stock at a loss, the increase in basis attributable to their 
contribution to capital will be treated as allocable to stock that is 
not section 1244 stock under Sec.  1.1244(d)-2.

    (c) Pre-November 1978 stock--(1) Amount received by corporation for 
stock. At the time of the adoption of the plan, the sum of the aggregate 
dollar amount to be paid for pre-November 1978 stock that may be offered 
under the plan plus the aggregate amount of money and other property 
that has been received by the corporation after June 30, 1958, and on or 
before November 6, 1978, for its stock, as a contribution to capital by 
its shareholders, and as paid-in surplus must not exceed $500,000. In 
making these determinations (i) property is taken into account at its 
adjusted basis to the corporation (for determining gain) as of the date 
received by the corporation, and (ii) this aggregate amount is reduced 
by the amount of any liability to which the property was subject and by 
the amount of any liability assumed by the corporation at the time the 
property was received. For purposes of the $500,000 test, the total 
amount of money and other property received for stock, as a contribution 
to capital, and as paid-in surplus is not reduced by distributions to 
shareholders, even though

[[Page 404]]

the distributions may be capital distributions. Thus, once the total 
amount of money and other property received after June 30, 1958, reaches 
$500,000, the corporation is precluded from subsequently issuing pre-
November 1978 stock. For a different rule that applies to post-November 
1978 stock see Sec.  1.1244(c)-2(b).
    (2) Equity capital. The sum of the aggregate dollar amount to be 
paid for pre-November 1978 stock that may be offered under the plan plus 
the equity capital of the corporation (determined on the date of the 
adoption of the plan) may not exceed $1,000,000. For this purpose, 
equity capital is the sum of the corporation's money and other property 
(in an amount equal to its adjusted basis for determining gain) less the 
amount of the corporation's indebtedness to persons other than its 
shareholders.
    (3) Examples. The provisions of this paragraph (c) may be 
illustrated by the following examples:

    Example 1. Corporation W comes into existence on December 1, 1958. 
On that date the corporation may adopt a plan to issue common stock for 
an amount (determined under subparagraph (1) of this paragraph (c)) not 
in excess of $500,000 during a period ending not later than November 30, 
1960. Such corporation will qualify as a small business corporation as 
of the date that the plan is adopted. However, if the corporation adopts 
a plan to issue stock for an amount in excess of $500,000 it is not a 
small business corporation at the time the plan is adopted and no stock 
issued under the plan may qualify as section 1244 stock. If the cost of 
organizing corporation W amounted to $1,000 and constituted paid-in 
surplus or a contribution to capital, such amount must be taken into 
account in determining the amount that may be received under the plan, 
with the result that only $499,000 may be so received.
    Example 2. On December 1, 1958, Corporation X, a newly formed 
corporation, adopts a plan to issue common stock for an amount 
(determined under subparagraph (1) of this paragraph (c)) not in excess 
of $500,000 during a period ending not later than November 30, 1960. By 
January 1, 1960, the corporation has, pursuant to the plan, issued at 
par, stock having an aggregate par value of $400,000, $200,000 of which 
was issued for $200,000 cash, and $200,000 of which was issued for 
property (other than stock or securities) having a basis to the 
corporation of $100,000 and a fair market value of $200,000. The 
corporation may, prior to November 30, 1960, issue stock for an amount 
not in excess of $200,000 cash or property having a basis to it not in 
excess of $200,000. Stock issued for any payment which, alone or 
together with any payments received after January 1, 1960, exceeds such 
$200,000 amount would not qualify as section 1244 stock because it would 
not be issued pursuant to the plan.
    Example 3. Assume that on December 1, 1958, Corporation Y, a newly 
formed corporation, adopts a plan to issue common stock for an amount 
(determined under subparagraph (1) of this paragraph (c)) not in excess 
of $500,000 during a period ending not later than November 30, 1960. By 
January 1960 the corporation has received $400,000 cash for stock issued 
pursuant to the plan, but due to business successes the equity capital 
of the corporation exceeds $1,000,000. Since the equity capital test is 
made as of the date that the plan is adopted, the corporation may still, 
prior to November 30, 1960, issue section 1244 stock pursuant to the 
plan until the full amount specified in the plan has been received.
    Example 4. Subsequent to June 30, 1958, Corporation Z receives a 
total of $600,000 cash on the issuance of its stock. In 1960 Corporation 
Z redeems shares of its stock for the total amount of $300,000 and the 
redemptions reduce Corporation Z's capital to substantially less than 
$500,000. Notwithstanding the redemptions, pre-November 1978 stock 
subsequently issued by Corporation Z will not qualify as section 1244 
stock because the $500,000 limitation has been previously exceeded.

[T.D. 7779, 46 FR 29470, June 2, 1981, as amended by T.D. 7837, 47 FR 
42729, Sept. 29, 1982; 60 FR 16575, Mar. 31, 1995]



Sec.  1.1244(d)-1  Contributions of property having basis in excess of value.

    (a) In general. (1) Section 1244(d)(1) (A) provides a special rule 
which limits the amount of loss on section 1244 stock that may be 
treated as an ordinary loss. This rule applies only when section 1244 
stock is issued by a corporation in exchange for property that, 
immediately before the exchange, has an adjusted basis (for determining 
loss) in excess of its fair market value. If section 1244 stock is 
issued in exchange for such property and the basis of such stock in the 
hands of the taxpayer is determined by reference to the basis of such 
property, then for purposes of section 1244, the basis of such stock 
shall be reduced by an amount equal to the excess, at the time of the 
exchange, of the adjusted basis of the property over its fair market 
value.

[[Page 405]]

    (2) The provisions of section 1244(d) (1)(A) do not affect the basis 
of stock for purposes other than section 1244. Such provisions are to be 
used only in determining the portion of the total loss sustained that 
may be treated as an ordinary loss pursuant to section 1244.
    (b) Transfer of more than one item. If a taxpayer exchanges several 
items of property for stock in a single transaction so that the basis of 
the property transferred is allocated evenly among the shares of stock 
received, the computation under this section should be made by reference 
to the aggregate fair market value and the aggregate basis of the 
property transferred.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. B transfers property with an adjusted basis of $1,000 and 
a fair market value of $250 to a corporation for 10 shares of section 
1244 stock in an exchange that qualifies under section 351. The basis of 
B's stock is $1,000 ($100 per share), but, solely for purposes of 
section 1244, the total basis of the stock must be reduced by $750, the 
excess of the adjusted basis of the property exchanged over its fair 
market value. Thus, the basis of such stock for purposes of section 1244 
is $250 and the basis of each share for such purposes is $25. If B sells 
his 10 shares for $250, he will recognize a loss of $750, all of which 
must be treated as a capital loss. If he sells the 10 shares for $200, 
then $50 of his total loss of $800 will be treated as an ordinary loss 
under section 1244, assuming the various requirements of such section 
are satisfied, and the remaining $750 will be a capital loss.
    Example 2. B owns property with a basis of $20,000. The fair market 
value of the property unencumbered is $15,000 but the property is 
subject to a $2,000 mortgage. B transfers the encumbered property to a 
corporation for 100 shares of section 1244 stock in an exchange that 
qualifies under section 351. The basis of the shares, determined in 
accordance with section 358, is $18,000 or $180 per share, but solely 
for purposes of section 1244 the basis is $13,000 ($130 per share), 
which is its basis for purposes other than section 1244, reduced by 
$5,000, the excess of the adjusted basis, immediately before the 
exchange, of the property transferred over its fair market value.
    Example 3. C transfers business assets to a corporation for 100 
shares of section 1244 stock in an exchange that qualifies under section 
351. The assets transferred are as follows:

------------------------------------------------------------------------
                                                                 Fair
                                                     Basis      market
                                                                 value
------------------------------------------------------------------------
Cash............................................     $10,000     $10,000
Inventory.......................................      15,000      30,000
Depreciable property............................      50,000      20,000
Land............................................      25,000      10,000
                                                 -----------------------
                                                     100,000      70,000
------------------------------------------------------------------------


The basis for the shares received by C is $100,000, which is applied 
$1,000 to each share. However, the basis of the shares for purposes of 
section 1244 is $70,000 ($700 per share), the basis for general purposes 
reduced by $30,000, the excess of the aggregate adjusted basis of the 
property transferred over the aggregate fair market value of such 
property.

[T.D. 6495, 25 FR 9679, Oct. 8, 1960]



Sec.  1.1244(d)-2  Increases in basis of section 1244 stock.

    (a) In general. If subsequent to the time of its issuance there is 
for any reason, including the operation of section 1376(a), an increase 
in the basis of section 1244 stock, such increase shall be treated as 
allocable to stock which is not section 1244 stock. Therefore, a loss on 
stock, the basis of which has been increased subsequent to its issuance, 
must be apportioned between the part that qualifies as section 1244 
stock and the part that does not so qualify. Only the loss apportioned 
to the part that so qualifies may be treated as an ordinary loss 
pursuant to section 1244. The amount of loss apportioned to the part 
that qualifies is the amount which bears the same ratio to the total 
loss as the basis of the stock which is treated as allocated to section 
1244 stock bears to the total basis of the stock.
    (b) Example. The provisions of paragraph (a) of this section may be 
illustrated by the following example:

    Example: For $10,000 a corporation issues 100 shares of section 1244 
stock to X. X later contributes $2,000 to the capital of the corporation 
and this increases the total basis of his 100 shares to $12,000. 
Subsequently, he sells the 100 shares for $9,000. Of the $3,000 loss, 
$2,500 is allocated to the portion of the stock that qualifies as 
section 1244 stock ($10,000/$12,000 of $3,000), and the remaining $500 
is allocated to the portion of the stock that does not so qualify. 
Therefore, to the extent of $2,500, the loss may be treated as an 
ordinary loss assuming the various requirements of section 1244 stock 
are satisfied.

[[Page 406]]

However, the remaining $500 loss must be treated as a capital loss.

[T.D. 6495, 25 FR 9680, Oct. 8, 1960]



Sec.  1.1244(d)-3  Stock dividend, recapitalizations, changes in name, etc.

    (a) In general. Section 1244(c)(1) provides that stock may not 
qualify for the benefits of section 1244 unless it is issued to the 
taxpayer for money or other property not including stock or securities. 
However, section 1244(d)(2) authorizes exceptions to this rule. The 
exceptions may apply in three situations: (1) The receipt of a stock 
dividend; (2) the exchange of stock for stock pursuant to a 
reorganization described in section 368(a)(1)(E); and (3) the exchange 
of stock for stock pursuant to a reorganization described in section 
368(a)(1)(F).
    (b) Stock dividends. (1) If common stock is received by an 
individual or partnership in a nontaxable distribution under section 
305(a) made solely with respect to stock owned by such individual or 
partnership which meets the requirements of section 1244 stock 
determinable at the time of the distribution, then the common stock so 
received will also be treated as meeting such requirements. For purposes 
of this paragraph and paragraphs (c) and (d) of this section, the 
requirements of section 1244 stock determinable at the time of the 
distribution or exchange are all of the requirements of section 
1244(c)(1) other than the one described in subparagraph (C) thereof, 
relating to the gross receipts test.
    (2) If, however, such stock dividend is received by such individual 
or partnership partly with respect to stock meeting the requirements of 
section 1244 stock determinable at the time of the distribution, and 
partly with respect to stock not meeting such requirements, then only 
part of the stock received as a stock dividend will be treated as 
meeting such requirements. Assuming all the shares with respect to which 
the dividend is received have equal rights to dividends, such part is 
the number of shares which bears the same ratio to the total number of 
shares received as the number of shares owned immediately before the 
stock dividend which meets such qualifications bears to the total number 
of shares with respect to which the stock dividend is received. In 
determining the basis of shares received in the stock dividend and of 
the shares held before the stock dividend, section 307 shall apply as if 
two separate nontaxable stock dividends were made, one with respect to 
the shares that meet the requirements and the other with respect to 
shares that do not meet the requirements.
    (3) The provisions of subparagraphs (1) and (2) of this paragraph 
may be illustrated by the following examples:

    Example 1. Corporation X issues 100 shares of its common stock to B 
for $1,000. Subsequently, in a nontaxable stock dividend B receives 5 
more shares of common stock of Corporation X. If the 100 shares meet all 
the requirements of section 1244 stock determinable at the time of the 
distribution of the stock dividend, the 5 additional shares shall also 
be treated as meeting such requirements.
    Example 2. In 1959, Corporation Y issues 100 shares of its common 
stock to C for $1,000 and these shares meet the requirements of section 
1244 stock determinable at the time of the issuance. In 1960, C 
purchases an additional 200 shares of such stock from another 
shareholder for $3,000; however, these shares do not meet the 
requirements of section 1244 stock because they were not originally 
issued to C by the corporation. In 1961, C receives 15 shares of 
Corporation Y common stock as a stock dividend. Of the shares received, 
5 shares, the number received with respect to the 100 shares of stock 
which met the requirements of section 1244 at the time of the 
distribution, i.e., 100/300 x 15, shall also be treated as meeting such 
requirements. The remaining 10 shares do not meet such requirements as 
they are not received with respect to section 1244 stock. The basis of 
such 5 shares is determined by applying section 307 as if the 5 shares 
were received as a separate stock dividend made solely with respect to 
shares that meet the requirements of section 1244 stock at the time of 
the distribution. Thus, the basis of the 5 shares is $47.61 (\5/105\ of 
$1,000).

    (c) Recapitalizations. (1) If, pursuant to a recapitalization 
described in section 368(a)(1)(E), common stock of a corporation is 
received by an individual or partnership in exchange for stock of such 
corporation meeting the requirements of section 1244 stock determinable 
at the time of the exchange, such common stock shall be treated as 
meeting such requirements.
    (2) If common stock is received pursuant to such a recapitalization 
partly

[[Page 407]]

in exchange for stock meeting the requirements of section 1244 stock 
determinable at the time of the exchange and partly in exchange for 
stock not meeting such requirements, then only part of such common stock 
will be treated as meeting such requirements. Such part is the number of 
shares which bears the same ratio to the total number of shares of 
common stock so received as the basis of the shares transferred which 
meet such requirements bears to the basis of all the shares transferred 
for such common stock. The basis allocable, pursuant to section 358, to 
the common stock which is treated as meeting such requirements is 
limited to the basis of stock that meets such requirements transferred 
in the exchange.
    (3) The provisions of subparagraphs (1) and (2) of this paragraph 
may be illustrated by the following examples:

    Example 3. A owns 500 shares of voting common stock of Corporation 
X. Corporation X revises its capital structure to provide for two 
classes of common stock: Class A voting and Class B nonvoting. In a 
recapitalization described in subparagraph (E) of section 368(a)(1). A 
exchanges his 500 shares for 750 shares of Class B nonvoting stock. If 
the 500 shares meet all the requirements of section 1244 stock 
determinable at the time of the exchange, the 750 shares received in the 
exchange are treated as meeting such requirements.
    Example 4. B owns 500 shares of common stock of Corporation X with a 
basis of $5,000, and 100 shares of preferred stock of that corporation 
with a basis of $2,500. Pursuant to a recapitalization described in 
section 368(a)(1)(E), B exchanges all of his shares for 900 shares of 
common stock of Corporation X. The 500 common shares meet the 
requirements of section 1244 stock determinable at the time of the 
exchange, but the 100 preferred shares do not meet such requirements 
since only common stock may qualify. Of the 900 common shares received, 
600 shares ($5,000/$7,500 x 900 shares) are treated as meeting the 
requirements of section 1244 stock at the time of the exchange, because 
they are deemed to be received in exchange for the 500 common shares 
which met such requirements. The remaining 300 shares do not meet such 
requirements as they are not deemed to be received in exchange for 
section 1244 stock. The basis of the 600 shares is $5,000, the basis of 
the relinquished shares meeting the requirements of section 1244.

    (d) Change of name, etc. (1) If, pursuant to a reorganization 
described in section 368(a)(1)(F), common stock of a successor 
corporation is received by an individual or partnership in exchange for 
stock of the predecessor corporation meeting the requirements of section 
1244 stock determinable at the time of the exchange, such common stock 
shall be treated as meeting such requirements. If common stock is 
received pursuant to such a reorganization partly in exchange for stock 
meeting the requirements of section 1244 stock determinable at the time 
of the exchange and partly in exchange for stock not meeting such 
requirements, the principles of paragraph (c)(2) of this section apply 
in determinating the number of shares received which are treated as 
meeting the requirements of section 1244 stock and the basis of those 
shares.
    (2) For purposes of paragraphs (1)(C) and (3)(A) of section 1244(c), 
a successor corporation in a reorganization described in section 
368(a)(1)(F) shall be treated as the same corporation as its 
predecessor.

[T.D. 7779, 46 FR 29472, June 2, 1981]



Sec.  1.1244(d)-4  Net operating loss deduction.

    (a) General rule. For purpose of section 172, relating to the net 
operating loss deduction, any amount of loss that is treated as an 
ordinary loss under section 1244 (taking into account the annual dollar 
limitation of that section) shall be treated as attributable to the 
trade or business of the taxpayer. Therefore, this loss is allowable in 
determining the taxpayer's net operating loss for a taxable year and is 
not subject to the application of section 172(d)(4), relating to 
nonbusiness deductions. A taxpayer may deduct the maximum of ordinary 
loss permitted under section 1244(b) even though all or a portion of the 
taxpayer's net operating loss carryback or carryover for the taxable 
year was, when incurred, a loss on section 1244 stock.
    (b) Example. The provisions of this section may be illustrated by 
the following example:

    Example: A, a single individual, computes a net operating loss of 
$15,000 for 1980 in accordance with the rules of Sec.  1.172-3, relating 
to net operating loss in case of a taxpayer other than a corporation. 
Included within

[[Page 408]]

A's computation of this net operating loss is a deduction arising under 
section 1244 for a loss on small business stock. A had no taxable income 
in 1977, 1978, or 1979. Assume that A can carry over the entire $15,000 
loss under the rules of section 172. In 1981 A has gross income of 
$75,000 and again sustains a loss on section 1244 stock. The amount of 
A's 1981 loss on section 1244 stock is $50,000. A may deduct the full 
$50,000 as an ordinary loss under section 1244 and the full $15,000 as a 
net operating loss carryover in 1981.

[T.D. 7779, 46 FR 29473, June 2, 1981]



Sec.  1.1244(e)-1  Records to be kept.

    (a) By the corporation--(1) Mandatory records. A plan to issue pre-
November 1978 stock must appear upon the records of the corporation. Any 
designation of post-November 1978 stock under Sec.  1.1244(c)-2(b)(2) 
also must appear upon the records of the corporation.
    (2) Discretionary records. In order to substantiate an ordinary loss 
deduction claimed by its shareholders, the corporation should maintain 
records showing the following:
    (i) The persons to whom stock was issued, the date of issuance to 
these persons, and a description of the amount and type of consideration 
received from each;
    (ii) If the consideration received is property, the basis in the 
hands of the shareholder and the fair market value of the property when 
received by the corporation;
    (iii) The amount of money and the basis in the hands of the 
corporation of other property received for its stock, as a contribution 
to capital, and as paid-in surplus;
    (iv) Financial statements of the corporation, such as its income tax 
returns, that identify the source of the gross receipt of the 
corporation for the period consisting of the five most recent taxable 
years of the corporation, or, if the corporation has not been in 
existence for 5 taxable years, for the period of the corporation's 
existence;
    (v) Information relating to any tax-free stock dividend made with 
respect to section 1244 stock and any reorganization in which stock is 
transferred by the corporation in exchange for section 1244 stock; and
    (vi) With respect to pre-November 1978 stock;
    (A) Which certificates represent stock issued under the plan;
    (B) The amount of money and the basis in the hands of the 
corporation of other property received after June 30, 1958, and before 
the adoption of the plan, for its stock, as a contribution to capital, 
and as paid-in surplus; and
    (C) The equity capital of the corporation on the date of adoption of 
the plan.
    (b) By the taxpayer. A person who claims an ordinary loss with 
respect to stock under section 1244 must have records sufficient to 
establish that the taxpayer is entitled to the loss and satisfies the 
requirements of section 1244. See also section 6001, requiring records 
to be maintained.

In addition, a person who owns section 1244 stock in a corporation shall 
maintain records sufficient to distinguish such stock from any other 
stock he may own in the corporation.

[T.D. 6495, 25 FR 9681, Oct. 8, 1960, as amended by T.D. 7779, 46 FR 
29473, June 2, 1981; 46 FR 31881, June 18, 1981; T.D. 8594, 60 FR 20898, 
Apr. 28, 1995]



Sec.  1.1245-1  General rule for treatment of gain from dispositions 
of certain depreciable property.

    (a) General. (1) In general, section 1245(a)(1) provides that, upon 
a disposition of an item of section 1245 property, the amount by which 
the lower of (i) the recomputed basis of the property, or (ii) the 
amount realized on a sale, exchange, or involuntary conversion (or the 
fair market value of the property on any other disposition), exceeds the 
adjusted basis of the property shall be treated as gain from the sale or 
exchange of property which is neither a capital asset nor property 
described in section 1231 (that is, shall be recognized as ordinary 
income). The amount of such gain shall be determined separately for each 
item of section 1245 property. In general, the term recomputed basis 
means the adjusted basis of property plus all adjustments reflected in 
such adjusted basis on account of depreciation allowed or allowable for 
all periods after December 31, 1961. See section 1245(a)(2) and Sec.  
1.1245-2. Generally, the ordinary income treatment applies even though 
in the absence of

[[Page 409]]

section 1245 no gain would be recognized under the Code. For example, if 
a corporation distributes section 1245 property as a dividend, gain may 
be recognized as ordinary income to the corporation even though, in the 
absence of section 1245, section 311(a) would preclude any recognition 
of gain to the corporation. For the definition of section 1245 property, 
see section 1245(a)(3) and Sec.  1.1245-3. For exceptions and 
limitations to the application of section 1245(a)(1), see section 
1245(b) and Sec.  1.1245-4.
    (2) Section 1245(a)(1) applies to dispositions of section 1245 
property in taxable years beginning after December 31, 1962, except 
that:
    (i) In respect of section 1245 property which is an elevator or 
escalator, section 1245(a)(1) applies to dispositions after December 31, 
1963, and
    (ii) In respect of section 1245 property which is livestock 
(described in subparagraph (4) of Sec.  1.1245-3(a)), section 1245(a)(1) 
applies to dispositions made in taxable years beginning after December 
31, 1969, and
    (iii) [Reserved].
    (3) For purposes of this section and Sec. Sec.  1.1245-2 through 
1.1245-6, the term disposition includes a sale in a sale-and-leaseback 
transaction and a transfer upon the foreclosure of a security interest, 
but such term does not include a mere transfer of title to a creditor 
upon creation of a security interest or to a debtor upon termination of 
a security interest. Thus, for example, a disposition occurs upon a sale 
of property pursuant to a conditional sales contract even though the 
seller retains legal title to the property for purposes of security but 
a disposition does not occur when the seller ultimately gives up his 
security interest following payment by the purchaser.
    (4) For purposes of applying section 1245, the facts and 
circumstances of each disposition shall be considered in determining 
what is the appropriate item of section 1245 property. A taxpayer may 
treat any number of units of section 1245 property in any particular 
depreciation account (as defined in Sec.  1.167(a)-7) as one item of 
section 1245 property as long as it is reasonably clear, from the best 
estimates obtainable on the basis of all the facts and circumstances, 
that the amount of gain to which section 1245(a)(1) applies is not less 
than the total of the gain under section 1245(a)(1) which would be 
computed separately for each unit. Thus, for example, if 50 units of 
section 1245 property X, 25 units of section 1245 property Y, and other 
property are accounted for in one depreciation account, and if each such 
unit is sold at a gain in one transaction in which the total gain 
realized on the sale exceeds the sum of the adjustments reflected in the 
adjusted basis (as defined in paragraph (a)(2) of Sec.  1.1245-2) of 
each such unit on account of depreciation allowed or allowable for 
periods after December 31, 1961, all 75 units may be treated as one item 
of section 1245 property. If, however, 5 such units of section 1245 
property Y were sold at a loss, then only 70 of such units (50 of X plus 
the 20 of Y sold at a gain) may be treated as one item of section 1245 
property.
    (5) In case of a sale, exchange, or involuntary conversion of 
section 1245 and non-section 1245 property in one transaction, the total 
amount realized upon the disposition shall be allocated between the 
section 1245 property and the non-section 1245 property in proportion to 
their respective fair market values. In general, if a buyer and seller 
have adverse interests as to the allocation of the amount realized 
between the section 1245 property and the non-section 1245 property, any 
arm's length agreement between the buyer and the seller will establish 
the allocation. In the absence of such an agreement, the allocation 
shall be made by taking into account the appropriate facts and 
circumstances. Some of the facts and circumstances which shall be taken 
into account to the extent appropriate include, but are not limited to, 
a comparison between the section 1245 property and all the property 
disposed of in such transaction of (i) the original cost and 
reproduction cost of construction, erection, or production, (ii) the 
remaining economic useful life, (iii) state of obsolescence, and (iv) 
anticipated expenditures to maintain, renovate, or to modernize.
    (b) Sale, exchange, or involuntary conversion. (1) In the case of a 
sale, exchange, or involuntary conversion of section 1245 property, the 
gain to which

[[Page 410]]

section 1245(a)(1) applies is the amount by which (i) the lower of the 
amount realized upon the disposition of the property or the recomputed 
basis of the property, exceeds (ii) the adjusted basis of the property.
    (2) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. On January 1, 1964, Brown purchases section 1245 property 
for use in his manufacturing business. The property has a basis for 
depreciation of $3,300. After taking depreciation deductions of $1,300 
(the amount allowable), Brown realizes after selling expenses the amount 
of $2,900 upon sale of the property on January 1, 1969. Brown's gain is 
$900 ($2,900 amount realized minus $2,000 adjusted basis). Since the 
amount realized upon disposition of the property ($2,900) is lower than 
its recomputed basis ($3,300, i.e., $2,000 adjusted basis plus $1,300 in 
depreciation deductions), the entire gain is treated as ordinary income 
under section 1245(a)(1) and not as gain from the sale or exchange of 
property described in section 1231.
    Example 2. Assume the same facts as in example (1) except that Brown 
exchanges the section 1245 property for land which has a fair market 
value of $3,700, thereby realizing a gain of $1,700 ($3,700 amount 
realized minus $2,000 adjusted basis). Since the recomputed basis of the 
property ($3,300) is lower than the amount realized upon its disposition 
($3,700), the excess of recomputed basis over adjusted basis, or $1,300, 
is treated as ordinary income under section 1245(a)(1). The remaining 
$400 of the gain may be treated as gain from the sale or exchange of 
property described in section 1231.

    (c) Other dispositions. (1) In the case of a disposition of section 
1245 property other than by way of a sale, exchange, or involuntary 
conversion, the gain to which section 1245(a)(1) applies is the amount 
by which (i) the lower of the fair market value of the property on the 
date of disposition or the recomputed basis of the property, exceeds 
(ii) the adjusted basis of the property. If property is transferred by a 
corporation to a shareholder for an amount less than its fair market 
value in a sale or exchange, for purposes of applying section 1245 such 
transfer shall be treated as a disposition other than by way of a sale, 
exchange, or involuntary conversion.
    (2) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. X Corporation distributes section 1245 property to its 
shareholders as a dividend. The property has an adjusted basis of $2,000 
to the corporation, a recomputed basis of $3,300, and a fair market 
value of $3,100. Since the fair market value of the property ($3,100) is 
lower than its recomputed basis ($3,300), the excess of fair market 
value over adjusted basis, or $1,100, is treated under section 
1245(a)(1) as ordinary income to the corporation even though, in the 
absence of section 1245, section 311(a) would preclude recognition of 
gain to the corporation.
    Example 2. Assume the same facts as in example (1) except that X 
Corporation distributes the section 1245 property to its shareholders in 
complete liquidation of the corporation. Assume further that section 
1245(b)(3) does not apply and that the fair market value of the property 
is $3,800 at the time of the distribution. Since the recomputed basis of 
the property ($3,300) is lower than its fair market value ($3,800), the 
excess of recomputed basis over adjusted basis, or $1,300, is treated 
under section 1245(a)(1) as ordinary income to the corporation even 
though, in the absence of section 1245, section 336 would preclude 
recognition of gain to the corporation.

    (d) Losses. Section 1245(a)(1) does not apply to losses. Thus, 
section 1245(a)(1) does not apply if a loss is realized upon a sale, 
exchange, or involuntary conversion of property, all of which is 
considered section 1245 property, nor does the section apply to a 
disposition of such property other than by way of sale, exchange, or 
involuntary conversion if at the time of the disposition the fair market 
value of such property is not greater than its adjusted basis.
    (e) Treatment of partnership and partners. (1) The manner of 
determining the amount of gain recognized under section 1245(a)(1) to a 
partnership may be illustrated by the following example:

    Example: A partnership sells for $63 section 1245 property which has 
an adjusted basis to the partnership of $30 and a recomputed basis to 
the partnership of $60. The partnership recognizes under section 
1245(a)(1) gain of $30, i.e., the lower of the amount realized ($63) or 
recomputed basis ($60), minus adjusted basis ($30). This result would 
not be changed if one or more partners had, in respect of the property, 
a special basis adjustment described in section 743(b) or had taken 
depreciation deductions in respect of such special basis adjustment.

    (2)(i) Unless paragraph (e)(3) of this section applies, a partner's 
distributive share of gain recognized under section

[[Page 411]]

1245(a)(1) by the partnership is equal to the lesser of the partner's 
share of total gain from the disposition of the property (gain 
limitation) or the partner's share of depreciation or amortization with 
respect to the property (as determined under paragraph (e)(2)(ii) of 
this section). Any gain recognized under section 1245(a)(1) by the 
partnership that is not allocated under the first sentence of this 
paragraph (e)(2)(i) (excess depreciation recapture) is allocated among 
the partners whose shares of total gain from the disposition of the 
property exceed their shares of depreciation or amortization with 
respect to the property. Excess depreciation recapture is allocated 
among those partners in proportion to their relative shares of the total 
gain (including gain recognized under section 1245(a)(1)) from the 
disposition of the property that is allocated to the partners who are 
not subject to the gain limitation. See Example 2 of paragraph 
(e)(2)(iii) of this section.
    (ii)(A) Subject to the adjustments described in paragraphs 
(e)(2)(ii)(B) and (e)(2)(ii)(C) of this section, a partner's share of 
depreciation or amortization with respect to property equals the total 
amount of allowed or allowable depreciation or amortization previously 
allocated to that partner with respect to the property.
    (B) If a partner transfers a partnership interest, a share of 
depreciation or amortization must be allocated to the transferee partner 
as it would have been allocated to the transferor partner. If the 
partner transfers a portion of the partnership interest, a share of 
depreciation or amortization proportionate to the interest transferred 
must be allocated to the transferee partner.
    (C)(1) A partner's share of depreciation or amortization with 
respect to property contributed by the partner includes the amount of 
depreciation or amortization allowed or allowable to the partner for the 
period before the property is contributed.
    (2) A partner's share of depreciation or amortization with respect 
to property contributed by a partner is adjusted to account for any 
curative allocations. (See Sec.  1.704-3(c) for a description of the 
traditional method with curative allocations.) The contributing 
partner's share of depreciation or amortization with respect to the 
contributed property is decreased (but not below zero) by the amount of 
any curative allocation of ordinary income to the contributing partner 
with respect to that property and by the amount of any curative 
allocation of deduction or loss (other than capital loss) to the 
noncontributing partners with respect to that property. A 
noncontributing partner's share of depreciation or amortization with 
respect to the contributed property is increased by the noncontributing 
partner's share of any curative allocation of ordinary income to the 
contributing partner with respect to that property and by the amount of 
any curative allocation of deduction or loss (other than capital loss) 
to the noncontributing partner with respect to that property. The 
partners' shares of depreciation or amortization with respect to 
property from which curative allocations of depreciation or amortization 
are taken is determined without regard to those curative allocations. 
See Example 3(iii) of paragraph (e)(2)(iii) of this section.
    (3) A partner's share of depreciation or amortization with respect 
to property contributed by a partner is adjusted to account for any 
remedial allocations. (See Sec.  1.704-3(d) for a description of the 
remedial allocation method.) The contributing partner's share of 
depreciation or amortization with respect to the contributed property is 
decreased (but not below zero) by the amount of any remedial allocation 
of income to the contributing partner with respect to that property. A 
noncontributing partner's share of depreciation or amortization with 
respect to the contributed property is increased by the amount of any 
remedial allocation of depreciation or amortization to the 
noncontributing partner with respect to that property. See Example 3(iv) 
of paragraph (e)(2)(iii) of this section.
    (4) If, under paragraphs (e)(2)(ii)(C)(2) and (e)(2)(ii)(C)(3) of 
this section, the partners' shares of depreciation or amortization with 
respect to a contributed property exceed the adjustments reflected in 
the adjusted basis of the

[[Page 412]]

property under Sec.  1.1245-2(a) at the partnership level, then the 
partnership's gain recognized under section 1245(a)(1) with respect to 
that property is allocated among the partners in proportion to their 
relative shares of depreciation or amortization (subject to any gain 
limitation that might apply).
    (5) This paragraph (e)(2)(ii)(C) also applies in determining a 
partner's share of depreciation or amortization with respect to property 
for which differences between book value and adjusted tax basis are 
created when a partnership revalues partnership property pursuant to 
Sec.  1.704-1(b)(2)(iv)(f).
    (iii) Examples. The application of this paragraph (e)(2) may be 
illustrated by the following examples:

    Example 1. Recapture allocations. (i) Facts. A and B each contribute 
$5,000 cash to form AB, a general partnership. The partnership agreement 
provides that depreciation deductions will be allocated 90 percent to A 
and 10 percent to B, and, on the sale of depreciable property, A will 
first be allocated gain to the extent necessary to equalize A's and B's 
capital accounts. Any remaining gain will be allocated 50 percent to A 
and 50 percent to B. In its first year of operations, AB purchases 
depreciable equipment for $5,000. AB depreciates the equipment over its 
5-year recovery period and elects to use the straight-line method. In 
its first year of operations, AB's operating income equals its expenses 
(other than depreciation). (To simplify this example, AB's depreciation 
deductions are determined without regard to any first-year depreciation 
conventions.)
    (ii) Year 1. In its first year of operations, AB has $1,000 of 
depreciation from the partnership equipment. In accordance with the 
partnership agreement, AB allocates 90 percent ($900) of the 
depreciation to A and 10 percent ($100) of the depreciation to B. At the 
end of the year, AB sells the equipment for $5,200, recognizing $1,200 
of gain ($5,200 amount realized less $4,000 adjusted tax basis). In 
accordance with the partnership agreement, the first $800 of gain is 
allocated to A to equalize the partners' capital accounts, and the 
remaining $400 of gain is allocated $200 to A and $200 to B.
    (iii) Recapture allocations. $1,000 of the gain from the sale of the 
equipment is treated as section 1245(a)(1) gain. Under paragraph 
(e)(2)(i) of this section, each partner's share of the section 
1245(a)(1) gain is equal to the lesser of the partner's share of total 
gain recognized on the sale of the equipment or the partner's share of 
total depreciation with respect to the equipment. Thus, A's share of the 
section 1245(a)(1) gain is $900 (the lesser of A's share of the total 
gain ($1,000) and A's share of depreciation ($900)). B's share of the 
section 1245(a)(1) gain is $100 (the lesser of B's share of the total 
gain ($200) and B's share of depreciation ($100)). Accordingly, $900 of 
the $1,000 of total gain allocated to A is treated as ordinary income 
and $100 of the $200 of total gain allocated to B is treated as ordinary 
income.
    Example 2. Recapture allocation subject to gain limitation. (i) 
Facts. A, B, and C form general partnership ABC. The partnership 
agreement provides that depreciation deductions will be allocated 
equally among the partners, but that gain from the sale of depreciable 
property will be allocated 75 percent to A and 25 percent to B. ABC 
purchases depreciable personal property for $300 and subsequently 
allocates $100 of depreciation deductions each to A, B, and C, reducing 
the adjusted tax basis of the property to $0. ABC then sells the 
property for $440. ABC allocates $330 of the gain to A (75 percent of 
$440) and allocates $110 of the gain to B (25 percent of $440). No gain 
is allocated to C.
    (ii) Application of gain limitation. Each partner's share of 
depreciation with respect to the property is $100. C's share of the 
total gain from the disposition of the property, however, is $0. As a 
result, under the gain limitation provision in paragraph (e)(2)(i) of 
this section, C's share of section 1245(a)(1) gain is limited to $0.
    (iii) Excess depreciation recapture. Under paragraph (e)(2)(i) of 
this section, the $100 of section 1245(a)(1) gain that cannot be 
allocated to C under the gain limitation provision (excess depreciation 
recapture) is allocated to A and B (the partners not subject to the gain 
limitation at the time of the allocation) in proportion to their 
relative shares of total gain from the disposition of the property. A's 
relative share of the total gain allocated to A and B is 75 percent 
($330 of $440 total gain). B's relative share of the total gain 
allocated to A and B is 25 percent ($110 of $440 total gain). However, 
under the gain limitation provision of paragraph (e)(2)(i) of this 
section, B cannot be allocated 25 percent of the excess depreciation 
recapture ($25) because that would result in a total allocation of $125 
of depreciation recapture to B (a $100 allocation equal to B's share of 
depreciation plus a $25 allocation of excess depreciation recapture), 
which is in excess of B's share of the total gain from the disposition 
of the property ($110). Therefore, only $10 of excess depreciation 
recapture is allocated to B and the remaining $90 of excess depreciation 
recapture is allocated to A. A is not subject to the gain limitation 
because A's share of the total gain ($330) still exceeds A's share of 
section 1245(a)(1) gain ($190). Accordingly, all $110 of the total gain 
allocated to B is treated as ordinary income ($100 share of depreciation 
allocated to B plus $10 of excess depreciation recapture) and $190 of 
the total

[[Page 413]]

gain allocated to A is treated as ordinary income ($100 share of 
depreciation allocated to A plus $90 of excess depreciation recapture).
    Example 3. Determination of partners' shares of depreciation with 
respect to contributed property. (i) Facts.C and D form partnership CD 
as equal partners. C contributes depreciable personal property C1 with 
an adjusted tax basis of $800 and a fair market value of $2,800. Prior 
to the contribution, C claimed $200 of depreciation from C1. At the time 
of the contribution, C1 is depreciable under the straight-line method 
and has four years remaining on its 5-year recovery period. D 
contributes $2,800 cash, which CD uses to purchase depreciable personal 
property D1, which is depreciable over seven years under the straight-
line method. (To simplify the example, all depreciation is determined 
without regard to any first-year depreciation conventions.)
    (ii) Traditional method. C1 generates $700 of book depreciation (\1/
4\ of $2,800 book value) and $200 of tax depreciation (\1/4\ of $800 
adjusted tax basis) each year. C and D will each be allocated $350 of 
book depreciation from C1 in year 1. Under the traditional method of 
making section 704(c) allocations, D will be allocated the entire $200 
of tax depreciation from C1 in year 1. D1 generates $400 of book and tax 
depreciation each year (\1/7\ of $2,800 book value and adjusted tax 
basis). C and D will each be allocated $200 of book and tax depreciation 
from D1 in year 1. As a result, after the first year of partnership 
operations, C's share of depreciation with respect to C1 is $200 (the 
depreciation taken by C prior to contribution) and D's share of 
depreciation with respect to C1 is $200 (the amount of tax depreciation 
allocated to D). C and D each have a $200 share of depreciation with 
respect to D1. At the end of four years, C's share of depreciation with 
respect to C1 will be $200 (the depreciation taken by C prior to 
contribution) and D's share of depreciation with respect to C1 will be 
$800 (four years of $200 depreciation per year). At the end of four 
years, C and D will each have an $800 share of depreciation with respect 
to D1 (four years of $200 depreciation per year).
    (iii) Effect of curative allocations. (A) Year 1. If the partnership 
elects to make curative allocations under Sec.  1.704-3(c) using 
depreciation from D1, the results will be the same as under the 
traditional method, except that $150 of the $200 of tax depreciation 
from D1 that would be allocated to C under the traditional method will 
be allocated to D as additional depreciation with respect to C1. As a 
result, after the first year of partnership operations, C's share of 
depreciation with respect to C1 will be reduced to $50 (the total 
depreciation taken by C prior to contribution ($200) decreased by the 
amount of the curative allocation to D ($150)). D's share of 
depreciation with respect to C1 will be $350 (the depreciation allocated 
to D under the traditional method ($200) increased by the amount of the 
curative allocation to D ($150)). C and D will each have a $200 share of 
depreciation with respect to D1.
    (B) Year 4. At the end of four years, C's share of depreciation with 
respect to C1 will be reduced to $0 (the total depreciation taken by C 
prior to contribution ($200) decreased, but not below zero, by the 
amount of the curative allocations to D ($600)), and D's share of 
depreciation with respect to C1 will be $1,400 (the total depreciation 
allocated to D under the traditional method ($800) increased by the 
amount of the curative allocations to D ($600)). However, CD's section 
1245(a)(1) gain with respect to C1 will not be more than $1,000 (CD's 
tax depreciation ($800) plus C's tax depreciation prior to contribution 
($200)). Under paragraph (e)(2)(ii)(C)(4) of this section, because the 
partners' shares of depreciation with respect to C1 exceed the 
adjustments reflected in the property's adjusted basis, CD's section 
1245(a)(1) gain will be allocated in proportion to the partners' 
relative shares of depreciation with respect to C1. Because C's share of 
depreciation with respect to C1 is $0, and D's share of depreciation 
with respect to C1 is $1,400, all of CD's $1,000 of section 1245(a)(1) 
gain will be allocated to D. At the end of four years, C and D will each 
have an $800 share of depreciation with respect to D1 (four years of 
$200 depreciation per year).
    (iv) Effect of remedial allocations. (A) Year 1. If the partnership 
elects to make remedial allocations under Sec.  1.704-3(d), there will 
be $600 of book depreciation from C1 in year 1. (Under the remedial 
allocation method, the amount by which C1's book basis ($2,800) exceeds 
its tax basis ($800) is depreciated over a 5-year life, rather than a 4-
year life.) C and D will each be allocated one-half ($300) of the total 
book depreciation. As under the traditional method, D will be allocated 
all $200 of tax depreciation from C1. Because the ceiling rule would 
cause a disparity of $100 between D's book and tax allocations of 
depreciation, D will also receive a $100 remedial allocation of 
depreciation with respect to C1, and C will receive a $100 remedial 
allocation of income with respect to C1. As a result, after the first 
year of partnership operations, D's share of depreciation with respect 
to C1 is $300 (the depreciation allocated to D under the traditional 
method ($200) increased by the amount of the remedial allocation 
($100)). C's share of depreciation with respect to C1 is $100 (the total 
depreciation taken by C prior to contribution ($200) decreased by the 
amount of the remedial allocation of income ($100)). C and D will each 
have a $200 share of depreciation with respect to D1.
    (B) Year 5. At the end of five years, C's share of depreciation with 
respect to C1 will be $0 (the total depreciation taken by C prior to 
contribution ($200) decreased, but not

[[Page 414]]

below zero, by the total amount of the remedial allocations of income to 
C ($600)). D's share of depreciation with respect to C1 will be $1,400 
(the total depreciation allocated to D under the traditional method 
($800) increased by the total amount of the remedial allocations of 
depreciation to D ($600)). However, CD's section 1245(a)(1) gain with 
respect to C1 will not be more than $1,000 (CD's tax depreciation ($800) 
plus C's tax depreciation prior to contribution ($200)). Under paragraph 
(e)(2)(ii)(C)(4) of this section, because the partners' shares of 
depreciation with respect to C1 exceed the adjustments reflected in the 
property's adjusted basis, CD's section 1245(a)(1) gain will be 
allocated in proportion to the partners' relative shares of depreciation 
with respect to C1. Because C's share of depreciation with respect to C1 
is $0, and D's share of depreciation with respect to C1 is $1,400, all 
of CD's $1,000 of section 1245(a)(1) gain will be allocated to D. At the 
end of five years, C and D will each have a $1,000 share of depreciation 
with respect to D1 (five years of $200 depreciation per year).

    (iv) Effective date. This paragraph (e)(2) is effective for 
properties acquired by a partnership on or after August 20, 1997. 
However, partnerships may rely on this paragraph (e)(2) for properties 
acquired before August 20, 1997 and disposed of on or after August 20, 
1997.
    (3)(i) If (a) a partner had a special basis adjustment under section 
743(b) in respect of section 1245 property, or (b) on the date he 
acquired his partnership interest by way of a sale or exchange (or upon 
death of another partner) the partnership owned section 1245 property 
and an election under section 754 (relating to optional adjustment to 
basis of partnership property) was in effect with respect to the 
partnership, then the amount of gain recognized under section 1245(a)(1) 
by him upon a disposition by the partnership of such property shall be 
determined under this subparagraph.
    (ii) There shall be allocated to such partner, in the same 
proportion as the partnership's total gain is allocated to him as his 
distributive share under section 704, a portion of (a) the common 
partnership adjusted basis for the property, and (b) the amount realized 
by the partnership upon the disposition, or, if nothing is realized, the 
fair market value of the property. There shall also be allocated to him, 
in the same proportion as the partnership's gain recognized under 
section 1245(a)(1) is allocated under subparagraph (2) of this paragraph 
as his distributive share of such gain, a portion of the adjustments 
reflected in the adjusted basis (as defined in paragraph (a)(2) of Sec.  
1.1245-2) of such property. If on the date he acquired his partnership 
interest by way of a sale or exchange the partnership owned such 
property and an election under section 754 was in effect, then for 
purposes of the preceding sentence the amount of the adjustments 
reflected in the adjusted basis of such property on such date shall be 
deemed to be zero. For special rules relating to the amount of 
adjustments reflected in the adjusted basis of property after 
partnership transactions, see paragraph (c)(6) of Sec.  1.1245-2.
    (iii) The partner's adjusted basis in respect of the property shall 
be deemed to be (a) the portion of the partnership's adjusted basis for 
the property allocated to the partner under subdivision (ii) of this 
subparagraph, (b) increased by the amount of any special basis 
adjustment described in section 743(b)(1) (or decreased by the amount of 
any special basis adjustment described in section 743(b)(2) which the 
partner may have in respect of the property on the date the partnership 
disposed of the property.
    (iv) The partner's recomputed basis in respect of the property shall 
be deemed to be (a) the sum of the partner's adjusted basis for the 
property, as determined in subdivision (iii) of this subparagraph, plus 
the amount of the adjustments reflected in the adjusted basis (as 
defined in paragraph (a)(2) of Sec.  1.1245-2) for the property 
allocated to the partner under subdivision (ii) of this subparagraph, 
(b) increased by the amount by which any special basis adjustment 
described in section 743(b)(1) (or decreased by the amount by which any 
special basis adjustment described in section 743(b)(2)) in respect of 
the property was reduced, but only to the extent such amount was applied 
to adjust the amount of the deductions allowed or allowable to the 
partner for depreciation or amortization of section 1245 property 
attributable to periods referred to in paragraph (a)(2) of Sec.  1.1245-
2. The terms allowed or allowable, depreciation or amortization, and 
attributable to periods shall have the

[[Page 415]]

meanings assigned to these terms in paragraph (a) of Sec.  1.1245-2.
    (4) The application of subparagraph (3) of this paragraph may be 
illustrated by the following example:

    Example: A, B, and C each hold a one-third interest in calendar year 
partnership ABC. On December 31, 1962, the firm holds section 1245 
property which has an adjusted basis of $30,000 and a recomputed basis 
of $33,000. Depreciation deductions in respect of the property for 1962 
were $3,000. On January 1, 1963, when D purchases C's partnership 
interest, the election under section 754 is in effect and a $5,000 
special basis adjustment is made in respect of D to his one-third share 
of the common partnership adjusted basis for the property. For 1963 and 
1964 the partnership deducts $6,000 as depreciation in respect of the 
property, thereby reducing its adjusted basis to $24,000, and D deducts 
$2,800, i.e., his distributive share of partnership depreciation 
($2,000) plus depreciation in respect of his special basis adjustment 
($800). On March 15, 1965, the partnership sells the property for 
$48,000. Since the partnership's recomputed basis for the property 
($33,000, i.e., $24,000 adjusted basis plus $9,000 in depreciation 
deductions) is lower than the amount realized upon the sale ($48,000), 
the excess of recomputed basis over adjusted basis, or $9,000, is 
treated as partnership gain under section 1245(a)(1). D's distributive 
share of such gain is $3,000 (\1/3\ of $9,000). However, the amount of 
gain recognized by D under section 1245 (a)(1) is only $2,800, 
determined as follows:

(1) Adjusted basis:
  D's portion of partnership adjusted basis (\1/      $8,000
   3\ of $24,000)...............................
  D's special basis adjustment as of December          4,200
   31, 1964 ($5,000 minus $800).................
    D's adjusted basis..........................  ..........     $12,200
                                                 ------------
(2) Recomputed basis:
  D's adjusted basis............................      12,200
  D's portion of partnership depreciation for          2,000
   1963 and 1964, i.e., for periods after he
   acquired his partnership interest (\1/3\ of
   $6,000)......................................
  Depreciation for 1963 and 1964 in respect of           800
   D's special basis adjustment.................
      D's recomputed basis......................
                                                 ============
                                                  ..........      15,000
(3) D's portion of amount realized by partnership (\1/3\ of       16,000
 $48,000)...................................................
(4) Gain recognized to D under section 1245(a)(1), i.e., the       2,800
 lower of (2) or (3), minus (1).............................
 


[T.D. 6832, 30 FR 8576, July 7, 1965, as amended by T.D. 7084, 36 FR 
268, Jan. 8, 1971; T.D. 7141, 36 FR 18793, Sept. 22, 1971; T.D. 8730, 62 
FR 44216, Aug. 20, 1997]



Sec.  1.1245-2  Definition of recomputed basis.

    (a) General rule--(1) Recomputed basis defined. The term recomputed 
basis means, with respect to any property, an amount equal to the sum 
of:
    (i) The adjusted basis of the property, as defined in section 1011, 
plus
    (ii) The amount of the adjustments reflected in the adjusted basis.
    (2) Definition of adjustments reflected in adjusted basis. The term 
adjustments reflected in the adjusted basis means:
    (i) With respect to any property other than property described in 
subdivision (ii), (iii), or (iv) of this subparagraph, the amount of the 
adjustments attributable to periods after December 31, 1961,
    (ii) With respect to an elevator or escalator, the amount of the 
adjustments attributable to periods after June 30, 1963,
    (iii) With respect to livestock (described in subparagraph (4) of 
Sec.  1.1245-3(a)), the amount of the adjustments attributable to 
periods after December 31, 1969, or
    (iv) [Reserved]

which are reflected in the adjusted basis of such property on account of 
deductions allowed or allowable for depreciation or amortization (within 
the meaning of subparagraph (3) of this paragraph). For cases where the 
taxpayer can establish that the amount allowed for any period was less 
than the amount allowable, see subparagraph (7) of this paragraph. For 
determination of adjusted basis of property in a multiple asset account, 
see paragraph (c)(3) of Sec.  1.167(a)-8.
    (3) Meaning of depreciation or amortization. (i) For purposes of 
subparagraph (2) of this paragraph, the term depreciation or 
amortization includes allowances (and amounts treated as allowances) for 
depreciation (or amortization in lieu thereof), and deductions for 
amortization of emergency facilities under section 168. Thus, for 
example, such term includes a reasonable allowance for exhaustion, wear 
and tear (including a reasonable allowance for obsolescence) under 
section 167, an expense allowance (additional first-year depreciation 
allowance for property placed in service before January 1, 1981), under 
section 179, an expenditure treated as

[[Page 416]]

an amount allowed under section 167 by reason of the application of 
section 182(d)(2)(B) (relating to expenditures by farmers for clearing 
land), and a deduction for depreciation of improvements under section 
611 (relating to depletion). For further examples, the term depreciation 
or amortization includes periodic deductions referred to in Sec.  1.162-
11 in respect of a specified sum paid for the acquisition of a leasehold 
and in respect of the cost to a lessee of improvements on property of 
which he is the lessee. However, such term does not include deductions 
for the periodic payment of rent.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: On January 1, 1966, Smith purchases for $1,000, and places 
in service, an item of property described in section 1245(a) (3)(A). 
Smith deducts an additional first-year allowance for depreciation under 
section 179 of $200. Accordingly, the basis of the property for purposes 
of depreciation is $800 on January 1, 1966. Between that date and 
January 1, 1974, Smith deducts $640 in depreciation (the amount 
allowable) with respect to the property, thereby reducing its adjusted 
basis to $160. Since this adjusted basis reflects deductions for 
depreciation and amortization (within the meaning of this subparagraph) 
amounting to $840 ($200 plus $640), the recomputed basis of the property 
is $1,000 ($160 plus $840).

    (4) Adjustments of other taxpayers or in respect of other property. 
(i) For purposes of subparagraph (2) of this paragraph, the adjustments 
reflected in adjusted basis on account of depreciation or amortization 
which must be taken into account in determining recomputed basis are not 
limited to those adjustments on account of depreciation or amortization 
with respect to the property disposed of, nor are such adjustments 
limited to those on account of depreciation or amortization allowed or 
allowable to the taxpayer disposing of such property. Except as provided 
in subparagraph (7) of this paragraph, all such adjustments are taken 
into account, whether the deductions were allowed or allowable in 
respect of the same or other property and whether to the taxpayer or to 
any other person. For manner of determining the amount of adjustments 
reflected in the adjusted basis of property immediately after certain 
dispositions, see paragraph (c) of this section.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: On January 1, 1966, Jones purchases machine X for use in 
his trade or business. The machine, which is section 1245 property, has 
a basis for depreciation of $10,000. After taking depreciation 
deductions of $2,000 (the amount allowable), Jones transfers the machine 
to his son as a gift on January 1, 1968. Since the exception for gifts 
in section 1245(b)(1) applies, Jones does not recognize gain under 
section 1245(a)(1). The son's adjusted basis for the machine is $8,000. 
On January 1, 1969, after taking a depreciation deduction of $1,000 (the 
amount allowable), the son exchanges machine X for machine Y in a like 
kind exchange described in section 1031. Since the exception for like 
kind exchanges in section 1245(b)(4) applies, the son does not recognize 
gain under section 1245(a)(1). The son's adjusted basis for machine Y is 
$7,000. In 1969, the son takes a depreciation deduction of $1,000 (the 
amount allowable) in respect of machine Y. The son sells machine Y on 
June 30, 1970. No depreciation was allowed or allowable for 1970, the 
year of the sale. The recomputed basis of machine Y on June 30, 1970, is 
determined in the following manner:

Adjusted basis..................................      $6,000
Adjustments reflected in the adjusted basis:
Depreciation deducted by Jones for 1966 and 1967       2,000
 on machine X...................................
Depreciation deducted by son for 1968 on machine       1,000
 X..............................................
Depreciation deducted by son for 1969 on machine       1,000
 Y..............................................
    Total adjustments reflected in the adjusted basis.......      $4,000
                                                 -------------
    Recomputed basis........................................      10,000
 

    (5) Adjustments reflected in adjusted basis of property described in 
section 1245(a)(3)(B). For purposes of subparagraph (2) of this 
paragraph, the adjustments reflected in the adjusted basis of property 
described in section 1245(a)(3)(B), on account of depreciation or 
amortization which must be taken into account in determining recomputed 
basis, may include deductions attributable to periods during which the 
property is not used as an integral part of an activity, or does not 
constitute a facility, specified in section 1245(a)(3)(B) (i) or (ii). 
Thus, for example, if depreciation deductions taken with respect to such 
property after December 31, 1961, amount to

[[Page 417]]

$10,000 (the amount allowable), of which $6,000 is attributable to 
periods during which the property is used as an integral part of a 
specified activity or constitutes a specified facility, then the entire 
$10,000 of depreciation deductions are adjustments reflected in the 
adjusted basis for purposes of determining recomputed basis. Moreover, 
if the property was never so used but was acquired in a transaction to 
which section 1245(b)(4) (relating to like kind exchanges and 
involuntary conversions) applies, and if by reason of the application of 
paragraph (d)(3) of Sec.  1.1245-4 the property is considered as section 
1245 property described in section 1245(a)(3)(B), then the entire 
$10,000 of depreciation deductions would also be adjustments reflected 
in the adjusted basis for purposes of determining recomputed basis.
    (6) Allocation of adjustments attributable to periods after certain 
dates. (i) For purposes of determining recomputed basis, the amount of 
adjustments reflected in the adjusted basis of property other than 
property described in subparagraph (2) (ii), (iii), or (iv) of this 
paragraph are limited to adjustments attributable to periods after 
December 31, 1961. Accordingly, if depreciation deducted with respect to 
such property of a calendar year taxpayer is $1,000 a year (the amount 
allowable) for each of 10 years beginning with 1956, only the 
depreciation deducted in 1962 and succeeding years shall be treated as 
reflected in the adjusted basis for purposes of determining recomputed 
basis. With respect to a taxable year beginning in 1961 and ending in 
1962, the deduction for depreciation or amortization shall be 
ascertained by applying the principles stated in paragraph (c)(3) of 
Sec.  1.167(a)-8 (relating to determination of adjusted basis of retired 
asset). The amount of the deduction, determined in such manner, shall be 
allocated on a daily basis in order to determine the portion thereof 
which is attributable to a period after December 31, 1961. Thus, for 
example, if a taxpayer, whose fiscal year ends on May 31, 1962, acquires 
section 1245 property on November 12, 1961, and the deduction for 
depreciation attributable to the property for such fiscal year is 
ascertained (under the principles of paragraph (c)(3) of Sec.  1.167(a)-
8) to be $400, then the portion thereof attributable to a period after 
December 31, 1961, is $302 (\151/200\ of $400). If, however, the 
property were acquired by such taxpayer after December 31, 1961, the 
entire deduction for depreciation attributable to the property for such 
fiscal year would be allocable to a period after December 31, 1961. For 
treatment of certain normal retirements described in paragraph (e)(2) of 
Sec.  1.167(a)-8, see paragraph (c) of Sec.  1.1245-6. For principles of 
determining the amount of adjustments for depreciation or amortization 
reflected in the adjusted basis of property upon an abnormal retirement 
of property in a multiple asset account, see paragraph (c)(3) of Sec.  
1.167(a)-8.
    (ii) For purposes of determining recomputed basis, the amount of 
adjustments reflected in the adjusted basis of an elevator or escalator 
are limited to adjustments attributable to periods after June 30, 1963.
    (iii) For purposes of determining recomputed basis, the amount of 
adjustments reflected in the adjusted basis of livestock (described in 
subparagraph (2)(iii) of this paragraph) are limited to adjustments 
attributable to periods after December 31, 1969.
    (7) Depreciation or amortization allowed or allowable. For purposes 
of determining recomputed basis, generally all adjustments (for periods 
after Dec. 31, 1961, or, in the case of property described in 
subparagraph (2) (ii), (iii), or (iv) of this paragraph, for periods 
after the applicable date) attributable to allowed or allowable 
depreciation or amortization must be taken into account. See section 
1016(a)(2) and the regulations thereunder for the meaning of allowed and 
allowable. However, if a taxpayer can establish by adequate records or 
other sufficient evidence that the amount allowed for depreciation or 
amortization for any period was less than the amount allowable for such 
period, the amount to be taken into account for such period shall be the 
amount allowed. No adjustment is to be made on account of the tax 
imposed by section 56 (relating to the minimum tax for tax preferences). 
See paragraph (b) of this section (relating to records to be kept and 
information

[[Page 418]]

to be filed). For example, assume that in the year 1967 it becomes 
necessary to determine the recomputed basis of property, the $500 
adjusted basis of which reflects adjustments of $1,000 with respect to 
depreciation deductions allowable for periods after December 31, 1961. 
If the taxpayer can establish by adequate records or other sufficient 
evidence that he had been allowed deductions amounting to only $800 for 
the period, then in determining recomputed basis the amount added to 
adjusted basis with respect to the $1,000 adjustments to basis for the 
period will be only $800.
    (8) Exempt organizations. In respect of property disposed of by an 
organization which is or was exempt from income taxes (within the 
meaning of section 501(a)), adjustments reflected in the adjusted basis 
(within the meaning of subparagraph (2) of this paragraph) shall include 
only depreciation or amortization allowed or allowable (i) in computing 
unrelated business taxable income (as defined in section 512(a), or (ii) 
in computing taxable income of the organization (or a predecessor 
organization) for a period during which it was not exempt or, by reason 
of the application of section 502, 503, or 504, was denied its 
exemption.
    (b) Records to be kept. In any case in which it is necessary to 
determine recomputed basis of an item of section 1245 property, the 
taxpayer shall have available permanent records of all the facts 
necessary to determine with reasonable accuracy the amount of such 
recomputed basis, including the following:
    (1) The date, and the manner in which, the property was acquired,
    (2) The taxpayer's basis on the date the property was acquired and 
the manner in which the basis was determined,
    (3) The amount and date of all adjustments to the basis of the 
property allowed or allowable to the taxpayer for depreciation or 
amortization and the amount and date of any other adjustments by the 
taxpayer to the basis of the property,
    (4) In the case of section 1245 property which has an adjusted basis 
reflecting adjustments for depreciation or amortization taken by the 
taxpayer with respect to other property, or by another taxpayer with 
respect to the same or other property, the information described in 
subparagraphs (1), (2), and (3) of this paragraph with respect to such 
other property or such other taxpayer.
    (c) Adjustments reflected in adjusted basis immediately after 
certain acquisitions--(1) Zero. (i) If on the date a person acquires 
property his basis for the property is determined solely by reference to 
its cost (within the meaning of section 1012), then on such date the 
amount of the adjustments reflected in his adjusted basis for the 
property is zero.
    (ii) If on the date a person acquires property his basis for the 
property is determined solely by reason of the application of section 
301(d) (relating to basis of property received in corporate 
distribution) or section 334(a) (relating to basis of property received 
in a liquidation in which gain or loss is recognized), then on such date 
the amount of the adjustments reflected in his adjusted basis for the 
property is zero.
    (iii) If on the date a person acquires property his basis for the 
property is determined solely under the rules of section 334 (b)(2) or 
(c) relating to basis of property received in certain corporate 
liquidations), then on such date the amount of the adjustments reflected 
in his adjusted basis for the property is zero.
    (iv) If as of the date a person acquires property from a decedent 
such person's basis is determined, by reason of the application of 
section 1014(a), solely by reference to the fair market value of the 
property on the date of the decedent's death or on the applicable date 
provided in section 2032 (relating to alternate valuation date), then on 
such date the amount of the adjustments reflected in his adjusted basis 
for the property is zero.
    (2) Gifts and certain tax-free transactions. (i) If property is 
disposed of in a transaction described in subdivision (ii) of this 
subparagraph, then the amount of the adjustments reflected in the 
adjusted basis of the property in the hands of a transferee immediately 
after the disposition shall be an amount equal to:

[[Page 419]]

    (a) The amount of the adjustments reflected in the adjusted basis of 
the property in the hands of the transferor immediately before the 
disposition, minus
    (b) The amount of any gain taken into account under section 
1245(a)(1) by the transferor upon the disposition.
    (ii) The transactions referred to in paragraph (c)(2)(i) of this 
section are:
    (A) A disposition that is in part a sale or exchange and in part a 
gift (see Sec.  1.1245-4(a)(3));
    (B) A disposition (other than a disposition to which section 
1245(b)(6)(A) applies) that is described in section 1245(b)(3) (relating 
to certain tax-free transactions);
    (C) An exchange described in Sec.  1.1245-4(e)(2) (relating to 
transfers described in section 1081(d)(1)(A)); or
    (D) A transfer at death where the basis of property in the hands of 
the transferee is determined under section 1022.
    (iii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: Jones transfers section 1245 property to a corporation in 
exchange for stock of the corporation and $1,000 cash in a transaction 
which qualifies under section 351 (relating to transfer to a corporation 
controlled by transferor). Before the exchange the amount of the 
adjustments reflected in the adjusted basis of the property is $3,000. 
Upon the exchange $1,000 gain is recognized under section 1245(a)(1). 
Immediately after the exchange, the amount of the adjustments reflected 
in the adjusted basis of the property in the hands of the corporation is 
$2,000 (that is, $3,000 minus $1,000).

    (3) Certain transfers at death. (i) If property is acquired in a 
transfer at death to which section 1245(b)(2) applies, the amount of the 
adjustments reflected in the adjusted basis of property in the hands of 
the transferee immediately after the transfer shall be the amount (if 
any) of depreciation or amortization deductions allowed the transferee 
before the decedent's death, to the extent that the basis of the 
property (determined under section 1014(a)) is required to be reduced 
under the second sentence of section 1014(b)(9) (relating to adjustments 
to basis where property is acquired from a decedent prior to his death).
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: H purchases section 1245 property in 1965 which he 
immediately conveys to himself and W, his wife, as tenants by the 
entirety. Under local law each spouse is entitled to one-half the income 
from the property. H and W file joint income tax returns for calendar 
years 1965, 1966, and 1967. Over the 3 years, depreciation deductions 
amounting to $4,000 (the amount allowable) are allowed in respect of the 
property of which one-half thereof, or $2,000, is allocable to W. On 
January 1, 1968, H dies and the entire value of the property at the date 
of death is included in H's gross estate. Since W's basis for the 
property (determined under section 1014(a)) is reduced (under the second 
sentence of section 1014(b)(9)) by the $2,000 depreciation deductions 
allowed W before H's death, the adjustments reflected in the adjusted 
basis of the property in the hands of W immediately after H's death 
amount to $2,000.

    (4) Property received in a like kind exchange, involuntary 
conversion, or F.C.C. transaction. (i) If property is acquired in a 
transaction described in subdivision (ii) of this subparagraph then 
immediately after the acquisition (and before applying subparagraph (5) 
of this paragraph, if applicable) the amount of the adjustments 
reflected in the adjusted basis of the property acquired shall be an 
amount equal to:
    (a) The amount of the adjustments reflected in the adjusted basis of 
the property disposed of immediately before the disposition, minus
    (b) The sum of (1) the amount of any gain recognized under section 
1245(a)(1) upon the disposition, plus (2) the amount of gain (if any) 
referred to in subparagraph (5)(ii) of this paragraph.
    (ii) The transactions referred to in subdivision (i) of this 
subparagraph are:
    (a) A disposition which is a like kind exchange or an involuntary 
conversion to which section 1245(b)(4) applies, or
    (b) A disposition to which the provisions of section 1071 and 
paragraph (e)(1) of Sec.  1.1245-4 apply.
    (iii) The provisions of subdivisions (i) and (ii) of this 
subparagraph may be illustrated by the following examples:

    Example 1. Smith exchanges machine A for machine B and $1,000 cash 
in a like kind exchange. Gain of $1,000 is recognized under section 
1245(a)(1). If before the exchange the amount of the adjustments 
reflected in the

[[Page 420]]

adjusted basis of machine A was $5,000, the amount of adjustments 
reflected in the adjusted basis of machine B after the exchange is 
$4,000 (that is, $5,000 minus $1,000).
    Example 2. Assume the same facts as in example (1) except that 
machine A is destroyed by fire, that $5,000 in insurance proceeds are 
received of which $4,000 is used to purchase machine B, and that Smith 
properly elects under section 1033(a)(3)(A) to limit recognition of 
gain. The result is the same as in example (1), that is, the amount of 
adjustments reflected in the adjusted basis of machine B is $4,000 
($5,000 minus $1,000).

    (iv) If more than one item of section 1245 property is acquired in a 
transaction referred to in subdivision (i) of this subparagraph, the 
total amount of the adjustments reflected in the adjusted bases of the 
items acquired shall be allocated to such items in proportion to their 
respective adjusted bases.
    (5) Property after a reduction in basis pursuant to election under 
section 1071 or application of section 1082(a)(2). If the basis of 
section 1245 property is reduced pursuant to an election under section 
1071 (relating to gain from sale or exchange to effectuate policies of 
F.C.C.), or the application of section 1082(a)(2) (relating to sale or 
exchange in obedience to order of S.E.C.), then immediately after the 
basis reduction the amount of the adjustments reflected in the adjusted 
basis of the property shall be the sum of:
    (i) The amount of the adjustments reflected in the adjusted basis of 
the property immediately before the basis reduction (but after applying 
subparagraph (4) of this paragraph, if applicable), plus
    (ii) The amount of gain which was not recognized under section 
1245(a)(1) by reason of the reduction in the basis of the property. See 
paragraph (e)(1) of Sec.  1.1245-4.
    (6) Partnership property after certain transactions. (i) For the 
amount of adjustments reflected in the adjusted basis of property 
immediately after certain distributions of the property by a partnership 
to a partner, see section 1245(b)(6)(B).
    (ii) If under paragraph (b)(3) of Sec.  1.751-1 (relating to certain 
distributions of partnership property other than section 751 property 
treated as sales or exchanges) a partnership is treated as purchasing 
section 1245 property (or a portion thereof) from a distributee who 
relinquishes his interest in such property (or portion), then on the 
date of such purchase the amount of adjustments reflected in the 
adjusted basis of such purchased property (or portion) shall be zero.
    (iii) See paragraph (e)(3)(ii) of Sec.  1.1245-1 for the amount of 
adjustments reflected in the adjusted basis of partnership property in 
respect of a partner who acquired his partnership interest in certain 
transactions when an election under section 754 (relating to optional 
adjustments to basis of partnership property) was in effect.
    (d) Effective/applicability date. This section applies on and after 
January 19, 2017. For rules before January 19, 2017, see Sec.  1.1245-2 
as contained in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 6832, 30 FR 8578, July 7, 1965, as amended by T.D. 7084, 36 FR 
268, Jan. 8, 1971; T.D. 7141, 36 FR 18793, Sept. 22, 1971; 36 FR 19160, 
Sept. 30, 1971; T.D. 7564, 43 FR 40496, Sept. 12, 1978; T.D. 8121, 52 FR 
414, Jan. 6, 1987; T.D. 9811, 82 FR 6241, Jan. 19, 2017]



Sec.  1.1245-3  Definition of section 1245 property.

    (a) In general. (1) The term section 1245 property means any 
property (other than livestock excluded by the effective date limitation 
in subparagraph (4) of this paragraph) which is or has been property of 
a character subject to the allowance for depreciation provided in 
section 167 and which is either:
    (i) Personal property (within the meaning of paragraph (b) of this 
section),
    (ii) Property described in section 1245(a)(3)(B) (see paragraph (c) 
of this section), or
    (iii) An elevator or an escalator within the meaning of subparagraph 
(C) of section 48(a)(1) (relating to the definition of section 38 
property for purposes of the investment credit), but without regard to 
the limitations in such subparagraph (C).
    (2) If property is section 1245 property under a subdivision of 
subparagraph (1) of this paragraph, a leasehold of such property is also 
section 1245 property under such subdivision. Thus, for example, if A 
owns personal property which is section 1245 property under subparagraph 
(1)(i) of this paragraph,

[[Page 421]]

and if A leases the personal property to B, B's leasehold is also 
section 1245 property under such provision. For a further example, if C 
owns and leases to D for a single lump-sum payment of $100,000 property 
consisting of land and a fully equipped factory building thereon, and if 
40 percent of the fair market value of such property is properly 
allocable to section 1245 property, then 40 percent of D's leasehold is 
also section 1245 property. A leasehold of land is not section 1245 
property.
    (3) Even though property may not be of a character subject to the 
allowance for depreciation in the hands of the taxpayer, such property 
may nevertheless be section 1245 property if the taxpayer's basis for 
the property is determined by reference to its basis in the hands of a 
prior owner of the property and such property was of a character subject 
to the allowance for depreciation in the hands of such prior owner, or 
if the taxpayer's basis for the property is determined by reference to 
the basis of other property that in the hands of the taxpayer was 
property of a character subject to the allowance for depreciation, or if 
the taxpayer's basis for the property is determined under section 1022 
and such property was of a character subject to the allowance for 
depreciation in the hands of the decedent. Thus, for example, if a 
father uses an automobile in his trade or business during a period after 
December 31, 1961, and then gives the automobile to his son as a gift 
for the son's personal use, the automobile is section 1245 property in 
the hands of the son.
    (4) Section 1245 property includes livestock, but only with respect 
to taxable years beginning after December 31, 1969. For purposes of 
section 1245, the term livestock includes horses, cattle, hogs, sheep, 
goats, and mink and other furbearing animals, irrespective of the use to 
which they are put or the purpose for which they are held.
    (b) Personal property defined. The term personal property means:
    (1) Tangible personal property (as defined in paragraph (c) of Sec.  
1.48-1, relating to the definition of section 38 property for purposes 
of the investment credit), and
    (2) Intangible personal property.
    (c) Property described in section 1245(a)(3)(B). (1) The term 
property described in section 1245(a)(3)(B) means tangible property of 
the requisite depreciable character other than personal property (and 
other than a building and its structural components), but only if there 
are adjustments reflected in the adjusted basis of the property (within 
the meaning of paragraph (a)(2) of Sec.  1.1245-2) for a period during 
which such property (or other property):
    (i) Was used as an integral part of manufacturing, production, or 
extraction, or as an integral part of furnishing transportation, 
communications, electrical energy, gas, water, or sewage disposal 
services by a person engaged in a trade or business of furnishing any 
such service, or
    (ii) Constituted a research or storage facility used in connection 
with any of the foregoing activities.

Thus, even though during the period immediately preceding its 
disposition the property is not used as an integral part of an activity 
specified in subdivision (i) of this subparagraph and does not 
constitute a facility specified in subdivision (ii) of this 
subparagraph, such property is nevertheless property described in 
section 1245(a)(3)(B) if, for example, there are adjustments reflected 
in the adjusted basis of the property for a period during which the 
property was used as an integral part of manufacturing by the taxpayer 
or another taxpayer, or for a period during which other property (which 
was involuntarily converted into, or exchanged in a like kind exchange 
for, the property) was so used by the taxpayer or another taxpayer. For 
rules applicable to involuntary conversions and like kind exchanges, see 
paragraph (d)(3) of Sec.  1.1245-4.
    (2) The language used in subparagraph (1) (i) and (ii) of this 
paragraph shall have the same meaning as when used in paragraph (a) of 
Sec.  1.48-1, and the terms building and structural components shall 
have the meanings assigned to those terms in paragraph (e) of Sec.  
1.48-1.
    (d) Effective/applicability date. This section applies on and after 
January 19, 2017. For rules before January 19, 2017,

[[Page 422]]

see Sec.  1.1245-3 as contained in 26 CFR part 1 revised as of April 1, 
2016.

[T.D. 6832, 30 FR 8580, July 7, 1965, as amended by T.D. 7141, 36 FR 
18794, Sept. 22, 1971; T.D. 9811, 82 FR 6241, Jan. 19, 2017]



Sec.  1.1245-4  Exceptions and limitations.

    (a) Exception for gifts--(1) General rule. Section 1245(b)(1) 
provides that no gain shall be recognized under section 1245(a)(1) upon 
a disposition by gift. For purposes of this paragraph (a), the term gift 
means, except to the extent that paragraph (a)(3) of this section 
applies, a transfer of property that, in the hands of the transferee, 
has a basis determined under the provisions of section 1015(a) or 
1015(d) (relating to basis of property acquired by gifts) or section 
1022 (relating to basis of property acquired from certain decedents who 
died in 2010). For reduction in amount of charitable contribution in 
case of a gift of section 1245 property, see section 170(e) and the 
regulations thereunder.
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. A places section 1245 property in trust to pay the income 
from the property to B for his life, and after B's death to distribute 
the property to C. If the basis of the property to the fiduciary and to 
C is determined under the uniform basis rules prescribed in paragraph 
(b) of Sec.  1.1015-1, and under paragraph (c) of Sec.  1.1015-1 the 
time the fiduciary and C acquire their interests in the property is the 
time the donor relinquished dominion over the property, then section 
1245(a)(1) does not apply to the transfer by A to the trust or to the 
distribution to C.
    Example 2. Assume the same facts as in example (1), except that the 
fiduciary sells the section 1245 property and reinvests the proceeds in 
other section 1245 property which is distributed to C upon B's death. 
Assume further that under paragraph (f) of Sec.  1.1015-1 C's basis for 
the distributed property is the cost or other basis to the fiduciary. 
Section 1245(a)(1) applies to the sale but not to the distribution.

    (3) Disposition in part a sale or exchange and in part a gift. Where 
a disposition of property is in part a sale or exchange and in part a 
gift, the gain to which section 1245(a)(1) applies is the amount by 
which (i) the lower of the amount realized upon the disposition of the 
property or the recomputed basis of the property, exceeds (ii) the 
adjusted basis of the property. For determination of the recomputed 
basis of the property in the hands of the transferee, see paragraph 
(c)(2) of Sec.  1.1245-2.
    (4) Example. The provisions of subparagraph (3) of this paragraph 
may be illustrated by the following example:

    Example: (i) Smith transfers section 1245 property, which he has 
held in excess of 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable years beginning in 1977), to his son for 
$60,000. Immediately before the transfer the property in the hands of 
Smith has an adjusted basis of $30,000, a fair market value of $90,000, 
and a recomputed basis of $110,000. Since the amount realized upon 
disposition of the property ($60,000) is lower than its recomputed basis 
($110,000), the excess of the amount realized over adjusted basis, or 
$30,000, is treated as ordinary income under section 1245(a)(1) and not 
as gain from the sale or exchange of property described in section 1231. 
Smith has made a gift of $30,000 ($90,000 fair market value minus 
$60,000 amount realized) to which section 1245(a)(1) does not apply.
    (ii) Immediately before the transfer, the amount of adjustments 
reflected in the adjusted basis of the property was $80,000. Under 
paragraph (c)(2) of Sec.  1.1245-2, $50,000 of adjustments are reflected 
in the adjusted basis of the property immediately after the transfer, 
that is, $80,000 of such adjustments immediately before the transfer, 
minus $30,000 gain taken into account under section 1245(a)(1) upon the 
transfer. Thus, the recomputed basis of the property in the hands of the 
son is $110,000.

    (b) Exception for transfers at death--(1) General rule. Section 
1245(b)(2) provides that, except as provided in section 691 (relating to 
income in respect of a decedent), no gain shall be recognized under 
section 1245(a)(1) upon a transfer at death. For purposes of this 
paragraph, the term transfer at death means a transfer of property 
which, in the hands of the transferee, has a basis determined under the 
provisions of section 1014(a) (relating to basis of property acquired 
from a decedent) because of the death of the transferor. For recomputed 
basis of property acquired in a transfer at death, see paragraph 
(c)(1)(iv) of Sec.  1.1245-2.
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:


[[Page 423]]


    Example 1. Smith owns section 1245 property which, upon Smith's 
death, is inherited by his son. Since the property is described in 
section 1014(b)(1), its basis in the hands of the son is determined 
under the provisions of section 1014(a). Therefore, section 1245(a)(1) 
does not apply to the transfer at Smith's death.
    Example 2. H purchases section 1245 property which he conveys to 
himself and W, his wife, as tenants by the entirety. Upon H's death in 
1970 the property (including W's share) is included in his gross estate. 
Since the entire property is described in section 1014(b) (1) and (9), 
its basis in the hands of W is determined under the provisions of 
section 1014(a). Therefore, section 1245(a)(1) does not apply to the 
transfer at H's death. For determination of the recomputed basis of the 
property in the hands of W, see paragraph (c)(3) of Sec.  1.1245-2.
    Example 3. Green's will provides for the bequest of section 1245 
property to trustees to pay the income from the property to his wife for 
her lifetime, and upon her death to distribute the property to his son. 
If under paragraph (a)(2) of Sec.  1.1014-4 the son's unadjusted basis 
for the property is its fair market value at the time the decedent died, 
section 1245(a)(1) does not apply to the distribution of the property to 
the son.
    Example 4. The trustee of a trust created by will transfers section 
1245 property to a beneficiary in satisfaction of a specific bequest of 
$10,000. If under the principles of paragraph (a)(3) of Sec.  1.1014-4 
the trust realizes a taxable gain upon the transfer, section 1245(a)(1) 
applies to the transfer.

    (c) Limitation for certain tax-free transactions--(1) Limitation on 
amount of gain. Section 1245(b)(3) provides that upon a transfer of 
property described in subparagraph (2) of this paragraph, the amount of 
gain taken into account by the transferor under section 1245(a)(1) shall 
not exceed the amount of gain recognized to the transferor on the 
transfer (determined without regard to section 1245). For purposes of 
this subparagraph, in case of a transfer of both section 1245 property 
and non-section 1245 property in one transaction, the amount realized 
from the disposition of the section 1245 property (as determined under 
paragraph (a)(5) of Sec.  1.1245-1) shall be deemed to consist of that 
portion of the fair market value of each property acquired which bears 
the same ratio to the fair market value of such acquired property as the 
amount realized from the disposition of the section 1245 property bears 
to the total amount realized. The preceding sentence shall be applied 
solely for purposes of computing the portion of the total gain 
(determined without regard to section 1245) which shall be recognized as 
ordinary income under section 1245(a)(1). For determination of the 
recomputed basis of the section 1245 property in the hands of the 
transferee, see paragraph (c)(2) of Sec.  1.1245-2. Section 1245(b)(3) 
does not apply to a disposition of property to an organization (other 
than a cooperative described in section 521) which is exempt from the 
tax imposed by chapter 1 of the Code.
    (2) Transfers covered. The transfers referred to in subparagraph (1) 
of this paragraph are transfers of property in which the basis of the 
property in the hands of the transferee is determined by reference to 
its basis in the hands of the transferor by reason of the application of 
any of the following provisions:
    (i) Section 332 (relating to distributions in complete liquidation 
of an 80-percent-or-more controlled subsidiary corporation). See 
subparagraph (3) of this paragraph.
    (ii) Section 351 (relating to transfer to a corporation controlled 
by transferor).
    (iii) Section 361 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 371(a) (relating to exchanges pursuant to certain 
receivership and bankruptcy proceedings).
    (v) Section 374(a) (relating to exchanges pursuant to certain 
railroad reorganizations).
    (vi) Section 721 (relating to transfers to a partnership in exchange 
for a partnership interest).
    (vii) Section 731 (relating to distributions by a partnership to a 
partner). For special carryover basis rule, see section 1245(b)(6)(A) 
and paragraph (f)(1) of this section.
    (3) Complete liquidation of subsidiary. In the case of a 
distribution in complete liquidation of an 80-percent-or-more controlled 
subsidiary to which section 332 applies, the limitation provided in 
section 1245(b)(3) is confined to instances in which the basis of the 
property in the hands of the transferee is determined, under section 
334(b)(1), by reference to its basis in the hands of the transferor. 
Thus, for example, the limitation of section 1245(b)(3) may

[[Page 424]]

apply in respect of a liquidating distribution of section 1245 property 
by an 80-percent-or-more controlled corporation to the parent 
corporation, but does not apply in respect of a liquidating distribution 
of section 1245 property to a minority shareholder. Section 1245(b)(3) 
does not apply to a liquidating distribution of property by an 80-
percent-or-more controlled subsidiary to its parent if the parent's 
basis for the property is determined, under section 334(b)(2), by 
reference to its basis for the stock of the subsidiary.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Section 1245 property, which is owned by Smith, has a 
fair market value of $10,000, a recomputed basis of $8,000, and an 
adjusted basis of $4,000. Smith transfers the property to a corporation 
in exchange for stock in the corporation worth $9,000 plus $1,000 in 
cash in a transaction qualifying under section 351. Without regard to 
section 1245, Smith would recognize $1,000 gain under section 351(b), 
and the corporation's basis for the property would be determined under 
section 362(a) by reference to its basis in the hands of Smith. Since 
the recomputed basis of the property disposed of ($8,000) is lower than 
the amount realized ($10,000), the excess of recomputed basis over 
adjusted basis ($4,000), or $4,000, would be treated as ordinary income 
under section 1245(a)(1) if the provisions of section 1245(b)(3) did not 
apply. However, section 1245(b)(3) limits the gain taken into account by 
Smith under section 1245(a)(1) to $1,000. If, instead, Smith transferred 
the property to the corporation solely in exchange for stock of the 
corporation worth $10,000, then, because of the application of section 
1245(b)(3), Smith would not take any gain into account under section 
1245(a)(1). If, however, Smith transferred the property to the 
corporation for stock worth $5,000 and $5,000 cash, only $4,000 of the 
$5,000 gain under section 351(b) would be treated as ordinary income 
under section 1245(a)(1).
    Example 2. Assume the same facts as in example (1) except that Smith 
contributes the property to a new partnership in which he has a one-half 
interest. Since, without regard to section 1245, no gain would be 
recognized to Smith under section 721, and by reason of the application 
of section 721 the partnership's basis for the property would be 
determined under section 723 by reference to its basis in the hands of 
Smith, the application of section 1245(b)(3) results in no gain being 
taken into account by Smith under section 1245(a)(1).
    Example 3. Assume the same facts as in example (2) except that the 
property is subject to a $9,000 mortgage. Since under section 752(b) 
(relating to decrease in partner's liabilities) Smith is treated as 
receiving a distribution in money of $4,500 (one-half of liability 
assumed by partnership), and since the basis of Smith's partnership 
interest is $4,000 (the adjusted basis of the contributed property), the 
$4,500 distribution results in his realizing $500 gain under section 
731(a) (relating to distributions by a partnership), determined without 
regard to section 1245. Accordingly, the application of section 
1245(b)(3) limits the gain taken into account by Smith under section 
1245(a)(1) to $500.

    (d) Limitation for like kind exchanges and involuntary conversions--
(1) General rule. Section 1245(b)(4) provides that if property is 
disposed of and gain (determined without regard to section 1245) is not 
recognized in whole or in part under section 1031 (relating to like kind 
exchanges) or section 1033 (relating to involuntary conversions), then 
the amount of gain taken into account by the transferor under section 
1245(a)(1) shall not exceed the sum of:
    (i) The amount of gain recognized on such disposition (determined 
without regard to section 1245), plus
    (ii) The fair market value of property acquired which is not section 
1245 property and which is not taken into account under subdivision (i) 
of this subparagraph (that is, the fair market value of non-section 1245 
property acquired which is qualifying property under section 1031 or 
1033, as the case may be).
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. Smith exchanges machine A for machine B in a like kind 
exchange as to which no gain is recognized under section 1031(a). Both 
machines are section 1245 property. No gain is recognized under section 
1245(a)(1) because of the limitation contained in section 1245(b)(4). 
The result would be the same if machine A were involuntarily converted 
into machine B in a transaction as to which no gain is recognized under 
section 1033(a)(1).
    Example 2. Jones owns property A, which is section 1245 property, 
with an adjusted basis of $100,000 and a recomputed basis of $116,000. 
The property is destroyed by fire and Jones receives $117,000 of 
insurance proceeds. Thus, the amount of gain under section 1245(a)(1), 
determined without regard to section 1245(b)(4), would be $16,000. He 
uses $105,000 of

[[Page 425]]

the proceeds to purchase section 1245 property similar or related in 
service or use to property A, and $9,000 of the proceeds to purchase 
stock in the acquisition of control of a corporation owning property 
similar or related in service or use to property A. Both acquisitions 
qualify under section 1033(a)(3)(A). Jones properly elects under section 
1033(a)(3)(A) and the regulations thereunder to limit recognition of 
gain to the amount by which the amount realized from the conversion 
exceeds the cost of the stock and other property acquired to replace the 
converted property. Since $3,000 of the gain is recognized (without 
regard to section 1245) under section 1033(a)(3) (that is, $117,000 
minus $114,000), and since the stock purchased for $9,000 is not section 
1245 property and was not taken into account in determining the gain 
under section 1033, section 1245(b)(4) limits the amount of the gain 
taken into account under section 1245(a)(1) to $12,000 (that is, $3,000 
plus $9,000). If, instead of purchasing $9,000 in stock, Jones purchases 
$9,000 worth of property which is section 1245 property similar or 
related in use to the destroyed property, section 1245(b)(4) would limit 
the amount of gain taken into account under section 1245(a)(1) to 
$3,000.

    (3) Certain tangible property. If:
    (i) A person disposes of section 1245 property in a transaction to 
which section 1245(b)(4) applies,
    (ii) Adjustments are reflected in the adjusted basis (within the 
meaning of paragraph (a)(2) of Sec.  1.1245-2) of such property which 
are attributable to the use of such property (or other property) as an 
integral part of an activity, or as a facility, specified in section 
1245(a)(3)(B) (i) or (ii), and
    (iii) Property is acquired in the transaction which would be 
considered as section 1245 property described in section 1245(a)(3)(B) 
if such person used the acquired property as an integral part of such an 
activity, or as such a facility, then (regardless of the use of the 
acquired property) the acquired property shall be considered as section 
1245 property described in section 1245(a)(3)(B). For definition of 
property described in section 1245(a)(3)(B), see paragraph (c) of Sec.  
1.1245-3. Thus, for example, if a person's section 1245 property (which 
is personal property) is involuntarily converted into property A which 
would qualify as section 1245 property only if it were devoted to a 
specified use, and if the person had so devoted the section 1245 
property disposed of, then the acquired property is considered as 
section 1245 property described in section 1245(a)(3)(B) and therefore 
its fair market value is not taken into account under subparagraph 
(1)(ii) of this paragraph. For recomputed basis of property A, see 
paragraph (a)(5) of Sec.  1.1245-2. Moreover, if property A is not 
devoted to a specified use and is subsequently involuntarily converted 
into property B which would qualify as section 1245 property only if it 
were so devoted, then property B is also considered as section 1245 
property described in section 1245(a)(3)(B).
    (4) Application to disposition of section 1245 property and 
nonsection 1245 property in one transaction. For purposes of this 
paragraph, if both section 1245 property and nonsection 1245 property 
are acquired as the result of one disposition in which both section 1245 
property and nonsection 1245 property are disposed of, then except as 
provided in subparagraph (7) of this paragraph:
    (i) The total amount realized upon the disposition shall be 
allocated (in a manner consistent with the principles of paragraph 
(a)(5) of Sec.  1.1245-1) between the section 1245 property and the 
nonsection 1245 property disposed of in proportion to their respective 
fair market values.
    (ii) The amount realized upon the disposition of the section 1245 
property shall be deemed to consist of so much of the fair market value 
of the section 1245 property acquired as is not in excess of the amount 
realized from the section 1245 property disposed of, and the remaining 
portion (if any) of the amount realized upon the disposition of the 
section 1245 property shall be deemed to consist of so much of the fair 
market value of the non-section 1245 property acquired as is not in 
excess of the amount of such remaining portion, and
    (iii) The amount realized upon the disposition of the non-section 
1245 property shall be deemed to consist of so much of the fair market 
value of all the property acquired which was not taken into account in 
subdivision (ii) of this subparagraph.
    (5) Example. The provisions of subparagraph (4) of this paragraph 
may be illustrated by the following example:


[[Page 426]]


    Example: (i) Smith owns section 1245 property A with a fair market 
value of $30,000, and non-section 1245 property X with a fair market 
value of $20,000. Properties A and X are destroyed by fire and Smith 
receives insurance proceeds of $40,000. He uses all the proceeds, plus 
additional cash of $10,000, to purchase in a single transaction 
properties B and Y which qualify under section 1033(a)(3)(A), and he 
properly elects under section 1033(a)(3)(A) and the regulations 
thereunder to limit recognition of gain to the excess of the amount 
realized from the conversion over the costs of the qualifying properties 
acquired. Thus no gain would be recognized (without regard to section 
1245) under section 1033(a)(3)(A). Property B is section 1245 property 
with a fair market value of $15,000, and property Y is non-section 1245 
property with a fair market value of $35,000.
    (ii) The amount realized upon the disposition of A and X ($40,000) 
is allocated between A and X in proportion to their respective fair 
market values. Thus, the amount considered realized in respect of A is 
$24,000 (that is, \30/50\ of $40,000). (The amount considered realized 
in respect of X is $16,000 (that is, \20/50\ of $40,000).)
    (iii) The $24,000 realized upon the disposition of A is deemed to 
consist of the fair market value of B ($15,000) and $9,000 of the fair 
market value of Y. (The $16,000 realized upon the disposition of X is 
deemed to consist of $16,000 of the fair market value of Y. Also, 
$10,000 of the fair market value of Y is attributable to the additional 
cash of $10,000.)
    (iv) Assume that A has an adjusted basis of $5,000, and a recomputed 
basis of $40,000. Since the amount considered realized upon the 
disposition of A ($24,000) is lower than its recomputed basis ($40,000), 
the amount of gain which would be recognized under section 1245(a)(1), 
determined without regard to section 1245(b)(4), is $19,000, that is, 
the amount realized ($24,000) minus the adjusted basis ($5,000). Since 
no gain is recognized (without regard to section 1245) under section 
1033(a)(3), and since $9,000 of the property acquired in exchange for 
section 1245 property A is non-section 1245 property Y, section 
1245(b)(4) limits the amount of gain taken into account under section 
1245(a)(1) to $9,000.

    (6) Cross references. For the manner of determining the recomputed 
basis of property acquired in a transaction to which section 1245(b)(4) 
applies, see paragraph (c)(4) of Sec.  1.1245-2. For the manner of 
determining the basis of such property, see paragraph (a) of Sec.  
1.1245-5.
    (7) Coordination with section 1250. For purposes of this paragraph, 
if section 1245 property and section 1250 property are disposed of in 
one transaction in which the property acquired includes section 1250 
property, the allocation rules of paragraph (d)(6) of Sec.  1.1250-3 
shall apply.
    (e) Limitation for section 1071 and 1081 transactions--(1) Section 
1071 and 1081(b) transactions. If property is disposed of and gain 
(determined without regard to section 1245) is not recognized in whole 
or in part because of the application of section 1071 (relating to gain 
from sale or exchange to effectuate policies of F.C.C.) or section 
1081(b) (relating to gain from sale or exchange in obedience to order of 
S.E.C.), then the amount of gain taken into account by the transferor 
under section 1245(a)(1) shall not exceed the sum of:
    (i) The amount of gain recognized on such disposition (determined 
without regard to section 1245),
    (ii) In the case of a transaction to which section 1071 applies, the 
fair market value of property acquired which is not section 1245 
property and which is not taken into account under subdivision (i) of 
this subparagraph, plus
    (iii) The amount by which the basis of property, other than section 
1245 property, is reduced (pursuant to an election under section 1071 or 
pursuant to the application of section 1082(a)(2)), and which is not 
taken into account under subdivision (i) or (ii) of this subparagraph.
    (2) Section 1081(d)(1)(A) transaction. No gain shall be recognized 
under section 1245(a)(1) upon an exchange of property as to which gain 
would not be recognized (without regard to section 1245) because of the 
application of section 1081(d)(1)(A) (relating to transfers within 
system group). For recomputed basis of property acquired in a 
transaction referred to in this subparagraph, see paragraph (c)(2) of 
Sec.  1.1245-2.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Corporation X elects under section 1071 to treat a sale 
of section 1245 property for $100,000 as an involuntary conversion 
subject to the provisions of section 1033, but does not elect to reduce 
the basis of depreciable property pursuant to an election under section 
1071. The corporation uses $35,000 of the proceeds to purchase section 
1245 property and $40,000 to purchase other

[[Page 427]]

property. Both properties qualify as replacement property under section 
1033. Assuming that the amount of gain under section 1245(a)(1) 
(determined without regard to this paragraph) would be $70,000, and that 
$25,000 of gain would be recognized (without regard to section 1245) 
upon the application of section 1071, the amount of gain taken into 
account under section 1245(a)(1) is $65,000 ($25,000 plus $40,000).
    Example 2. (i) Assume the same facts as in example (1) except that 
the corporation elects under section 1071 to reduce its basis for 
property of a character subject to the allowance for depreciation under 
section 167 by the amount of gain which would be recognized without 
regard to the application of section 1245, that is, by $25,000. Assume 
further that under section 1071 the corporation may reduce the basis of 
depreciable property consisting of property A, which is section 1245 
property with an adjusted basis of $30,000, and property B, which is 
property other than section 1245 property with an adjusted basis of 
$20,000. Under paragraph (a)(2) of Sec.  1.1071-3, the $25,000 of 
unrecognized gain is applied to reduce the basis of property A by 
$15,000 (30,000/50,000 of $25,000) and the basis of property B by 
$10,000 (20,000/50,000 of $25,000).
    (ii) The amount of gain which would be recognized (determined 
without regard to section 1245) under section 1071 is zero, i.e., the 
amount determined in example (1) ($25,000), minus the amount of the 
reduction in basis of depreciable property pursuant to the election 
($25,000). The amount of gain taken into account under section 
1245(a)(1) is $50,000, i.e., the sum of (a) the gain which would be 
recognized without regard to section 1245 (zero), (b) the cost of 
property acquired which is not section 1245 property ($40,000), plus (c) 
the amount by which the basis of property B is reduced ($10,000). For 
method of increasing basis of property B, see paragraph (b)(2) of Sec.  
1.1245-5, and for recomputed basis of property A, see paragraph (c)(5) 
of Sec.  1.1245-2.

    (f) Limitation for property distributed by a partnership--(1) In 
general. For purposes of section 1245(b)(3) (relating to certain tax-
free transactions), the basis of section 1245 property distributed by a 
partnership to a partner shall be deemed to be determined by reference 
to the adjusted basis of such property to the partnership.
    (2) Adjustments reflected in the adjusted basis. If section 1245 
property is distributed by a partnership to a partner, then, for 
purposes of determining the recomputed basis of the property in the 
hands of the distributee, the amount of the adjustments reflected in the 
adjusted basis of the property immediately after the distribution shall 
be an amount equal to:
    (i) The potential section 1245 income (as defined in paragraph 
(c)(4) of Sec.  1.751-1) of the partnership in respect of the property 
immediately before the distribution, reduced by
    (ii) The portion of such potential section 1245 income which is 
recognized as ordinary income to the partnership under paragraph 
(b)(2)(ii) of Sec.  1.751-1.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) A machine, which is section 1245 property owned by 
partnership ABC, has an adjusted basis of $9,000, a recomputed basis of 
$18,000, and a fair market value of $15,000. Since the fair market value 
of the machine is lower than its recomputed basis, the potential section 
1245 income in respect of the machine is the excess of fair market value 
over adjusted basis, or $6,000. The partnership distributes the machine 
to C in a complete liquidation of his partnership interest to which 
section 736(a) does not apply. C, who had originally contributed the 
machine to the partnership, has a basis for his partnership interest of 
$10,000. Since section 751(b)(2)(A) provides that section 751(b)(1) does 
not apply to a distribution of property to the partner who contributed 
the property, no gain would be recognized to the partnership under 
section 731(b) (without regard to the application of section 1245). By 
reason of the application of section 731, C's basis for the property 
would, under section 732(b), be equal to his basis for his interest in 
the partnership, or $10,000.
    (ii) Since section 731 applies to the distribution, and since 
subparagraph (1) of this paragraph provides that, for purposes of 
section 1245(b)(3), C's basis for the property is deemed to be 
determined by reference to the adjusted basis of the property to the 
partnership, the gain taken into account under section 1245(a)(1) by the 
partnership is limited by section 1245(b)(3) so as not to exceed the 
amount of gain which would be recognized to the partnership if section 
1245 did not apply. Accordingly, the partnership does not recognize any 
gain under section 1245(a)(1) upon the distribution.
    (iii) Immediately after the distribution, the amount of the 
adjustments reflected in the adjusted basis of the property is equal to 
$6,000 (that is, the potential section 1245 income of the partnership in 
respect of the property before the distribution, $6,000, minus the gain 
recognized by the partnership under section 751(b), zero). Accordingly, 
C's recomputed basis for the property is $16,000

[[Page 428]]

(that is, adjusted basis, $10,000, plus adjustments reflected in the 
adjusted basis, $6,000).
    Example 2. Assume the same facts as in example (1) except that the 
machine had been purchased by the partnership. Assume further that upon 
the distribution, the partnership recognizes $4,000 gain as ordinary 
income under section 751(b). Under section 1245(b)(3), gain to be taken 
into account under section 1245(a)(1) by the partnership is limited to 
$4,000. Immediately after the distribution, the amount of adjustments 
reflected in the adjusted basis of the property is $2,000 (that is, 
potential section 1245 income of the partnership, $6,000, minus gain 
recognized to the partnership under section 751(b), $4,000). Thus, if 
the adjusted basis of the machine in the hands of C were $11,333 (see, 
for example, the computation in paragraph (d)(2) of example (6) of 
paragraph (g) of Sec.  1.751-1), the recomputed basis of the machine 
would be $13,333 ($11,333 plus $2,000).

    (g) [Reserved]
    (h) Timber property subject to amortization under section 194--(1) 
In general. For purposes of section 1245(a)(2), in determining the 
recomputed basis of property with respect to which a deduction under 
section 194 was allowed for any taxable year, a taxpayer shall not take 
into account amortization deductions claimed under section 194 to the 
extent such deductions are attributable to the amortizable basis (within 
the meaning of section 194(c)(2)) of the taxpayer acquired before the 
tenth taxable year preceding the taxable year in which gain with respect 
to the property is recognized.
    (2) Example. The principles of paragraph (h)(1) of this section are 
illustrated by the following example:

    Example: Assume A owns qualified timber property (as defined in 
section 194(c)(1)) with a basis of $30,000. In 1981, A incurs $12,000 of 
qualifying reforestation expenditures and elects to amortize the maximum 
$10,000 of such expenses under section 194. The $10,000 of deductions 
are taken during the 8-year period from 1981 to 1988. If A sells the 
property in 1990 for $60,000 a gain of $28,000 ($60,000--adjusted basis 
of $32,000) is recognized on the sale. Since the sale took place within 
10 years of the taxable year in which the reforestation expenditures 
were made, $10,000 of the gain is treated as ordinary income, and the 
remaining $18,000 of gain would be capital gain, if it otherwise 
qualifies for capital gain treatment. In order to avoid ordinary income 
treatment of the gain attributable to the reforestation expenditures 
incurred in 1981, A would have to wait until 1992 to dispose of the 
property.
    (i) Effective/applicability date. This section applies on and after 
January 19, 2017. For rules before January 19, 2017, see Sec.  1.1245-4 
as contained in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 6832, 30 FR 8581, July 7, 1965, as amended by T.D. 7084, 36 FR 
268, Jan. 8, 1971; T.D. 7207, 37 FR 20799, Oct. 14, 1972; T.D. 7728, 45 
FR 72650, Nov. 3, 1980; T.D. 7927, 48 FR 55851, Dec. 16, 1983; T.D. 
9811, 82 FR 6241, Jan. 19, 2017]



Sec.  1.1245-5  Adjustments to basis.

    In order to reflect gain recognized under section 1245(a)(1), the 
following adjustments to the basis of property shall be made:
    (a) Property acquired in like kind exchange or involuntary 
conversion. (1) If property is acquired in a transaction to which 
section 1245(b)(4) applies, its basis shall be determined under the 
rules of section 1031(d) or 1033(c).
    (2) The provisions of this paragraph may be illustrated by the 
following example:

    Example: Jones exchanges property A, which is section 1245 property 
with an adjusted basis of $10,000, for property B, which has a fair 
market value of $9,000, and property C, which has a fair market value of 
$3,500, in a like kind exchange as to which no gain would be recognized 
under section 1031(a). Upon the exchange $2,500 gain is recognized under 
section 1245(a)(1), since property C is not section 1245 property. See 
section 1245(b)(4). Under the rules of section 1031(d), the basis of the 
properties received in the exchange is $12,500 (i.e., the basis of 
property transferred, $10,000, plus the amount of gain recognized, 
$2,500), of which the amount allocated to property C is $3,500 (the fair 
market value thereof), and the residue, $9,000, is allocated to property 
B.

    (b) Sections 1071 and 1081 transactions. (1) If property is acquired 
in a transaction to which section 1071 and paragraph (e)(1) of Sec.  
1.1245-4 (relating to limitation for section 1071 transactions, etc.) 
apply, its basis shall be determined in accordance with the principles 
of paragraph (a) of this section.
    (2) If the basis of property, other than section 1245 property, is 
reduced pursuant to either an election under section 1071 or the 
application of section 1082(a)(2), then the basis of the

[[Page 429]]

property shall be increased to the extent of the gain recognized under 
section 1245(a)(1) by reason of the application of paragraph (e)(1)(iii) 
of Sec.  1.1245-4.

[T.D. 6832, 30 FR 8584, July 7, 1965]



Sec.  1.1245-6  Relation of section 1245 to other sections.

    (a) General. The provisions of section 1245 apply notwithstanding 
any other provision of subtitle A of the Code. Thus, unless an exception 
or limitation under section 1245(b) applies, gain under section 
1245(a)(1) is recognized notwithstanding any contrary nonrecognition 
provision or income characterizing provision. For example, since section 
1245 overrides section 1231 (relating to property used in the trade or 
business), the gain recognized under section 1245(a)(1) upon a 
disposition will be treated as ordinary income and only the remaining 
gain, if any, from the disposition may be considered as gain from the 
sale or exchange of a capital asset if section 1231 is applicable. See 
example (2) of paragraph (b)(2) of Sec.  1.1245-1. For effect of section 
1245 on basis provisions of the Code, see Sec.  1.1245-5.
    (b) Nonrecognition sections overridden. The nonrecognition 
provisions of subtitle A of the Code which section 1245 overrides 
include, but are not limited to, sections 267(d), 311(a), 336, 337, 
501(a), 512(b)(5), and 1039. See section 1245(b) for the extent to which 
section 1245(a)(1) overrides sections 332, 351, 361, 371(a), 374(a), 
721, 731, 1031, 1033, 1071, and 1081 (b)(1) and (d)(1)(A). For 
limitation on amount of adjustments reflected in adjusted basis of 
property disposed of by an organization exempt from income taxes (within 
the meaning of section 501(a)), see paragraph (a)(8) of Sec.  1.1245-2.
    (c) Normal retirement of asset in multiple asset account. Section 
1245(a)(1) does not require recognition of gain upon normal retirements 
of section 1245 property in a multiple asset account as long as the 
taxpayer's method of accounting, as described in paragraph (e)(2) of 
Sec.  1.167(a)-8 (relating to accounting treatment of asset 
retirements), does not require recognition of such gain.
    (d) Installment method. (1) Gain from a disposition to which section 
1245(a)(1) applies may be reported under the installment method if such 
method is otherwise available under section 453 of the Code. In such 
case, the income (other than interest) on each installment payment shall 
be deemed to consist of gain to which section 1245(a)(1) applies until 
all such gain has been reported, and the remaining portion (if any) of 
such income shall be deemed to consist of gain to which section 
1245(a)(1) does not apply. For treatment of amounts as interest on 
certain deferred payments, see section 483.
    (2) The provisions of this paragraph may be illustrated by the 
following example:

    Example: Jones contracts to sell an item of section 1245 property 
for $10,000 to be paid in 10 equal payments of $1,000 each, plus a 
sufficient amount of interest so that section 483 does not apply. He 
properly elects under section 453 to report under the installment method 
gain of $2,000 to which section 1245(a)(1) applies and gain of $1,000 to 
which section 1231 applies. Accordingly, $300 of each of the first 6 
installment payments and $200 of the seventh installment payment is 
ordinary income under section 1245(a)(1), and $100 of the seventh 
installment payment and $300 of each of the last 3 installment payments 
is gain under section 1231.

    (e) Exempt income. The fact that section 1245 provides for 
recognition of gain as ordinary income does not change into taxable 
income any income which is exempt under section 115 (relating to income 
of states, etc.), 892 (relating to income of foreign governments), or 
894 (relating to income exempt under treaties).
    (f) Treatment of gain not recognized under section 1245. Section 
1245 does not prevent gain which is not recognized under section 1245 
from being considered as gain under another provision of the Code, such 
as, for example, section 311(c) (relating to liability in excess of 
basis), section 341(f) (relating to collapsible corporations), section 
357(c) (relating to liabilities in excess of basis), section 1238 
(relating to amortization in excess of depreciation), or section 1239 
(relating to gain from sale of depreciable property between certain 
related persons). Thus, for example, if section 1245 property, which has 
an adjusted basis of $1,000 and a recomputed basis of $1,500, is sold 
for $1,750 in

[[Page 430]]

a transaction to which section 1239 applies, $500 of the gain would be 
recognized under section 1245(a)(1) and the remaining $250 of the gain 
would be treated as ordinary income under section 1239.

[T.D. 6832, 30 FR 8584, July 7, 1965, as amended by T.D. 7084, 36 FR 
269, Jan. 8, 1971; T.D. 7400, 41 FR 5101, Feb. 4, 1976]



Sec.  1.1248-1  Treatment of gain from certain sales or exchanges 
of stock in certain foreign corporations.

    (a) In general. (1) If a United States person (as defined in section 
7701(a)(30)) recognizes gain on a sale or exchange after December 31, 
1962, of stock in a foreign corporation, and if in respect of such 
person the conditions of subparagraph (2) of this paragraph are 
satisfied, then the gain shall be included in the gross income of such 
person as a dividend to the extent of the earnings and profits of such 
corporation attributable to such stock under Sec.  1.1248-2 or 1.1248-3, 
whichever is applicable, which were accumulated in taxable years of such 
foreign corporation beginning after December 31, 1962, during the period 
or periods such stock was held (or was considered as held by reason of 
the application of section 1223, taking into account Sec.  1.1248-8) by 
such person while such corporation was a controlled foreign corporation. 
See section 1248(a). See Sec.  1.1248-8 for additional rules regarding 
the attribution of earnings and profits to the stock of a foreign 
corporation following certain nonrecognition transactions. For 
computation of earnings and profits attributable to such stock if there 
are any lower tier corporations, see paragraph (a) (3) and (4) of Sec.  
1.1248-2 or paragraph (a) of Sec.  1.1248-3, whichever is applicable. In 
general, the amount of gain to be included in a person's gross income as 
a dividend under section 1248(a) shall be determined separately for each 
share of stock sold or exchanged. However, such determination may be 
made in respect of a block of stock if earnings and profits attributable 
to the block are computed under Sec.  1.1248-2 or 1.1248-3. See 
paragraph (b) of Sec.  1.1248-2 and paragraph (a)(5) of Sec.  1.1248-3. 
For the limitation on the tax attributable to an amount included in an 
individual's gross income as a dividend under section 1248(a), see 
section 1248(b) and Sec.  1.1248-4. For the treatment, under certain 
circumstances, of the sale or exchange of stock in a domestic 
corporation as the sale or exchange of stock held by the domestic 
corporation in a foreign corporation, see section 1248(e) and Sec.  
1.1248-6. For the nonapplication of section 1248 in certain 
circumstances, see section 1248(g) and paragraph (e) of this section. 
For the requirement that the person establish the amount of earnings and 
profits attributable to the stock sold or exchanged and, for purposes of 
section 1248(b), the amount of certain taxes, see section 1248(h) and 
Sec.  1.1248-7.
    (2) In respect of a United States person who sells or exchanges 
stock in a foreign corporation, the conditions referred to in 
subparagraph (1) of this paragraph are satisfied only if (i) such person 
owned, within the meaning of section 958(a), or was considered as owning 
by applying the rules of ownership of section 958(b), 10 percent or more 
of the total combined voting power of all classes of stock entitled to 
vote of such foreign corporation at any time during the 5-year period 
ending on the date of the sale or exchange, and (ii) at such time such 
foreign corporation was a controlled foreign corporation (as defined in 
section 957).
    (3) For purposes of subparagraph (2) of this paragraph, (i) a 
foreign corporation shall not be considered to be a controlled foreign 
corporation at any time before the first day of its first taxable year 
beginning after December 31, 1962, and (ii) the percentage of the total 
combined voting power of stock of a foreign corporation owned (or 
considered as owned) by a United States person shall be determined in 
accordance with the principles of section 951(b) and the regulations 
thereunder.
    (4) For purposes of paragraph (a)(1) of this section, if a foreign 
partnership sells or exchanges stock of a corporation, the partners in 
such foreign partnership shall be treated as selling or exchanging their 
proportionate share of the stock of such corporation. Stock which is 
considered to have been sold or exchanged by a partner by reason of the 
application of this paragraph (a)(4)

[[Page 431]]

shall for purposes of applying such sentence be treated as actually sold 
or exchanged by such partner.
    (5) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. Corporation F is a foreign corporation which has 
outstanding 100 shares of one class of stock. F was a controlled foreign 
corporation for the period beginning on January 1, 1963, and ending on 
June 30, 1965, but was not a controlled foreign corporation at any time 
thereafter. On December 31, 1965, Brown, a United States person who has 
owned 15 shares of F stock since 1962, sells 7 of his 15 shares and 
recognizes gain with respect to each share sold. Since Brown owned stock 
representing at least 10 percent of the total combined voting power of F 
at a time during the 5-year period ending on December 31, 1965, while F 
was a controlled foreign corporation, the conditions of subparagraph (2) 
of this paragraph are satisfied. Therefore, section 1248(a) applies to 
the gain recognized by Brown to the extent of the earnings and profits 
attributable under Sec.  1.1248-3 to such shares.
    Example 2. Assume the same facts as in example (1). Assume further 
that on February 1, 1970, Brown sells the remainder of his shares in F 
Corporation and recognizes gain with respect to each share sold. Even 
though Brown did not own stock representing at least 10 percent of the 
total combined voting power of F on February 1, 1970, nevertheless, in 
respect of each of the 8 shares of F stock which he sold on such date, 
the conditions of subparagraph (2) of this paragraph are satisfied since 
Brown owned stock representing at least 10 percent of such voting power 
at a time during the 5-year period ending on February 1, 1970, while F 
was a controlled foreign corporation. Therefore, section 1248(a) applies 
to the gain recognized by Brown to the extent of the earnings and 
profits attributable under Sec.  1.1248-3 to such shares. If, however, 
Brown had sold the reminder of his shares in F on July 1, 1970, since 
the last date on which Brown owned stock representing at least 10 
percent of the total combined voting power of F while F was a controlled 
foreign corporation was June 30, 1965, a date which is not within the 5-
year period ending July 1, 1970, the conditions of subparagraph (2) of 
this paragraph would not be satisfied and section 1248(a) would not 
apply.
    Example 3. Corporation G, a foreign corporation created in 1950, has 
outstanding 100 shares of one class of stock and uses the calendar year 
as its taxable year. Corporation X, a United States person, owns 60 
shares of G stock and has owned such stock since G was created. 
Corporation Y, a United States person, owned 15 shares of the G stock 
from 1950 until December 1, 1962, on which date it sold 10 of such 
shares. On December 31, 1963, Y sells its remaining 5 shares of the G 
stock and recognizes gain on the sale. Since G is not considered to be a 
controlled foreign corporation at any time before January 1, 1963, and 
since Y did not own stock representing at least 10 percent of the total 
combined voting power of G at any time on or after such date, the 
conditions of subparagraph (2) of this paragraph are not satisfied and 
section 1248(a) does not apply.
    Example 4. (i) Facts. X, a domestic corporation, and Y, a foreign 
corporation that is not a controlled foreign corporation, are partners 
in foreign partnership Z. X has a 60% interest in Z, and Y has a 40% 
interest in Z. All parties are calendar year taxpayers. On January 1, 
year 1, Z forms foreign corporation H, a controlled foreign corporation 
that conducts a business in Country C. Z and H's functional currency is 
the United States dollar. In years 1 and 2, H did not earn subpart F 
income as defined in section 952(a). On December 31, year 2, Z sells all 
of the H stock for $600 when Z's adjusted basis in the stock is $100. 
Therefore, Z recognizes a gain of $500 on the sale, of which $300 is 
allocable to X as a 60% partner. At the time of the sale, H had $300 of 
earnings and profits, $180 of which (that is, 60% of $300) is 
attributable to X's 60% share of the H stock.
    (ii) Result. Pursuant to section 1248(a) and paragraphs (a)(1) and 
(4) of this section, X and Y are treated as selling 60% and 40%, 
respectively, of the H stock. X includes in its gross income as a 
dividend $180 of the gain recognized on the sale. Because Y is a foreign 
corporation that is not a CFC, neither section 1248 nor section 964 
applies to the sale of Y's 40% share of the H stock.
    (iii) Alternative facts. If, instead, X owned its 60% interest in Z 
through another foreign partnership, the result would be the same.

    (b) Sale or exchange. For purposes of section 1248(a), the term sale 
or exchange includes the receipt of a distribution which is treated as 
in exchange for stock under section 302(a) (relating to distributions in 
redemption of stock) or section 331(a) (relating to distributions in 
complete liquidation of a corporation). For purposes of section 1248(a), 
gain recognized by a shareholder under section 301(c)(3) in connection 
with a distribution of property by a corporation with respect to its 
stock shall be treated as gain from the sale or exchange of stock of 
such corporation.
    (c) Gain recognized. Section 1248(a) applies to a sale or exchange 
of stock in a foreign corporation only if gain is recognized in whole or 
in part upon the

[[Page 432]]

sale or exchange. Thus, for example, if a United States person exchanges 
stock in a foreign corporation and no gain is recognized on the exchange 
under section 332, 351, 354, 355, 356, or 361, taking into account the 
application of section 367, then no amount is includible in the gross 
income of the person as a dividend under section 1248(a). But see 
Sec. Sec.  1.1248(f)-1 and 1.1248(f)-2, providing that a domestic 
distributing corporation must include in gross income amounts under 
section 1248(f) as a result of certain foreign stock distributed 
pursuant to section 337, 355(c)(1), or 361(c)(1) (in certain cases 
without regard to the amount of gain realized by the domestic 
distributing corporation in the distribution).
    (d) Credit for foreign taxes. (1) If a domestic corporation includes 
an amount in its gross income as a dividend under section 1248(a) upon a 
sale or exchange of stock in a foreign corporation (referred to as a 
first tier corporation), and if on the date of the sale or exchange the 
domestic corporation owns directly at least 10 percent of the voting 
stock of the first tier corporation:
    (i) The foreign tax credit provisions of sections 901 through 908 
shall apply in the same manner and subject to the same conditions and 
limitations as if the first tier corporation on such date distributed to 
the domestic corporation as a dividend that portion of the amount 
included in gross income under section 1248(a) which does not exceed the 
earnings and profits of the first tier corporation attributable to the 
stock under Sec.  1.1248-2 or Sec.  1.1248-3, as the case may be, and
    (ii) If on such date such first tier corporation owns directly 50 
percent or more of the voting stock of a lower tier corporation 
described in paragraph (a)(3) of Sec.  1.1248-2 or paragraph (a)(3) of 
Sec.  1.1248-3, as the case may be (referred to as a second tier 
corporation), then the foreign tax credit provisions of sections 901 
through 905 shall apply in the same manner and subject to the same 
conditions and limitations as if on such date (a) the domestic 
corporation owned directly that percentage of the stock in the second 
tier corporation which such domestic corporation is considered to own by 
reason of the application of section 958(a)(2), and (b) the second tier 
corporation had distributed to the domestic corporation as a dividend 
that portion of the amount included in gross income under section 
1248(a) which does not exceed the earnings and profits of the second 
tier corporation attributable to such stock under Sec.  1.1248-2 or 
Sec.  1.1248-3, as the case may be.
    (2) A credit shall not be allowed under subparagraph (1) of this 
paragraph in respect of taxes which are not actually paid or accrued. 
For the inclusion as a dividend in the gross income of a domestic 
corporation of an amount equal to the taxes deemed paid by such 
corporation under section 902(a)(1), see section 78.
    (3) If subparagraph (1)(ii) of this paragraph applies, and if the 
amount included in gross income under section 1248(a) upon the sale or 
exchange of the stock in a first tier corporation described in 
subparagraph (1)(ii) of this paragraph is less than the sum of the 
earnings and profits of the first tier corporation attributable to such 
stock under Sec.  1.1248-2 or Sec.  1.1248-3, as the case may be, plus 
the earnings and profits of the second tier corporation attributable to 
such stock under Sec.  1.1248-2 or Sec.  1.1248-3, as the case may be, 
then the amount considered distributed to the domestic corporation as a 
dividend shall be determined by multiplying the amount included in gross 
income under section 1248(a) by:
    (i) For purposes of applying subparagraph (1)(i) of this paragraph, 
the percentage that (a) the earnings and profits of the first tier 
corporation attributable to such stock under Sec.  1.1248-2 or Sec.  
1.1248-3, as the case may be, bears to (b) the sum of the earnings and 
profits of the first tier corporation attributable to such stock under 
Sec.  1.1248-2 or Sec.  1.1248-3, as the case may be, plus the earnings 
and profits of the second tier corporation attributable to such stock 
under Sec.  1.1248-2 or Sec.  1.1248-3, as the case may be, and
    (ii) For purposes of applying subparagraph (1)(ii) of this 
paragraph, the percentage that (a) the earnings and profits of the 
second tier corporation attributable to such stock under Sec.  1.1248-2 
or Sec.  1.1248-3, as the case may be, bears to (b) the sum referred to 
in subdivision (i)(b) of this subparagraph.

[[Page 433]]

    (4) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. On June 30, 1964, domestic corporation D owns 10 percent 
of the voting stock of controlled foreign corporation X. On such date, D 
sells a share of X stock and includes $200 of the gain on the sale in 
its gross income as a dividend under section 1248(a). X does not own any 
stock of a lower tier corporation referred to in paragraph (a)(3) of 
Sec.  1.1248-3. D uses the calendar year as its taxable year and instead 
of deducting foreign taxes under section 164, D chooses the benefits of 
the foreign tax credit provisions for 1964. If D had included $200 in 
its gross income as a dividend with respect to a distribution from X on 
June 30, 1964, the amount of the foreign income taxes paid by X which D 
would be deemed to have paid under section 902(a) in respect of such 
distribution would be $60. Thus, in respect of the $200 included in D's 
gross income as a dividend under section 1248(a), and subject to the 
applicable limitations and conditions of sections 901 through 905, D is 
entitled under this paragraph to a foreign tax credit of $60 for 1964.
    Example 2. On June 30, 1965, domestic corporation D owns all of the 
voting stock of foreign corporation Y, and Y (the first tier 
corporation) owns all of the voting stock of foreign corporation Z (a 
second tier corporation). On such date, D sells a block of Y stock and 
includes $400 of the gain on the sale in its gross income as a dividend 
under section 1248(a). The earnings and profits attributable under Sec.  
1.1248-3 to the block are $600 from Y and $1,800 from Z. D uses the 
calendar year as its taxable year and instead of deducting foreign taxes 
under section 164, D chooses the benefits of the foreign tax credit 
provisions for 1965. For purposes of applying the foreign tax credit 
provisions, Y is considered under subparagraph (3) of this paragraph to 
have distributed to D a dividend of $100 ($400 x 600/2400) and Z is 
considered to have so distributed to D a dividend of $300 ($400 x 1800/
2400). If D had included $100 in its gross income as a dividend with 
respect to a distribution from Y on June 30, 1965, the amount of foreign 
income taxes paid by Y which D would be deemed to have paid under 
section 902(a) in respect of such distribution is $80. If D had owned 
the stock in Z directly, and if D had included $300 in its gross income 
as a dividend with respect to a distribution from Z, the amount of 
foreign income taxes paid by Z which D would be deemed to have paid 
under section 902(a) in respect of such distribution is $120. Thus, in 
respect of the $400 included in D's gross income as a dividend under 
section 1248(a), and subject to the applicable limitations and 
conditions of sections 901 through 905, D is entitled under this 
paragraph to a foreign tax credit of $200 ($80 plus $120) for 1965.

    (e) Exceptions. Under section 1248(g), this section and Sec. Sec.  
1.1248-2 through 1.1248-8 do not apply to:
    (1) Distributions to which section 303 (relating to distributions in 
redemption of stock to pay death taxes) applies; or
    (2) Any amount to the extent that the amount is, under any other 
provision of the Internal Revenue Code (Code), treated as--
    (i) A dividend;
    (ii) Gain from the sale of an asset which is not a capital asset; or
    (iii) Gain from the sale of an asset held for not more than 1 year.
    (f) Installment method. (1) Gain from a sale or exchange to which 
section 1248 applies may be reported under the installment method if 
such method is otherwise available under section 453 of the Code. In 
such case, the income (other than interest) on each installment payment 
shall be deemed to consist of gain which is included in gross income 
under section 1248 as a dividend until all such gain has been reported, 
and the remaining portion (if any) of such income shall be deemed to 
consist of gain to which section 1248 does not apply. For treatment of 
amounts as interest on certain deferred payments, see section 483.
    (2) The application of this paragraph may be illustrated by the 
following example:

    Example: Jones contracts to sell stock in a controlled foreign 
corporation for $5,000 to be paid in 10 equal payments of $500 each, 
plus a sufficient amount of interest so that section 483 does not apply. 
He properly elects under section 453 to report under the installment 
method gain of $1,000 which is includible in gross income under section 
1248 as a dividend and gain of $500 which is a long-term capital gain. 
Accordingly, $150 of each of the first 6 installment payments and $100 
of the seventh installment payment are included in gross income under 
section 1248 as a dividend, and $50 of the seventh installment payment 
and $150 of each of the last 3 installment payments are long-term 
capital gain.
    (g) Effective/applicability date. (1) The third sentence in 
paragraph (a)(1), paragraph (a)(4), and paragraph (a)(5), Example 4, of 
this section apply to income inclusions that occur on or after

[[Page 434]]

July 30, 2007. A taxpayer may elect to apply paragraph (a)(4) of this 
section to income inclusions in open taxable years provided that it 
consistently applies paragraph (a)(4) of this section for income 
inclusions in the first year for which the election is applicable and in 
all subsequent years.
    (2) Paragraph (b) of this section applies to distributions that 
occur on or after February 10, 2009.
    (3) Paragraphs (c) and (e) of this section apply to transactions 
occurring on or after April 18, 2013.

[T.D. 6779, 29 FR 18130, Dec. 22, 1964, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980; T.D. 7961, 49 FR 26225, June 27, 1984; T.D. 9345, 
72 FR 41444, July 30, 2007; T.D. 9444, 74 FR 6828, Feb. 11, 2009; T.D. 
9585, 77 FR 24381, Apr. 24, 2012; T.D. 9614, 78 FR 17041, Mar. 19, 2013]



Sec.  1.1248-2  Earnings and profits attributable to a block of stock 
in simple cases.

    (a) General--(1) Manner of computation. For purposes of paragraph 
(a)(1) of Sec.  1.1248-1, if a United States person sells or exchanges a 
block of stock (as defined in paragraph (b) of this section) in a 
foreign corporation, and if the conditions of paragraph (c) of this 
section are satisfied in respect of the block, then the earnings and 
profits attributable to the block which were accumulated in taxable 
years of the corporation beginning after December 31, 1962, during the 
period such block was held (or was considered to be held by reason of 
the application of section 1223, taking into account Sec.  1.1248-8) by 
such person while such corporation was a controlled foreign corporation, 
shall be computed in accordance with the steps set forth in 
subparagraphs (2), (3), and (4) of this paragraph.
    (2) Step 1. (i) For each taxable year of the corporation beginning 
after December 31, 1962, the earnings and profits accumulated for each 
such taxable year by the corporation shall be computed in the manner 
prescribed in paragraph (d) of this section, and (ii) for the period the 
person held (or is considered to have held by reason of the application 
of section 1223, taking into account Sec.  1.1248-8) the block, the 
amount of earnings and profits attributable to the block shall be 
computed in the manner prescribed in paragraph (e) of this section.
    (3) Step 2. If the conditions of paragraph (c)(5)(ii) of this 
section must be satisfied in respect of stock in a lower tier foreign 
corporation which such person owns within the meaning of section 
958(a)(2), then (i) the earnings and profits accumulated for each such 
taxable year by such lower tier corporation shall be computed in the 
manner prescribed in paragraph (d) of this section, and (ii) for the 
period the person held (or is considered to have held by reason of the 
application of section 1223, taking into account Sec.  1.1248-8) the 
block, the amount of earnings and profits of the lower tier corporation 
attributable to the block shall be computed in the manner prescribed in 
paragraph (e) of this section applied as if such person owned directly 
the percentage of such stock in such lower tier corporation which such 
person owns within the meaning of section 958(a)(2).
    (4) Step 3. The amount of earnings and profits attributable to the 
block shall be the sum of the amounts computed under steps 1 and 2.
    (b) Block of stock. For purposes of this section, the term block of 
stock means a group of shares sold or exchanged in one transaction, but 
only if:
    (1) The amount realized, basis, and holding period are identical for 
each such share, and
    (2) In case, during the period the person held (or is considered to 
have held by reason of the application of section 1223) such shares, any 
amount was included under section 951 in the gross income of the person 
(or another person) in respect of the shares, the excess under paragraph 
(e)(3)(ii) of this section (computed as if each share were a block) is 
identical for each such share.
    (c) Conditions to application. This section shall apply only if the 
following conditions are satisfied:
    (1)(i) On each day of the period during which the block of stock was 
held (or is considered as held by reason of the application of section 
1223) by the person during taxable years of the corporation beginning 
after December 31, 1962, the corporation is a controlled foreign 
corporation, and
    (ii) On no such day is the corporation a foreign personal holding 
company (as

[[Page 435]]

defined in section 552) or a foreign investment company (as defined in 
section 1246(b)).
    (2) The corporation had only one class of stock, and the same number 
of shares of such stock were outstanding, on each day of each taxable 
year of the corporation beginning after December 31, 1962, any day of 
which falls within the period referred to in subparagraph (1) of this 
paragraph.
    (3) For each taxable year referred to in subparagraph (2) of this 
paragraph, the corporation is not a less developed country corporation 
(as defined in section 902(d)).
    (4) For each taxable year referred to in subparagraph (2) of this 
paragraph, the corporation does not make any distributions out of its 
earnings and profits other than distributions which, under section 316 
(as modified by section 959), are considered to be out of earnings and 
profits accumulated in taxable years beginning after December 31, 1962, 
during the period such person held (or is considered to have held by 
reason of the application of section 1223, taking into account Sec.  
1.1248-8) the block while such corporation was a controlled foreign 
corporation.
    (5)(i) If (a) on the date of the sale or exchange such person, by 
reason of his ownership of such block, owns within the meaning of 
section 958(a)(2) stock in another foreign corporation (referred to as a 
lower tier corporation), and (b) the conditions of paragraph (a)(2) of 
Sec.  1.1248-1 would be satisfied by such person in respect of such 
stock in the lower tier corporation if such person were deemed to have 
sold or exchanged such stock in the lower tier corporation on the date 
he actually sold or exchanged such block in the first tier corporation, 
then the conditions of subdivision (ii) of this subparagraph must be 
satisfied.
    (ii) In respect of stock in such lower tier corporation, (a) the 
conditions set forth in subparagraphs (1) through (4) of this paragraph 
(applied as if such person owned directly such stock in such lower tier 
corporation) must be met and (b) such person must own within the meaning 
of section 958(a)(2) the same percentage of the shares of such stock on 
each day which falls within the period referred to in subparagraph (1) 
of this paragraph.
    (d) Earnings and profits accumulated for a taxable year--(1) 
General. For purposes of this section, the earnings and profits 
accumulated for a taxable year of a foreign corporation shall be the 
earnings and profits for such year computed in accordance with the rules 
prescribed in Sec.  1.964-1 (relating to determination of earnings and 
profits for a taxable year of a controlled foreign corporation) and 
reduced by any distributions therefrom. If the stock in the corporation 
is sold or exchanged before any action is taken by or on behalf of the 
corporation under paragraph (c) of Sec.  1.964-1, the computation of 
earnings and profits under Sec.  1.964-1 for purposes of this section 
shall be made as if no elections had been made and no accounting method 
had been adopted.
    (2) Special rules. (i) The earnings and profits of the corporation 
accumulated:
    (a) For any taxable year beginning before January 1, 1967 (computed 
without any reduction for distributions), shall not include the excess 
of any item includible in gross income of the foreign corporation under 
section 882(b) as gross income derived from sources within the United 
States, and
    (b) For any taxable year beginning after December 31, 1966 (computed 
without any reduction for distributions), shall not include the excess 
of any item includible in gross income of the foreign corporation under 
section 882(b)(2) as income effectively connected for that year with the 
conduct by such corporation of a trade or business in the United States, 
whether derived from sources within or from sources without the United 
States,

Over any deductions allocable to such item under section 882(c). 
However, if the sale or exchange of stock in the foreign corporation by 
the United States person occurs before January 1, 1967, the provisions 
of (a) of this subdivision apply with respect to such sale or exchange 
even though the taxable year begins after December 31, 1966. See section 
1248(d)(4). Any item which is required to be excluded from gross income, 
or which is taxed at a reduced rate, under an applicable treaty 
obligation of the United States shall not be

[[Page 436]]

excluded under this subdivision from earnings and profits accumulated 
for a taxable year (computed without any reduction for distributions).
    (ii) If a foreign corporation adopts a plan of complete liquidation 
in a taxable year of the corporation beginning after December 31, 1962, 
and if because of the application of section 337(a) gain or loss would 
not be recognized by the corporation from the sale or exchange of 
property if the corporation were a domestic corporation, then the 
earnings and profits of the corporation accumulated for the taxable year 
(computed without any reduction for distributions) shall be determined 
without regard to the amount of such gain or loss. See section 
1248(d)(2). For the nonapplication of section 337(a) to a liquidation by 
a collapsible corporation (as defined in section 341) and to certain 
other liquidations, see section 337(c).
    (e) Earnings and profits attributable to block--(1) General. Except 
as provided in subparagraph (3) of this paragraph, the earnings and 
profits attributable to a block of stock of a controlled foreign 
corporation for the period a United States person held (or is considered 
to have held by reason of the application of section 1223, taking into 
account Sec.  1.1248-8) the block are an amount equal to:
    (i) The sum of the earnings and profits accumulated for each taxable 
year of the corporation beginning after December 31, 1962 (computed 
under paragraph (d) of this section) during such period, multiplied by
    (ii) The percentage that (a) the number of shares in the block, 
bears to (b) the total number of shares of the corporation outstanding 
during such period.
    (2) Special rule. For purposes of computing the sum referred to in 
subparagraph (1)(i) of this paragraph, in case the block was held (or is 
considered as held by reason of the application of section 1223, taking 
into account Sec.  1.1248-8) during a taxable year beginning after 
December 31, 1962, but not on each day of such taxable year, there shall 
be included in such sum only that portion which bears the same ratio to 
(i) the total earnings and profits for such taxable year (computed under 
paragraph (d) of this section), as (ii) the number of days during such 
taxable year the block was held (or is considered as so held), bears to 
(iii) the total number of days in such taxable year.
    (3) Amounts included in gross income under section 951. (i) If, 
during the period the person held (or is considered to have held by 
reason of the application of section 1223, taking into account Sec.  
1.1248-8) the block, any amount was included under section 951 in the 
gross income of such person (or of another person whose holding of the 
stock sold or exchanged is, by reason of the application of section 
1223, attributed to such person) in respect of the block, then the 
earnings and profits attributable to the block for such period shall be 
an amount equal to (a) the earnings and profits attributable to the 
block which would have been computed under subparagraph (1) of this 
paragraph if this subparagraph did not apply, reduced by (b) the excess 
computed under subdivision (ii) of this subparagraph. See section 
1248(d)(1).
    (ii) The excess computed under this subdivision is the excess (if 
any) of (a) amounts included under section 951 in the gross income of 
such person (or such other person) in respect of the block during such 
period, over (b) the portion of such amounts which, in any taxable year 
of such person (or such other person), resulted in an exclusion from the 
gross income of such person (or such other person) under section 
959(a)(1) (relating to exclusion from gross income of distributions of 
previously taxed earnings and profits).
    (iii) This subparagraph shall apply notwithstanding an election 
under section 962 by such person to be subject to tax at corporate 
rates.
    (4) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. On May 26, 1965, Green, a United States person, purchases 
at its fair market value a block of 25 of the 100 outstanding shares of 
the only class of stock of controlled foreign corporation F. He sells 
the block on January 1, 1968. In respect of the block, Green did not 
include any amount in his gross income under section 951. F uses the 
calendar year as its taxable year and does not own stock in any lower 
tier corporation referred to in paragraph (c)(5)(i) of this section. All 
of the conditions of paragraph (c) of

[[Page 437]]

this section are satisfied in respect of the block. The earnings and 
profits accumulated by F (computed under paragraph (d) of this section) 
are $10,000 for 1965, $13,000 for 1966, and $11,000 for 1967. The 
earnings and profits of F attributable to the block are $7,500, 
determined as follows:

Sum of earnings and profits accumulated by F during period
 block was held:
    For 1965 (219/365 x $10,000)............................      $6,000
    For 1966................................................     $13,000
    For 1967................................................     $11,000
                                                             -----------
      Sum...................................................     $30,000
Multiplied by:
    Number of shares in block (25), divided by total number          25%
     of shares outstanding (100)............................
                                                             ===========
      Earnings and profits attributable to block............      $7,500
 

    Example 2. Assume the same facts as in example (1) except that in 
respect of the block Green includes in his gross income under section 
951 the total amount of $2,800 for 1965 and 1966, and because of such 
inclusion the amount of $2,800 which was distributed to Green by F on 
January 15, 1967, is excluded from his gross income under section 
959(a)(1). Accordingly, the earnings and profits of F attributable to 
the block are $7,000, determined as follows:

Earnings and profits attributable to the block, as computed       $7,500
 in example (1).............................................
Minus:
  Excess of amount included in Green's gross income under            500
   section 951 ($2,800), over portion thereof which resulted
   in an exclusion under section 959(a)(1) ($2,300).........
                                                             -----------
      Earnings and profits attributable to block............       7,000
 

    Example 3. Assume the same facts as in example (1) except that on 
each day beginning on January 1, 1966 (the date controlled foreign 
corporation G was organized) through January 1, 1968, F owns 80 of the 
100 outstanding shares of the only class of G stock. Since, by reason of 
his ownership of 25 shares of F stock, Green owns within the meaning of 
section 958(a)(2) the equivalent of 20 shares of G stock (\25/100\ of 80 
shares), G is a lower tier corporation referred to in paragraph 
(c)(5)(i)(a) of this section. If Green had sold the 20 shares of G stock 
on January 1, 1968, the date he actually sold the block of F stock, the 
conditions of paragraph (a)(2) of Sec.  1.1248-1 would be satisfied in 
respect of the G stock, and, accordingly, the conditions of paragraph 
(c)(5)(ii) of this section must be satisfied. Assume further that such 
conditions are satisfied, that G uses the calendar year as its taxable 
year, and that the earnings and profits accumulated by G (computed under 
paragraph (d) of this section) are $19,000 for 1966 and $21,000 for 
1967. The earnings and profits of F and of G attributable to the block 
are $15,500, determined as follows:

Sum of earnings and profits accumulated by G for period          $40,000
 Green owned G stock within the meaning of section 958(a)(2)
 ($19,000 plus $21,000).....................................
Multiplied by:
  Number of G shares deemed owned within the meaning of              20%
   section 958(a)(2) by Green (20), divided by total number
   of G shares outstanding (100)............................
                                                             -----------
  Earnings and profits of G attributable to block...........      $8,000
  Earnings and profits of F attributable to block, as             $7,500
   determined in example (1)................................
                                                             -----------
      Total earnings and profits attributable to block......     $15,000
 


[T.D. 6779, 29 FR 18131, Dec. 22, 1964, as amended by T.D. 7293, 38 FR 
32803, Nov. 28, 1973; T.D. 9345, 72 FR 41445, July 30, 2007]



Sec.  1.1248-3  Earnings and profits attributable to stock in complex cases.

    (a) General--(1) Manner of computation. For purposes of paragraph 
(a)(1) of Sec.  1.1248-1, if a United States person sells or exchanges 
stock in a foreign corporation, and if the provisions of Sec.  1.1248-2 
do not apply, then the earnings and profits attributable to the stock 
which were accumulated in taxable years of the corporation beginning 
after December 31, 1962, during the period or periods such stock was 
held (or was considered to be held by reason of the application of 
section 1223, taking into account Sec.  1.1248-8) by such person while 
such corporation was a controlled foreign corporation, shall be computed 
in accordance with the steps set forth in subparagraphs (2), (3), and 
(4) of this paragraph.
    (2) Step 1. For each taxable year of the corporation beginning after 
December 31, 1962, (i) the earnings and profits accumulated for such 
taxable year by the corporation shall be computed in the manner 
prescribed in paragraph (b) of this section, (ii) the person's tentative 
ratable share of such earnings and profits shall be computed in the 
manner prescribed in paragraph (c) or (d) (whichever is applicable) of 
this section, and (iii) the person's ratable share of such earnings and 
profits shall be computed by adjusting the tentative ratable share in 
the manner prescribed in paragraph (e) of this section.
    (3) Step 2. If the provisions of paragraph (f) of this section 
(relating to earnings and profits of lower tier foreign corporations) 
apply, the amount

[[Page 438]]

of the person's ratable share of the earnings and profits accumulated by 
each lower tier corporation attributable to any such taxable year (i) 
shall be computed in the manner prescribed by paragraph (f) of this 
section, and (ii) shall be added to such person's ratable share for such 
taxable year determined in step 1.
    (4) Step 3. The amount of earnings and profits attributable to the 
share shall be the sum of the ratable shares computed for each such 
taxable year in the manner prescribed in steps 1 and 2.
    (5) Share or block. In general, the computation under this paragraph 
shall be made separately for each share of stock sold or exchanged, 
except that if a group of shares constitute a block of stock the 
computation may be made in respect of the block. For purposes of this 
section, the term block of stock means a group of shares sold or 
exchanged in one transaction, but only if (i) the amount realized, 
basis, and holding period are identical for each such share, and (ii) 
the adjustments (if any) under paragraphs (e) and (f)(5) of this section 
of the tentative ratable shares would be identical for each such share 
if such adjustments were computed separately for each such share.
    (6) Deficit in earnings and profits. For purposes of this section 
and Sec. Sec.  1.1248-2 through 1.1248-8, in respect of a taxable year, 
the term earnings and profits accumulated for a taxable year (but only 
if computed under paragraph (b) of this section) includes a deficit in 
earnings and profits accumulated for such taxable year. Similarly, a 
tentative ratable share, or a ratable share, may be a deficit.
    (7) Examples. The application of the provisions of this paragraph 
may be illustrated by the following examples:

    Example 1. On December 31, 1967, Brown sells 10 shares of stock in 
foreign corporation X, which uses the calendar year as its taxable year. 
The 10 shares constitute a block of stock under subparagraph (5) of this 
paragraph. Under step 1, Brown's ratable shares of the earnings and 
profits of X attributable to the block are as follows:

------------------------------------------------------------------------
                                                                Ratable
                      Taxble year of X                          shares
------------------------------------------------------------------------
1963........................................................        $100
1964........................................................         150
1965........................................................      \1\ 50
1966........................................................          50
1967........................................................         100
                                                             -----------
    Sum.....................................................         350
------------------------------------------------------------------------
\1\ Deficit.


The amount of the earnings and profits attributable to such block under 
step 3 is $350.
    Example 2. Assume the same facts as in example (1), except that in 
respect of X there are lower tier corporations Y and Z to which the 
provisions of paragraph (f) of this section apply. Brown's ratable 
shares of the earnings and profits of X, Y, and Z attributable to the 
block under steps 1 and 2 for each taxable year of X are as follows:

------------------------------------------------------------------------
                                              Ratable shares
        Taxable year of X        ---------------------------------------
                                      X         Y         Z       Total
------------------------------------------------------------------------
1963............................      $100       $40       $20      $160
1964............................       150        40       -60       130
1965............................       -50        30        50        30
1966............................        50        50        30       130
1967............................       100       -40        40       100
                                 ---------------------------------------
    Sum.........................       350       120        80       550
------------------------------------------------------------------------


The amount of the earnings and profits attributable to such block under 
step 3 is $550.

    (b) Earnings and profits accumulated for a taxable year--(1) 
General. For purposes of this section, the earnings and profits 
accumulated for a taxable year of a foreign corporation shall be the 
earnings and profits for such year, computed in accordance with the 
rules prescribed in Sec.  1.964-1 (relating to determination of earnings 
and profits for a taxable year of a controlled foreign corporation), 
except that (i) the special rules of subparagraph (2) of this paragraph 
shall apply, and (ii) adjustments shall be made under subparagraph (3) 
of this paragraph for distributions made by the corporation during such 
taxable year. If the stock in the corporation is sold or exchanged 
before any action is taken by or on behalf of the corporation under 
paragraph (c) of Sec.  1.964-1, the computation of earnings and profits 
under Sec.  1.964-1 for purposes of this section shall be made as if no 
elections had been made and no accounting method had been adopted. The 
amount of earnings and profits accumulated for a taxable year of a 
foreign corporation, as computed under this paragraph, is not 
necessarily the same amount as the earnings and profits of the taxable 
year computed under section 316(a)(1)

[[Page 439]]

or paragraph (d) of Sec.  1.1248-2. Thus, for example, if a distribution 
with respect to stock is in excess of the amount of earnings and profits 
of the taxable year computed under section 316(a)(2), such excess is 
treated under section 316(a)(2), or paragraph (d) of Sec.  1.1248-2 as 
made out of any earnings and profits accumulated in prior taxable years, 
whereas the amount of such excess may create, or increase, a deficit in 
the earnings and profits accumulated for the taxable year as computed 
under this paragraph. See subparagraph (3) of this paragraph.
    (2) Special rules. (i) The earnings and profits of the corporation 
accumulated:
    (a) For any taxable year beginning before January 1, 1967, shall not 
include the excess of any item includible in gross income of the foreign 
corporation under section 882(b) as gross income derived from sources 
within the United States, and
    (b) For any taxable year beginning after December 31, 1966, shall 
not include the excess of any item includible in gross income of the 
foreign corporation under section 882(b)(2) as income effectively 
connected for that year with the conduct by such corporation of a trade 
or business in the United States, whether derived from sources within or 
from sources without the United States,

Over any deductions allocable to such item under section 882(c). 
However, if the sale or exchange of stock in the foreign corporation by 
the U.S. person occurs before January 1, 1967, the provisions of (a) of 
this subdivision apply with respect to such sale or exchange even though 
the taxable year begins after December 31, 1966. See section 1248(d)(4). 
Any item which is required to be excluded from gross income, or which is 
taxed at a reduced rate, under an applicable treaty obligation of the 
United States shall not be excluded under this subdivision from earnings 
and profits accumulated for a taxable year.
    (ii) If a foreign corporation adopts a plan of complete liquidation 
in a taxable year of the corporation beginning after December 31, 1962, 
and if because of the application of section 337(a) gain or loss would 
not be recognized by the corporation from the sale or exchange of 
property if the corporation were a domestic corporation, then the 
earnings and profits of the corporation accumulated for the taxable year 
shall be determined without regard to the amount of such gain or loss. 
See section 1248(d)(2). For the nonapplication of section 337(a) to a 
liquidation by a collapsible corporation (as defined in section 341) and 
to certain other liquidations, see section 337(c).
    (3) Adjustment for distributions. (i) The earnings and profits of a 
foreign corporation accumulated for a taxable year (computed without 
regard to this subparagraph) shall be reduced (if necessary below zero 
so as to create a deficit), or a deficit in such earnings and profits 
shall be increased, by the amount of the distributions (other than in 
redemption of stock under section 302(a) or 303) made by the corporation 
in respect of its stock during such taxable year (a) out of such 
earnings and profits, or (b) out of earnings and profits accumulated for 
prior taxable years beginning after December 31, 1962 (computed under 
this paragraph). Except for purposes of applying this subparagraph, the 
application of the preceding sentence shall not affect the amount of 
earnings and profits accumulated for any such prior taxable year.
    (ii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. X Corporation, which uses the calendar year as its 
taxable year, was organized on January 1, 1965, and was a controlled 
foreign corporation on each day of 1965. The amount of X's earnings and 
profits accumulated for 1965 (computed under this paragraph without 
regard to the adjustment for distributions under this subparagraph) is 
$400,000, of which $100,000 is distributed by X as dividends during 
1965. The amount of X's earnings and profits accumulated for 1965 
(computed under this paragraph) is $300,000 (that is, $400,000 minus 
$100,000). The result would be the same even if X was not a controlled 
foreign corporation on each day of 1965.
    Example 2. Assume the same facts as in example (1). Assume further 
that the amount of X's earnings and profits accumulated for 1966 
(computed under this paragraph without regard to the adjustment for 
distributions under this subparagraph) is $150,000, and that

[[Page 440]]

X distributes the amount of $260,000 as dividends during 1966. Since 
$150,000 of the distribution is from earnings and profits accumulated 
for 1966 (computed without regard to the adjustment for distributions 
under this subparagraph), and since $110,000 is from earnings and 
profits accumulated for 1965, the earnings and profits of X accumulated 
for 1966 are a deficit of $110,000 (that is, $150,000 minus $260,000). 
However, the earnings and profits accumulated for 1965 are still 
$300,000 for purposes of computing in the manner prescribed in paragraph 
(c) of this section a person's tentative ratable share.

    (c) Tentative ratable share if earnings and profits accumulated for 
a taxable year not less than zero--(1) General rule. For purposes of 
paragraph (a)(2)(ii) of this section, in respect of a share (or block) 
of stock in a foreign corporation, if the amount of the earnings and 
profits accumulated for a taxable year of the corporation (computed 
under paragraph (b) of this section), beginning after December 31, 1962, 
is not less than zero, then the person's tentative ratable share for 
such taxable year shall be equal to:
    (i)(a) Such amount (if the computation is made in respect of a 
block, multiplied by the number of shares in the block), divided by (b) 
the number of shares in the corporation outstanding, or deemed under 
subparagraph (2) of this paragraph to be outstanding, on each day of 
such taxable year, multiplied by
    (ii) The percentage that (a) the number of days in such taxable year 
of the corporation during the period the person held (or was considered 
to have held by reason of the application of section 1223, taking into 
account Sec.  1.1248-8) the share (or block) while the corporation was a 
controlled foreign corporation, bears to (b) the total number of days in 
such taxable year.
    (2) Shares deemed outstanding for a taxable year. For purposes of 
this section and Sec. Sec.  1.1248-4 through 1.1248-7, if the number of 
shares of stock in a foreign corporation outstanding on each day of a 
taxable year of the corporation is not constant, then the number of such 
shares deemed outstanding on each such day shall be the sum of the 
fractional amounts in respect of each share outstanding on any day of 
the taxable year. The fractional amount in respect of a share shall be 
determined by dividing (i) the number of days in the taxable year during 
which such share was outstanding (excluding the day the share became 
outstanding, but including the day the share ceased to be outstanding), 
by (ii) the total number of days in such taxable year.
    (3) Examples. The application of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. On each day of 1964, S owns a block consisting of 30 of 
the 100 shares of the only class of stock outstanding in F Corporation, 
and on each such day F is a controlled foreign corporation. F uses the 
calendar year as its taxable year and F's earnings and profits 
accumulated for 1964 (computed under paragraph (b) of this section) are 
$10,000. S's tentative ratable share with respect to the block is 
$3,000, computed as follows:

Earnings and profits accumulated for taxable year...........     $10,000
Multiplied by:
  Number of shares in block (30), divided by number of               30%
   shares outstanding (100).................................
Multiplied by:
  Number of days in 1964 S held block while F was a                 100%
   controlled foreign corporation (365), divided by number
   of days in 1964 (365)....................................
                                                             -----------
    Tentative ratable share for block.......................      $3,000
 

    Example 2. On December 31, 1964, X Corporation, a controlled foreign 
corporation which uses the calendar year as its taxable year, had 100 
shares of one class of stock outstanding, 15 of which were owned by T. 
T's 15 shares were redeemed by X on March 14, 1965. On December 31, 
1965, in addition to the remaining 85 shares, 10 new shares of stock 
(which were issued on May 26, 1965) were outstanding. Thus, during 1965, 
15 shares were outstanding for 73 days, 10 for 219 days, and 85 for 365 
days. The earnings and profits (computed under paragraph (b) of this 
section) accumulated for X's taxable year ending on December 31, 1965, 
are $18,800. T's tentative ratable share with respect to one share of 
stock is $40, computed as follows:

Earnings and profits accumulated for taxable year...........     $18,800
Divided by:
  Number of shares deemed outstanding each day
   of 1965:.....................................
    15 for 73 days (15 x 73/365)................           3
    10 for 219 days (10 x 219/365)..............           6
    85 for 365 days (35 x 365/365)..............          85
                                                 ============
  Total number of shares deemed outstanding each day of 1965          94
                                                 -------------
Earnings and profits accumulated per share..................        $200

[[Page 441]]

 
Multiplied by:
  Number of days in 1965 T held his share while X was a              20%
   controlled foreign corporation (73), divided by number of
   days in 1965 (365).......................................
                                                 -------------
    T's tentative ratable share per share of stock..........         $40
 

    Example 3. Assume the same facts as in example (2) except that X was 
not a controlled foreign corporation after January 31, 1965. T's 
tentative ratable share with respect to one share of stock for 1965 is 
$17, computed as follows:

Earnings and profits accumulated per share, determined in           $200
 example (2)................................................
Multiplied by:
  Number of days in 1965 T held X stock while X was a               8.5%
   controlled foreign corporation (31), divided by number of
   days in 1965 (365).......................................
                                                 -------------
    Tentative ratable share.................................         $17
 

    (4) More than one class of stock. If a foreign corporation for a 
taxable year has more than one class of stock outstanding, then before 
applying subparagraphs (1) and (2) of this paragraph the earnings and 
profits accumulated for the taxable year of the corporation (computed 
under paragraph (b) of this section) shall be allocated to each class of 
stock in accordance with the principles of paragraph (e) (2) and (3) of 
Sec.  1.951-1, applied as if the corporation were a controlled foreign 
corporation on each day of such taxable year.
    (d) Tentative ratable share if deficit in earnings and profits 
accumulated for taxable year--(1) General rule. For purposes of 
paragraph (a)(2)(ii) of this section, in respect of a share (or block) 
of stock in a foreign corporation, if there is a deficit in the earnings 
and profits accumulated for a taxable year of the corporation (computed 
under paragraph (b) of this section) beginning after December 31, 1962, 
the person's tentative ratable share for such taxable year shall be an 
amount equal to the sum of the partial tentative ratable shares computed 
under subparagraphs (2) and (3) of this paragraph.
    (2) Operating deficit. The partial tentative ratable share under 
this subparagraph is computed in 2 steps. First, compute (under 
paragraph (b) of this section without regard to the adjustment for 
distributions under subparagraph (3) thereof) the deficit (if any) in 
earnings and profits accumulated for such taxable year. Second, compute 
the partial tentative ratable share in the same manner as the tentative 
ratable share for such taxable year would be computed under paragraph 
(c) of this section if such deficit were the amount referred to in 
paragraph (c)(1)(i)(a) of this section.
    (3) Deficit from distributions. The partial tentative ratable share 
under this subparagraph is computed in 2 steps. First, compute and treat 
as a deficit only that portion of the adjustment for distributions under 
paragraph (b)(3) of this section for such taxable year which is 
attributable under subparagraph (4) of this paragraph to distributions 
out of earnings and profits accumulated during prior taxable years of 
the corporation beginning after December 31, 1962, during the period or 
periods the corporation was a controlled foreign corporation and the 
share (or block) of stock was owned by a United States shareholder (as 
defined in section 951(b) and the regulations thereunder). Second, 
compute the partial tentative ratable share for such taxable year in the 
same manner as the tentative ratable share for such taxable year would 
be computed under paragraph (c) of this section if (i) such deficit were 
the amount referred to in paragraph (c)(1)(i)(a) of this section, and 
(ii) the corporation were a controlled foreign corporation on each day 
of such taxable year.
    (4) Order of distributions. For purposes of applying subparagraph 
(3) of this paragraph only, the adjustment for distributions under 
paragraph (b)(3) of this section for a taxable year of a foreign 
corporation shall be treated as attributable first to distributions of 
earnings and profits for the taxable year (computed under paragraph (b) 
of this section without regard to such adjustment) to the extent 
thereof, and then to distributions out of the most recent of earnings 
and profits accumulated during prior taxable years beginning after 
December 31, 1962 (computed under paragraph (b) of this section). If the 
foreign corporation was a controlled foreign corporation during a prior 
taxable year for a period or periods which was only part of such prior 
taxable year, then for purposes of the preceding sentence (i) such 
taxable year shall be divided into periods the

[[Page 442]]

corporation was or was not a controlled foreign corporation, (ii) 
distributions of the earnings and profits accumulated during such prior 
taxable year shall be considered made from the most recent period first, 
and (iii) the earnings and profits accumulated during such prior taxable 
year shall be allocated to a period during such year in the same 
proportion as the number of days in the period bears to the number of 
days in such year. Except for purposes of applying subparagraph (3) of 
this paragraph, the application of this subparagraph shall not affect 
the amount of earnings and profits accumulated for any such prior 
taxable year (computed under paragraph (b) of this section).
    (5) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. On each day of 1965 X Corporation, which uses the 
calendar year as its taxable year, was a controlled foreign corporation 
having 100 shares of one class of stock outstanding, a block of 25 of 
which were owned by T, who acquired them in 1962 and sold them in 1967. 
The deficit in X's earnings and profits accumulated for 1965 (computed 
under paragraph (b) of this section without regard to the adjustment for 
distributions under subparagraph (3) thereof) is $100,000, and thus in 
respect of the block T's partial tentative ratable share computed under 
subparagraph (2) of this paragraph is a deficit of $25,000 (that is, 
$100,000 x 25/100). During 1965 X does not make any distributions in 
respect of its stock, and thus in respect of the block T's partial 
tentative ratable share computed under subparagraph (3) of this 
paragraph is zero. Accordingly, T's tentative ratable share in respect 
of the block of X stock for 1965 is a deficit of $25,000. If, however, X 
was a controlled foreign corporation for only 292 days during 1965, T's 
tentative ratable share in respect of the block for 1965 would be a 
deficit of $20,000 (that is, $25,000 x 292/365).
    Example 2. (i) Assume the same facts as in example (1) except that 
at no time during 1965 is X a controlled foreign corporation and that 
during 1965 X distributes $80,000 with respect to its stock. Assume 
further that X was a controlled foreign corporation on each day of 1964, 
but only for the first 146 days of 1963, and that X's earnings and 
profits accumulated for prior taxable years computed under paragraph (b) 
of this section are $70,000 for 1964 and $20,000 for 1963.
    (ii) Since X was not a controlled foreign corporation on any day of 
1965, in respect of the block T's partial tentative ratable share 
computed under subparagraph (2) of this paragraph is zero.
    (iii) The partial tentative ratable share under subparagraph (3) of 
this paragraph is computed in the following manner: For 1965 the 
adjustment for distributions under paragraph (b)(3) of this section is 
$80,000. Under subparagraph (4) of this paragraph $70,000 of such 
adjustment is attributable to the distribution of all of the earnings 
and profits accumulated during 1964, on every day of which X was a 
controlled foreign corporation, and $10,000 of the adjustment is 
attributable to the distribution of $10,000 of the earnings and profits 
accumulated for 1963. The portion of the earnings and profits 
accumulated by X in 1963 attributable to the first 146 days in 1963 
during which X was a controlled foreign corporation is $8,000 (that is, 
$20,000 x 146/365), and the portion attributable to the period in 1963 
during which X was not a controlled foreign corporation is $12,000 (that 
is, $20,000 x 219/365). Under subparagraph (4)(ii) of this paragraph, 
the distribution in 1965 of $10,000 of earnings and profits accumulated 
during 1963 is attributable to the more recent period in 1963, that is, 
the period X was not a controlled foreign corporation. Accordingly, the 
portion of the adjustment for distributions under paragraph (b)(3) of 
this section attributable to earnings and profits accumulated during 
periods X was a controlled foreign corporation is $70,000, and in 
respect of the block T's partial tentative ratable share under 
subparagraph (3) of this paragraph is a deficit of $17,500 (that is, 
$70,000 x 25/100).
    (iv) T's tentative ratable share in respect of the block of X stock 
for 1965 is a deficit of $17,500 (that is, the sum of the partial 
tentative ratable share for the block computed under subparagraph (2) of 
this paragraph, zero, plus the partial tentative ratable share for the 
block computed under subparagraph (3) of this paragraph, a deficit of 
$17,500).
    (v) Assume that X had 100 shares of one class of stock outstanding 
on each day of 1964 and 1963. Notwithstanding the distributions in 1965 
of earnings and profits accumulated during 1964 and 1963 (computed under 
paragraph (b) of this section), nevertheless, in respect of the block 
T's tentative ratable share for 1964 is $17,500 (that is, earnings and 
profits accumulated during 1964 so computed of $70,000, multiplied by 25 
shares/100 shares) and in respect of the block T's tentative ratable 
share for 1963 is $2,000 (that is, earnings and profits accumulated 
during 1963 so computed of $20,000, multiplied by 25 shares/100 shares, 
and multiplied by the percentage that the number of days in 1963 on 
which X was a controlled foreign corporation bears to the total number 
of days in 1963, 146/365).
    Example 3. Assume the same facts as in example (2) except that X was 
a controlled foreign corporation on each day of 1965. The tentative 
ratable share with respect to the

[[Page 443]]

block of stock for 1965 is a deficit of $42,500, that is, the sum of the 
partial tentative ratable share under subparagraph (2) of this paragraph 
(as determined in example (1)), a deficit of $25,000, plus the partial 
tentative ratable share under subparagraph (3) of this paragraph (as 
determined in example (2)), a deficit of $17,500.

    (6) More than one class of stock. If a foreign corporation for a 
taxable year has more than one class of stock outstanding, then before 
applying subparagraph (1) of this paragraph the earnings and profits 
accumulated for the taxable year of the corporation (computed under 
paragraph (b) of this section) shall be allocated to each class of stock 
in accordance with the principles of paragraph (e) (2) and (3) of Sec.  
1.951-1, applied as if the corporation were a controlled foreign 
corporation on each day of such taxable year.
    (e) Ratable share of earnings and profits accumulated for a taxable 
year--(1) In general. For purposes of paragraph (a)(2)(iii) of this 
section, in respect of a share (or block) of stock in a foreign 
corporation, the person's ratable share of the earnings and profits 
accumulated for a taxable year beginning after December 31, 1962, shall 
be an amount equal to the tentative ratable share computed under 
paragraph (c) or (d) (as the case may be) of this section, adjusted in 
the manner prescribed in subparagraphs (2) through (6) of this 
paragraph.
    (2) Amounts included in gross income under section 951. (i) In 
respect of a share (or block) of stock in a foreign corporation, a 
person's tentative ratable share for a taxable year of the corporation 
(computed under paragraph (c) of this section) shall be reduced (but not 
below zero) by the excess of (a) the amount, if any, included (in 
respect of such corporation for such taxable year) under section 951 in 
the gross income of such person or (during the period such share, or 
block, was considered to be held by such person by reason of the 
application of section 1223, taking into account Sec.  1.1248-8) in the 
gross income of any other person who held such share (or block), over 
(b) the portion of such amount which, in any taxable year of such person 
or such other person, resulted in an exclusion from the gross income of 
such person or such other person of an amount under section 959(a)(1) 
(relating to exclusion from gross income of distributions of previously 
taxed earnings and profits). See section 1248(d)(1). This subdivision 
shall apply notwithstanding an election under section 962 by such person 
to be subject to tax at corporate rates.
    (ii) The application of this subparagraph may be illustrated by the 
following example:

    Example: On December 31, 1975, Brown sells one share of stock in X 
Corporation, a controlled foreign corporation which has never been a 
less developed country corporation (as defined in section 902(d)). Both 
Brown and X use the calendar year as the taxable year. In respect of his 
share, Brown's tentative ratable share for 1971 (computed under 
paragraph (c) of this section) is $35. In respect of his share, Brown 
included $4 in his gross income for 1971 under section 951, and the 
amount of $3, which was distributed to him by X on January 15, 1972, is 
excluded from Brown's gross income under section 959(a)(1). In respect 
of the stock, Brown's ratable share for 1971 is $34, determined as 
follows:

Tentative ratable share.....................................         $35
Minus:
  Excess of amount of tentative ratable share included in              1
   Brown's gross income under section 951 ($4), over portion
   thereof which resulted in exclusion under section
   959(a)(1) ($3)...........................................
                                                             -----------
    Ratable share...........................................          34
 

    (3) Amounts included in gross income under section 551. In respect 
of a share (or block) of stock in a foreign corporation, a person's 
tentative ratable share for a taxable year of the corporation (computed 
under paragraph (c) of this section) shall be reduced (but not below 
zero) by the amount, if any, included (in respect of such corporation 
for such taxable year) under section 551 in the gross income of such 
person or (during the period such share, or block, was considered to be 
held by such person by reason of the application of section 1223, taking 
into account Sec.  1.1248-8) in the gross income of any other person who 
held such share (or block).
    (4) Less developed country corporations. (i) If the foreign 
corporation was a less developed country corporation as defined in 
section 902(d) for a taxable year of the corporation, and if the person 
who sold or exchanged a share (or block) of stock in such corporation 
satisfies the requirements of paragraph (a) of Sec.  1.1248-5 in respect 
of such stock, then his ratable share for such taxable

[[Page 444]]

year shall be zero. See section 1248(d)(3).
    (ii) The application of this subparagraph may be illustrated by the 
following example:

    Example: Assume the same facts as in the example in subparagraph 
(2)(ii) of this paragraph except that X was a less developed country 
corporation for 1971. Assume further that Brown satisfies the 
requirements of paragraph (a) of Sec.  1.1248-5. Brown's ratable share 
in respect of the stock for 1971 is zero.

    (5) Qualified shareholder of foreign investment company. In respect 
of a share (or block) of stock in a foreign corporation which was a 
foreign investment company described in section 1246 (b)(1), if the 
election under section 1247(a) to distribute income currently was in 
effect for a taxable year of the company, and if the person who sold or 
exchanged the stock (or another person who actually owned the stock 
during such taxable year and whose holding of the stock is attributed by 
reason of the application of section 1223, taking into account Sec.  
1.1248-8, to the person who sold or exchanged the stock) was a qualified 
shareholder (as defined in section 1247(c)) for his taxable year in 
which or with which such taxable year of the company ends, then the 
ratable share in respect of the share (or block) for such taxable year 
of the company shall be zero. See section 1248(d)(5). In case gain is 
recognized under section 1246 in respect of a share (or block), see 
section 1248(f)(3)(B).
    (6) Adjustment for certain distributions. If (i) the person who sold 
or exchanged the share or block (or another person who actually owned 
the share or block and whose holding of the share or block is attributed 
by reason of the application of section 1223 to such person, taking into 
account Sec.  1.1248-8) received a distribution during a taxable year of 
the corporation, and (ii) such distribution was not included in the 
gross income of such person (or such other person) by reason of the 
application of section 959(a)(1) to amounts which were included under 
section 951(a)(1) in the gross income of a United States shareholder 
whose holding of the share or block is not attributed by reason of the 
application of section 1223 to such person, taking into account Sec.  
1.1248-8 (or such other person), then the amount of such distribution 
shall be added to such person's tentative ratable share for such taxable 
year. Thus, for example, such tentative ratable share may be increased, 
or a deficit reduced, by the amount of such distribution.
    (f) Earnings and profits of subsidiaries of foreign corporations--
(1) Application of paragraph. (i) In respect of a person who sells or 
exchanges stock in a foreign corporation (referred to as a first tier 
corporation), the provisions of this paragraph shall apply if the 
following 3 conditions exist:
    (a) The conditions of paragraph (a)(2) of Sec.  1.1248-1 are 
satisfied by the person in respect of such stock;
    (b) By reason of his ownership of such stock, on the date of such 
sale or exchange such person owned, within the meaning of section 
958(a)(2), stock in another foreign corporation (referred to as a lower 
tier corporation); and
    (c) The conditions of paragraph (a)(2) of Sec.  1.1248-1 would be 
satisfied by such person in respect of such stock in the lower tier 
corporation if such person were deemed to have sold or exchanged such 
stock in the lower tier corporation on the date he actually sold or 
exchanged such stock in the first tier corporation.
    (ii) If the provisions of this paragraph apply, (a) the person's 
tentative ratable share (or shares) of the earnings and profits 
accumulated by the lower tier corporation attributable to a taxable year 
of the first tier corporation shall be computed under subparagraph (2) 
or (4) of this paragraph, whichever is applicable, and (b) such person's 
ratable share (or shares) for the lower tier corporation attributable to 
a taxable year of the first tier corporation shall be computed under 
subparagraph (5) of this paragraph. For the manner of taking into 
account the ratable share for a lower tier corporation, see paragraph 
(a)(3) of this section.
    (iii) The application of this subparagraph may be illustrated by the 
following example:

    Example: On each day of 1964 and 1965 corporations X and Y are 
controlled foreign corporations, and each has outstanding 100 shares of 
one class of stock. On January 15, 1965, T, a United States person, owns 
one share of stock in X and X directly owns 20 shares of stock in Y. 
Thus, T owns, within the meaning of section 958(a)(2), stock in Y.

[[Page 445]]

On that date, T sells his share in X and satisfies the conditions of 
paragraph (a)(2) of Sec.  1.1248-1 in respect of his stock in X. 
Assuming that the conditions of paragraph (a)(2) of Sec.  1.1248-1 would 
be satisfied by T in respect of the stock he indirectly owns in Y if, on 
January 15, 1965, he were deemed to have sold such stock in Y, the 
provisions of this paragraph apply.

    (2) Tentative ratable share (of lower tier corporation attributable 
to a taxable year of first tier corporation) not less than zero. If the 
provisions of this paragraph apply to a sale or exchange by a United 
States person of a share (or block) of stock in a first tier 
corporation, and if the amount of earnings and profits accumulated 
(computed under paragraph (b) of this section) for a taxable year 
(beginning after December 31, 1962) of the lower tier corporation is not 
less than zero, then in respect of the share (or block) such person's 
tentative ratable share of the earnings and profits accumulated for such 
taxable year of the lower tier corporation attributable to any taxable 
year (beginning after December 31, 1962) of such first tier corporation 
shall be an amount equal to:
    (i)(a) Such amount of earnings and profits accumulated for such 
taxable year of the lower tier corporation (if the computation is made 
in respect of a block in the first tier corporation, multiplied by the 
number of shares in the block), divided by (b) the number of shares in 
the first tier corporation outstanding, or deemed under paragraph (c)(2) 
of this section to be outstanding, on each day of such taxable year of 
the first tier corporation, multiplied by
    (ii) The percentage that (a) the number of days during the period or 
periods in such taxable year of the first tier corporation on which such 
person held (or was considered to have held by reason of the application 
of section 1223, taking into account Sec.  1.1248-8) the share (or 
block) in the first tier corporation while the first tier corporation 
owned (within the meaning of section 958(a)) stock of such lower tier 
corporation at times while such lower tier corporation was a controlled 
foreign corporation, bears to (b) the total number of days in such 
taxable year of the first tier corporation, multiplied by
    (iii) The percentage that (a) the average number of shares in the 
lower tier corporation which were owned within the meaning of section 
958(a) by the first tier corporation during such period or periods 
(referred to in subdivision (ii)(a) of this subparagraph), bears to (b) 
the total number of such shares outstanding, or deemed under the 
principles of paragraph (c)(2) of this section to be outstanding, during 
such period or periods, multiplied by
    (iv) The percentage that (a) the number of days in such taxable year 
of the lower tier corporation which fall within the taxable year of the 
first tier corporation, bears to (b) the total number of days in such 
taxable year of the lower tier corporation.
    (3) Examples. The application of subparagraph (2) of this paragraph 
may be illustrated by the following examples:

    Example 1. In a year subsequent to 1969, Brown, a United States 
person, sells 5 of his shares of stock in X Corporation in a transaction 
as to which the provisions of this paragraph apply. Brown had purchased 
the 5 shares prior to 1969. On each day of 1969 X Corporation actually 
had 100 shares of one class of stock outstanding. On each such day X 
Corporation directly owned all of the shares of stock in Y Corporation, 
and Y Corporation directly owned all of the shares of stock in Z 
Corporation. Z Corporation on each such day was a controlled foreign 
corporation. Both X and Z use the calendar year as the taxable year. Z's 
earnings and profits accumulated for 1969 (computed under paragraph (b) 
of this section) are $2,000. Brown's tentative ratable share of the 
earnings and profits accumulated by Z attributable to the 1969 calendar 
year of X is $20 per share, computed as follows:

  (i) Z's earnings and profits for 1969 ($2,000), divided by         $20
   the number of shares in X deemed outstanding each day of
   1969 (100)...............................................
Multiplied by:
  (ii) Since on each day of 1969 Brown (by reason of owning         100%
   directly his shares in X) owned, within the meaning of
   section 958(a)(2), stock in Z while Z was a controlled
   foreign corporation, the percentage determined under
   subparagraph (2)(ii) of this paragraph equals............
Multiplied by:
  (iii) Since on each day of 1969 X owned 100 percent of the        100%
   stock of Y while Y owned 100 percent of the stock in Z,
   the percentage determined under subparagraph (2)(iii) of
   this paragraph equals....................................
Multiplied by:
  (iv) Since X and Z each use the same taxable year, the            100%
   percentage determined under subparagraph (2)(iv) of this
   paragraph equals.........................................
                                                 -------------
      Total.................................................         $20
 


[[Page 446]]

    Example 2. Assume the same facts as in example (1), except that 
Brown sold his stock in X on October 19, 1969. Brown's tentative ratable 
share of the earnings and profits accumulated by Z attributable to the 
1969 calendar year of X is $16 per share, computed as follows:

  (i) The amount determined in subdivision (i) of example            $20
   (1)......................................................
Multiplied by:
  (ii) The number of days in the period during 1969 Brown            80%
   (by reason of owning directly his stock in X) owned,
   within the meaning of section 958(a)(2), his stock in Z
   while Z was a controlled foreign corporation (292),
   divided by the number of days in 1969 (365), equals......
Multiplied by:
  (iii) The percentage determined in subdivision............
    (iii) of example (1)....................................        100%
Multiplied by:
  (iv) The percentage determined in subdivision.............
    (iv) of example (1).....................................        100%
                                                 -------------
      Total.................................................         $16
 

    Example 3. Assume the same facts as in examples (1) and (2), except 
that on each day during 1969 Y owned (within the meaning of section 
958(a)(2)) 81 of the 100 shares of Z's outstanding stock. Brown's 
tentative ratable share of the earnings and profits accumulated by Z 
attributable to the 1969 calendar year of X is $12.96 per share, 
computed as follows:

  (i) The amount determined in subdivision (i) of example            $20
   (1)......................................................
Multiplied by:
  (ii) The percentage determined in subdivision (ii) of              80%
   example (2)..............................................
Multiplied by:
  (iii) The average number of shares in Z which were owned           81%
   (within the meaning of section 958(a)) by X during the
   applicable period (81), divided by the total number of
   shares in Z during such period (100).....................
Multiplied by:
  (iv) The percentage determined in subdivision (iv) of             100%
   example (1)..............................................
                                                 =============
      Total.................................................      $12.96
 


The result would be the same if X owned (within the meaning of section 
958(a)(2)) 81 percent of the stock in Y while Y so owned 100 percent of 
the stock in X, or if X so owned 90 percent of the stock in Y while Y so 
owned 90 percent of the stock in Z.
    Example 4. Assume the same facts as in example (3), except that Z 
Corporation uses a fiscal year ending June 30 as its taxable year. 
Assume further that Z's earnings and profits accumulated for its fiscal 
year ending June 30, 1969, and for its fiscal year ending June 30, 1970, 
are $3,000 and $2,000, respectively. Brown's tentative ratable share of 
the earnings and profits accumulated by Z attributable to the 1969 
calendar year of X is $16.17 per share, computed as follows:

 
                                                     In respect of Z's
                                                    taxable year ending
 
                                                   June 30,    June 30,
                                                     1969        1970
 
  (i) Z's earnings and profits, divided by the
   number of shares in X deemed outstanding on
   each day of 1969:
      $3,000/100................................         $30
      $2,000/100................................  ..........         $20
Multiplied by:
  (ii) The percentage determined in subdivision          80%         80%
   (ii) of example (2)..........................
Multiplied by:
  (iii) The percentage determined in subdivision         81%         81%
   (iii) of example (3).........................
Multiplied by:
  (iv) Number of days in Z's taxable year which
   fall within 1969, divided by total number of
   days in Z's taxable year:
      181/365...................................       49.6%
      184/365...................................  ..........       50.4%
                                                 -----------------------
        Totals..................................       $9.64       $6.53
  (v) Sum of tentative ratable shares of Z
   attributable to X's 1969 calendar year:
    For Z's taxable year ending
      June 30, 1969.............................  ..........       $9.64
      June 30, 1970.............................  ..........       $6.53
                                                 -------------
        Sum.....................................  ..........      $16.17
 

    (4) Deficit in tentative ratable share of lower tier corporation 
attributable to a taxable year of first tier corporation. (i) If there 
is a deficit in the earnings and profits accumulated for a taxable year 
of a lower tier corporation beginning after December 31, 1962 (computed 
under paragraph (b) of this section), the person's tentative ratable 
share for such taxable year of such lower tier corporation attributable 
to a taxable year of a first tier corporation shall not be computed 
under subparagraph (2) of this paragraph but shall be an amount equal to 
the sum of the partial tentative ratable shares computed under 
subdivisions (ii) and (iii) of this subparagraph.
    (ii) The partial tentative ratable share under this subdivision is 
computed in 2 steps. First, compute (under paragraph (b) of this section 
without regard to the adjustments for distributions under subparagraph 
(3) thereof) the deficit (if any) in earnings and profits accumulated 
for such taxable year of such lower tier corporation. Second, compute 
the partial tentative ratable

[[Page 447]]

share in the same manner as such tentative ratable share would be 
computed under subparagraph (2) of this paragraph if such deficit were 
the amount referred to in subparagraph (2)(i)(a) of this paragraph.
    (iii) The partial tentative ratable share under this subdivision is 
computed in 2 steps. First, compute and treat as a deficit the portion 
of the adjustment for distributions under paragraph (b)(3) of this 
section for such taxable year which is attributable under paragraph 
(d)(4) of this section to distributions of earnings and profits 
accumulated during prior taxable years of the lower tier corporation 
beginning after December 31, 1962, during the period or periods such 
lower tier corporation was a controlled foreign corporation and the 
percentage of the stock of such lower tier corporation (which the person 
owns within the meaning of section 958(a)(2)) was owned within the 
meaning of section 958(a) by a United States shareholder (as defined in 
section 951(b) and the regulations thereunder). Second, compute the 
partial tentative ratable share in the same manner as such tentative 
ratable share would be computed under subparagraph (2) of this paragraph 
if (a) such deficit were the amount referred to in subparagraph 
(2)(i)(a) of this paragraph, and (b) such lower tier corporation were a 
controlled foreign corporation on each day of such taxable year.
    (5) Ratable share of lower tier corporation attributable to a first 
tier corporation. (i) If the provisions of this paragraph apply in 
respect of a share of stock in a first tier corporation, a person's 
ratable share of the earnings and profits accumulated by the lower tier 
corporation attributable to a taxable year of the first tier corporation 
shall be an amount equal to the tentative ratable share computed under 
subparagraph (2) or (4) of this paragraph, adjusted in the manner 
prescribed in this subparagraph.
    (ii) If the first tier corporation and the lower tier corporation 
use the same taxable year, then in respect of a share (or block) of 
stock in the first tier corporation the person's tentative ratable share 
of the accumulated earnings and profits of the lower tier corporation 
attributable to the taxable year of the first tier corporation (computed 
under subparagraph (2) of this paragraph) shall be reduced (but not 
below zero) by the excess of (a) the amount, if any, included (in 
respect of such lower tier corporation for its taxable year) under 
section 951 in the gross income of such person or (during the period 
such stock was considered to be held by such person by reason of the 
application of section 1223, taking into account Sec.  1.1248-8) in the 
gross income of any other person who held such stock, over (b) the 
portion of such amount which, in any taxable year of such person or such 
other person, resulted in an exclusion from the gross income of such 
person or such other person of an amount under section 959(a)(1). For an 
illustration of the principles in the preceding sentence, see the 
example in paragraph (e)(2)(ii) of this section.
    (iii) If the first tier corporation and the lower tier corporation 
do not use the same taxable year, and if there would be an excess 
computed under subdivision (ii) of this subparagraph in respect of a 
taxable year of the lower tier corporation (were the taxable years of 
such corporations the same), then such person's tentative ratable share 
of the accumulated earnings and profits for a taxable year of the lower 
tier corporation attributable to such taxable year of the first tier 
corporation shall be reduced (but not below zero) by an amount which 
bears the same ratio to (a) such excess, as (b) the number of days in 
the taxable year of the lower tier corporation which fall within the 
taxable year of the first tier corporation, bears to (c) the total 
number of days in the taxable year of the first tier corporation.
    (iv) If the first tier corporation and the lower tier corporation 
use the same taxable year, then in respect of a share (or block) of 
stock in the first tier corporation the person's tentative ratable share 
of the accumulated earnings and profits of the lower tier corporation 
attributable to the taxable year of the first tier corporation (computed 
under subparagraph (2) of this paragraph) shall be reduced (but not 
below zero) by the amount, if any, included (in respect of such 
corporation for such taxable year) under section 551, by reason of the 
application of section 555(b), in the

[[Page 448]]

gross income of such person or (during the period such share (or block) 
was considered to be held by such person by reason of the application of 
section 1223, taking into account Sec.  1.1248-8) in the gross income of 
any other person who held such share (or block).
    (v) If the first tier corporation and the lower tier corporation do 
not use the same taxable year, and if there would be a reduction in the 
person's tentative ratable share of the accumulated earnings and profits 
of the lower tier corporation attributable to the taxable year of the 
first tier corporation by an amount computed under subdivision (iv) of 
this subparagraph in respect of a taxable year of the lower tier 
corporation (were the taxable years of such corporations the same), then 
such person's tentative ratable share of the accumulated earnings and 
profits for a taxable year of the lower tier corporation attributable to 
such taxable year of the first tier corporation shall be reduced by an 
amount which bears the same ratio to (a) such amount, as (b) the number 
of days in the taxable year of the lower tier corporation which fall 
within the taxable year of the first tier corporation, bears to (c) the 
total number of days in the taxable year of the first tier corporation.
    (vi) If the lower tier corporation was a less developed country 
corporation as defined in section 902(d) for a taxable year of the 
corporation, see paragraph (g) of this section.
    (g) Lower tier corporation a less developed country corporation--(1) 
General. If the lower tier corporation was a less developed country 
corporation as defined in section 902(d) for a taxable year of such 
corporation, and if the person who sold or exchanged a share (or block) 
of stock in the first tier corporation satisfies on the date of such 
sale or exchange:
    (i) The requirements of paragraph (a)(1) of Sec.  1.1248-5 with 
respect to such stock, and
    (ii) The requirements of paragraph (d)(1) of Sec.  1.1248-5 with 
respect to any stock of the lower tier corporation which such person, by 
reason of his direct ownership of such stock in the first tier 
corporation, owned within the meaning of section 958(a)(2),

Then such person's ratable share (or a deficit in such ratable share) 
for such taxable year of the lower tier corporation attributable to a 
taxable year of the first tier corporation (determined without regard to 
this paragraph) shall be reduced by an amount computed by multiplying 
such ratable share (so determined without regard to this paragraph) by 
the percentage computed under either subparagraph (2) or (4) of this 
paragraph, whichever is applicable.
    (2) Percentage for second tier corporation. For purposes of 
subparagraph (1) of this paragraph, if stock of a lower tier corporation 
(hereinafter referred to as a second tier corporation) is owned directly 
by the first tier corporation on the date of the sale or exchange 
referred to in such subparagraph (1), the percentage under this 
subparagraph shall be computed by dividing (i) the number of shares of 
stock of the second tier corporation which the first tier corporation 
has owned directly for an uninterrupted 10-year period ending on such 
date, by (ii) the total number of shares of the stock of such second 
tier corporation owned directly by such first tier corporation on such 
date.
    (3) Examples. The provisions of subparagraph (2) of this paragraph 
may be illustrated by the following examples:

    Example 1. On January 1, 1966, Smith, a United States person, 
recognizes gain upon the sale of one share of the only class of stock of 
F Corporation, which he has owned continuously since 1955. He includes a 
portion of the gain in his gross income as a dividend under section 
1248(a). On January 1, 1966, F owns directly 60 shares of the 100 
outstanding shares of the only class of stock of G Corporation, which F 
acquired in 1955 and owned continuously until such sale. F uses a 
taxable year ending June 30, and G uses the calendar year as the taxable 
year. For 1964, G was a less developed country corporation, and on each 
day of 1964 G was a controlled foreign corporation. Smith's ratable 
share for G's taxable year ending December 31, 1964, attributable to F's 
taxable year ending June 30, 1965 (determined without regard to this 
paragraph) is $6.00. Since the percentage computed under subparagraph 
(2) of this paragraph is 100 percent (60 shares divided by 60 shares), 
Smith's ratable share for G's taxable year ending December 31, 1964, 
attributable to F's taxable year ending June 30, 1965 (after the 
application of subparagraph (2) of this paragraph) is zero (that is, 
$6.00 reduced by 100 percent of $6.00).

[[Page 449]]

    Example 2. Assume the same facts as in example (1) except that of 
the 60 shares of G Corporation which F Corporation owned on January 1, 
1966, 20 shares were acquired in 1961. The percentage computed under 
subparagraph (2) of this paragraph is 66\2/3\ percent (40 shares divided 
by 60 shares). Accordingly, Smith's ratable share for G's taxable year 
ending December 31, 1964, attributable to F's taxable year ending June 
30, 1965 (after the application of subparagraph (2) or this paragraph) 
is $2.00 (that is, $6.00 reduced by 66\2/3\ percent of $6.00).

    (4) Percentage for lower tier corporations other than second tier 
corporation. For purposes of subparagraph (1) of this paragraph, if 
stock of a lower tier corporation (other than a second tier corporation) 
is owned within the meaning of section 958(a)(2) by the first tier 
corporation on the date of the sale or exchange referred to in such 
subparagraph (1), the percentage under this subparagraph shall be 
computed in the following manner:
    (i) First, determine the percentage for the second tier corporation 
in accordance with subparagraph (2) of this paragraph.
    (ii) Second, determine a partial percentage for each other lower 
tier corporation in the same manner as the percentage for the second 
tier corporation is determined. Thus, for example, the partial 
percentage for a third tier corporation is determined by dividing (a) 
the number of shares of stock of the third tier corporation which the 
second tier corporation has owned directly for an uninterrupted 10-year 
period ending on the date of the sale or exchange referred to in 
subparagraph (1) of this paragraph, by (b) the total number of shares of 
stock of such third tier corporation owned directly by such second tier 
corporation on such date.
    (iii) Third, the percentage for a third tier corporation is the 
percentage for the second tier corporation multiplied by the partial 
percentage for the third tier corporation. The percentage for a fourth 
tier corporation is the percentage for the third tier corporation (as 
determined in the preceding sentence) multiplied by the partial 
percentage for the fourth tier corporation. In a similar manner, the 
percentage for any other lower tier corporation may be determined.
    (5) Example. The application of subparagraph (4) of this paragraph 
may be illustrated by the following example:

    Example: On January 1, 1967, Brown, a United States person 
recognizes gain upon the sale of one share of the only class of stock of 
W Corporation, which he has owned continuously since 1955. He includes a 
portion of the gain in his gross income as a dividend under section 
1248(a). W is the first tier corporation of a chain of foreign 
corporations W, X, Y, and Z. W and Z each use the calendar year as the 
taxable year. For 1964, Z was a less developed country corporation and 
on each day of 1964 Z was a controlled foreign corporation. Additional 
facts are set forth in the table below:

----------------------------------------------------------------------------------------------------------------
                                                                      Shares directly owned by
                                                                          preceding tier--
                                                                   ------------------------------   Column (2)
                                                                          For                       divided by
                         Corporation--(1)                            uninterrupted                  column (3)
                                                                     10-year period   On Jan. 1,  (percent)--(4)
                                                                     ending Jan. 1,   1967--(3)
                                                                       1967--(2)
----------------------------------------------------------------------------------------------------------------
X.................................................................               40           60       66\2/3\
Y.................................................................               30           40            75
Z.................................................................               20           30       66\2/3\
----------------------------------------------------------------------------------------------------------------


For 1964, the percentage referred to in subparagraph (4) of this 
paragraph for Z is 33\1/3\ percent (66\2/3\% x 75% x 66\2/3\%).

    (6) Special rule. For purposes of applying the provisions of this 
paragraph, a lower tier corporation may be treated as a second tier 
corporation with respect to any of its stock which is owned directly by 
a first tier corporation whereas such lower tier corporation may be 
treated as a lower tier corporation other than a second tier corporation 
with respect to other stock in such lower tier corporation which is 
owned (within the meaning of section 958(a)(2)) by such first tier 
corporation. Thus, for example, if corporations X, Y, and Z are foreign 
corporations, X is a first tier corporation owning directly 100 percent 
of the stock of Y and 40 percent of the stock of Z, and in addition Y 
owns directly 60 percent of the stock of Z, then the 40 percent of the Z 
stock (which X owns directly) is considered to be stock in a second tier 
corporation and the 60 percent of the Z stock (which Y owns directly and 
which X is considered to own within the meaning

[[Page 450]]

of section 958(a)(2)) is considered to be stock in a third tier 
corporation.

[T.D. 6779, 29 FR 18133, Dec. 22, 1964, as amended by T.D. 7293, 38 FR 
32803, Nov. 28, 1973; T.D. 7545, 43 FR 19652, May 8, 1978; T.D. 9345, 72 
FR 41445, July 30, 2007; T.D. 9614, 78 FR 17041, Mar. 19, 2013]



Sec.  1.1248-4  Limitation on tax applicable to individuals.

    (a) General rule--(1) Limitation on tax. Under section 1248(b), if 
during a taxable year an individual sells or exchanges stock in a 
foreign corporation, then in respect of the stock the increase in the 
individual's income tax liability for such taxable year which is 
attributable (under paragraph (b) of this section) to the amount 
included in his gross income as a dividend under section 1248(a) shall 
not be greater than an amount equal to the sum of:
    (i) The excess, computed under paragraph (c) of this section in 
respect of the stock of the United States taxes which would have been 
paid by the corporation over the taxes (including United States taxes) 
actually paid by the corporation, plus.
    (ii) An amount equal to the increase in the individual's income tax 
liability which would be attributable to the inclusion in his gross 
income for such taxable year, as long-term capital gain, of an amount 
equal to the excess of (a) the amount included in the individual's gross 
income as a dividend under section 1248(a) in respect of such stock, 
over (b) the excess referred to in subdivision (i) of this subparagraph.
    (2) Share or block. In general, the limitation on tax attributable 
(under paragraph (b) of this section) to the amount included in an 
individual's gross income as a dividend under section 1248(a) shall be 
determined separately for each share of stock sold or exchanged. 
However, such determination may be made in respect of a block of stock 
if earnings and profits attributable to the block are computed under 
Sec.  1.1248-2 or 1.1248-3. See paragraph (b) of Sec.  1.1248-2 and 
paragraph (a)(5) of Sec.  1.1248-3.
    (3) Application of limitation. The provisions of subparagraph (1) of 
this paragraph shall not apply unless the individual establishes:
    (i) In the manner prescribed in Sec.  1.1248-7, the amount of the 
earnings and profits of the corporation attributable under paragraph 
(a)(1) of Sec.  1.1248-2 or under paragraph (a)(1) of Sec.  1.1248-3, 
whichever is applicable, to the stock, and
    (ii) The amount equal to the sum described in subparagraph (1) of 
this paragraph, computed in accordance with the provisions of this 
section.
    (4) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example: On December 31, 1966, Smith, a United States person, sells 
a share of stock of X Corporation which he has owned continuously since 
December 31, 1965, and includes $100 of the gain on the sale in his 
gross income as a dividend under section 1248(a). Both X and Smith use 
the calendar year as the taxable year. The increase in Smith's income 
tax liability for 1966 which is attributable (under paragraph (b) of 
this section) to the inclusion of the $100 in his gross income as a 
dividend is $70. X was a controlled foreign corporation on each day of 
1966. The excess computed under paragraph (c) of this section in respect 
of the share, of the United States taxes which X would have paid over 
the taxes (including United States taxes) actually paid by X is $49. 
Under section 1248(b), the limitation on the tax attributable to the 
$100 included by Smith in his gross income as a dividend under section 
1248(a) is $61.75, computed as follows:

(i) Excess, computed under paragraph (c) of this  ..........      $49.00
 section, of United States taxes which X
 Corporation would have paid in 1966 over the
 taxes actually paid by X in 1966...............
(ii) The amount determined under subparagraph
 (1)(ii) of this paragraph:
  The amount Smith included in his gross income      $100.00
   as a dividend under section 1248(a)..........
  Less the excess referred to in subdivision (i)       49.00
   of this example..............................
                                                 ------------
  Difference....................................       51.00
Increase in Smith's tax liability attributable    ..........       12.75
 to including $51 in his gross income as long-
 term capital gain (25 percent of $51)..........
                                                             -----------
(iii) Limitation on tax.....................................       61.75
 

    (b) Tax attributable to amount treated as dividend--(1) General. For 
purposes of paragraph (a)(1) of this section, in respect of a share (or 
block) of stock in a foreign corporation sold or exchanged by an 
individual during a taxable year,

[[Page 451]]

the tax attributable to the amount included in his gross income as a 
dividend under section 1248(a) shall be the amount which bears the same 
ratio to (i) the excess of (a) his income tax liability for the taxable 
year determined without regard to section 1248(b) over (b) such tax 
liability determined as if the portion of the total gain recognized 
during the taxable year which is treated as a dividend under section 
1248(a) had not been recognized, as (ii) the amount included as a 
dividend under section 1248(a) in respect of the share (or block), bears 
to (iii) the total amount included as a dividend under section 1248(a) 
in the individual's gross income for such taxable year.
    (2) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. (i) During 1963, Brown, an unmarried United States 
person, sells a block of stock in a controlled foreign corporation. On 
the sale, he recognizes $22,000 gain, of which $18,000 is treated as a 
dividend under section 1248(a) and $4,000 as long-term capital gain. 
Brown computes his income tax liability for his taxable year ending 
December 31, 1963, under section 1201 (relating to alternative tax) in 
accordance with the additional facts assumed in the following table:

------------------------------------------------------------------------
                                                          Computation of
                                                            income tax
                                          Computation of   liability as
                                            income tax      if the gain
                                             liability     treated as a
                                          without regard   divided under
                                            to section        section
                                              1248(b)       1248(a) had
                                                             not been
                                                            recognized
------------------------------------------------------------------------
Income from salary......................        $300,000        $300,000
Long-term capital gain resulting from              2,000           2,000
 sale of stock, less deduction for
 capital gains under section 1202
 ($4,000 less $2,000)...................
Amount treated as a dividend under                18,000               0
 section 1248(a)........................
                                         -------------------------------
Adjusted gross income...................         320,000         302,000
Charitable contribution of $100,000 to          (96,000)        (90,600)
 church (limited under section 170(b) to
 30 percent of adjusted gross income)...
Other itemized deductions and personal           (7,700)         (7,700)
 exemption..............................
                                         -------------------------------
Taxable income..........................         216,300         203,700
Less 50 percent of $4,000...............           2,000           2,000
                                         ===============================
Amount subject to partial tax under              214,300         201,700
 section 1201(b)(1).....................
                                         ===============================
Partial tax.............................         169,833         158,367
25 percent of $4,000....................           1,000           1,000
                                         -------------------------------
Tax liability...........................         170,833         159,367
------------------------------------------------------------------------

    (ii) The tax attributable to the $18,000 treated as a dividend under 
section 1248(a) is $11,466 ($170,833 minus $159,367).
    Example 2. Assume the same facts as in example (1) except that the 
$18,000 treated as a dividend under section 1248(a) is attributable to 
the sale of a block of stock in X Corporation and a block of stock in Y 
Corporation. Assume further that $10,000 of the gain on the block of X 
stock was treated as a dividend and that $8,000 of the gain on the block 
of Y stock was treated as a dividend. Thus, the tax attributable to the 
amount treated as a dividend in respect of the block of X stock is 
$6,370 ($10,000/$18,000 of $11,466) and the amount in respect of the 
block of Y stock is $5,096 ($8,000/$18,000 of $11,466). The result would 
be the same if both blocks of stock were blocks of stock in the same 
corporation.

    (c) Excess (of United States taxes which would have been paid over 
taxes actually paid) attributable to a share (or block)--(1) General. 
For purposes of paragraph (a)(1)(i) of this section:
    (i) The term taxes means income, war profits, or excess profits 
taxes, and
    (ii) The excess (and the portion of such excess attributable to an 
individual's share or block of stock in a foreign corporation) of the 
United States taxes which would have been paid by the corporation over 
the taxes (including United States taxes) actually paid by the 
corporation, for the period or periods the stock was held (or was 
considered to be held by reason of the application of section 1223) by 
the individual in taxable years of the corporation beginning after 
December 31, 1962, while the corporation was a controlled foreign 
corporation, shall be computed in accordance with the steps set forth in 
subparagraphs (2), (3), and (4) of this paragraph.

[[Page 452]]

    (2) Step 1. For each taxable year of the corporation beginning after 
December 31, 1962, in respect of the individual's share (or block) of 
such stock (i) the taxable income of the corporation shall be computed 
in the manner prescribed in paragraph (d) of this section, and (ii) the 
excess (and the portion of such excess attributable to the stock of the 
United States taxes which would have been paid by the corporation on 
such taxable income over the taxes (including United States taxes) 
actually paid by the corporation shall be computed in the manner 
prescribed in paragraph (e) of this section.
    (3) Step 2. If during such taxable year the corporation is a first 
tier corporation to which paragraph (f) of this section applies, (i) the 
excess (and the portion of such excess attributable to the individual's 
share, or block, of stock in the first tier corporation) of the United 
States taxes which would have been paid by any lower tier corporation 
over the taxes (including United States taxes) actually paid by such 
lower tier corporation shall be computed under paragraph (f) of this 
section, and (ii) such portion shall be added to the portion of the 
excess attributable to the individual's share (or block) of such stock 
as determined in step 1 for such taxable year.
    (4) Step 3. The excess, in respect of the individual's share (or 
block), of the United States taxes which would have been paid by the 
corporation over the taxes actually paid by the corporation shall be the 
sum of the portions computed for each such taxable year in the manner 
prescribed in steps 1 and 2.
    (d) Taxable income. For purposes of paragraph (c)(2)(i) of this 
section, taxable income shall be computed in respect of an individual's 
share (or block) in accordance with the following rules:
    (1) Application of principles of Sec.  1.952-2. Except as otherwise 
provided in this paragraph, the principles of paragraphs (a)(1), (b)(1), 
and (c) of Sec.  1.952-2 (other than subparagraphs (2)(iii)(b), (2)(v), 
(5)(i), and (6) of such paragraph (c)) shall apply.
    (2) Effect of elections. In respect of a taxable year of a foreign 
corporation, no effect shall be given to an election or an adoption of 
accounting method unless for such taxable year effect is given to such 
election or adoption of accounting method under paragraph (d)(1) of 
Sec.  1.1248-2 or paragraph (b)(1) of Sec.  1.1248-3, whichever is 
applicable.
    (3) The deductions for certain dividends received provided in 
sections 243, 244, and 245 shall not be allowed.
    (4) Deduction for taxes. In computing the amount of the deduction 
allowed under section 164, there shall be excluded income, war profits, 
or excess profits taxes paid or accrued which are imposed by the 
authority of any foreign country or possession of the United States.
    (5) Capital loss carryover. In determining the amount of a net 
capital loss to be carried forward under section 1212 to the taxable 
year:
    (i) No net capital loss shall be carried forward from a taxable year 
beginning before January 1, 1963.
    (ii) The portion of a net capital loss or a capital gain net income 
(net capital gain for taxable years beginning before January 1, 1977) 
for a taxable year beginning after December 31, 1962, which shall be 
taken into account shall be the amount of such loss or gain (as the case 
may be), multiplied by the percentage which (a) the number of days in 
such taxable year during which the individual held (or was considered to 
have held by reason of the application of section 1223) the share (or 
block) of stock sold or exchanged while the corporation was a controlled 
foreign corporation, bears to (b) the total number of days in such 
taxable year.
    (iii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. Corporation X is a foreign corporation which was created 
on January 1, 1963, and which uses the calendar year as its taxable 
year. X was a controlled foreign corporation on each day of the period 
March 15, 1963, through December 31, 1965, but was not a controlled 
foreign corporation on any day during the period January 1, 1963, 
through March 14, 1963. On December 31, 1965, Smith, a United States 
person, sells a share of X stock which he has owned continuously since 
January 1, 1963. A portion of the gain recognized on the sale is 
includible in Smith's gross income as a dividend under section 1248(a). 
X had a net capital loss (determined without regard to subchapter N, 
chapter 1 of the Code) of $200 for 1963. Since, however, X was a 
controlled foreign corporation for only 292 days in 1963, for purposes 
of determining

[[Page 453]]

the net capital loss carryover to 1964 the portion of the net capital 
loss of $200 for 1963 which Smith takes into account under subdivision 
(ii) of this subparagraph is $160 (292/365 of $200), and, accordingly, 
the amount of the net capital loss carryover to 1964 is $160.
    Example 2. Assume the same facts as in example (1), except that X 
was not a controlled foreign corporation on any day of the period May 
26, 1964, through June 30, 1965. Assume further that X had a net capital 
gain (capital gain net income for taxable years beginning after December 
31, 1976) (determined without regard to subchapter N, chapter 1, of the 
Code) of $160 for 1964. In computing X's taxable income for 1964 under 
this paragraph, Smith applies the net capital loss carryover of $160 
from 1963 to reduce the net capital gain of $160 for 1964 to zero. 
Since, however, X was a controlled foreign corporation for only 146 days 
in 1964, for purposes of computing the portion of the 1963 capital loss 
of $160 which is a net capital loss carryover to 1965, the portion of 
the 1964 capital gain which Smith takes into account under subdivision 
(ii) of this subparagraph is $63.83 (\146/366\ of $160). Thus, the net 
capital loss carryover to 1965 is $96.17 ($160 minus $63.83).

    (6) Net operating loss deduction. (i) The individual shall reduce 
the taxable income (computed under subparagraphs (1) through (5) of this 
paragraph) of the corporation for the taxable year by the amount of the 
net operating loss deduction of the corporation computed under section 
172, as modified in the manner prescribed in this subparagraph.
    (ii) The rules of subparagraphs (1) through (5) of this paragraph 
shall apply for purposes of determining the excess referred to in 
section 172(c) and the taxable income referred to in section 172(b)(2).
    (iii) A net operating loss shall not be carried forward from, or 
carried back to, a taxable year beginning before January 1, 1963.
    (iv) The portion of a net operating loss incurred, or of taxable 
income earned, in a taxable year beginning after December 31, 1962, 
which shall be taken into account under section 172(b)(2) shall be the 
amount of such loss or income (as the case may be), multiplied by the 
percentage which (a) the number of days in such taxable year during 
which the individual held (or was considered to have held by reason of 
the application of section 1223) the share (or block) of stock sold or 
exchanged while the corporation was a controlled foreign corporation, 
bears to (b) the total number of days in such taxable year.
    (v) For illustrations of the principles of this subparagraph, see 
the examples relating to net capital loss carryovers in subparagraph 
(5)(iii) of this paragraph.
    (7) Adjustment for amount previously included in gross income of 
United States shareholders. In respect of the individual's share (or 
block) of stock sold or exchanged, the taxable income of the corporation 
for the taxable year (determined without regard to this subparagraph and 
subparagraph (8) of this paragraph) shall be reduced (but not below 
zero) by an amount equal to the sum of the amounts included under 
section 951 in the gross income of United States shareholders (as 
defined in section 951(b)) of the corporation for the taxable year.
    (8) Adjustment for distributions. In respect of the individual's 
share (or block) of stock sold or exchanged, the taxable income of the 
corporation for the taxable year (determined without regard to this 
subparagraph) shall be reduced (but not below zero) by the amount of the 
distributions (other than in redemption of stock under section 302(a) or 
303) made by the corporation out of earnings and profits of such taxable 
year (within the meaning of section 316(a)(2)). For purposes of the 
preceding sentence, distributions shall be taken into account only to 
the extent not excluded from the gross income of the United States 
shareholders of the corporation under section 959.
    (e) Excess attributable to a share (or block) of stock--(1) Excess 
of United States taxes which would have been paid over taxes actually 
paid. For purposes of paragraph (c)(2)(ii) of this section, in respect 
of a taxable year of a foreign corporation, the portion of the excess 
under this subparagraph which is attributable to an individual's share 
(or block) of such stock shall be an amount equal to:
    (i) The excess (if any) of (a) the United States taxes which would 
have been paid by the corporation on its taxable income (computed under 
paragraph (d) of this section) for the taxable year had it been taxed as 
a domestic corporation under chapter 1 of the

[[Page 454]]

Code (but without regard to subchapters F, G, H, L, M, N, S, and T 
thereof) for such taxable year, over (b) the income, war profits, or 
excess profits taxes actually paid by the corporation during such 
taxable year (including such taxes paid to the United States),
    (ii) Multiplied by the percentage that (a) the number of days in 
such taxable year of the corporation during the period or periods the 
share (or block) was held (or was considered as held by reason of the 
application of section 1223) by the individual while the corporation was 
a controlled foreign corporation, bears to (b) the total number of days 
in such taxable year,
    (iii) If the computation is made in respect of a block, multiplied 
by the number of shares in the block, and
    (iv) Divided by the number of shares in the corporation outstanding, 
or deemed under paragraph (c)(2) of Sec.  1.1248-3 to be outstanding, on 
each day of such taxable year.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example: (i) Jones, a United States person, owns on each day of 1963 
10 shares of the 100 shares of the only class of outstanding stock of X 
corporation. He sells one of such shares on December 31, 1963. X 
corporation is a controlled foreign corporation on each day of 1963 and 
Jones and X each use the calendar year as the taxable year. For 1963, 
the excess of the United States taxes which would have been paid by X 
had it been taxable as a domestic corporation over the taxes (including 
United States taxes) actually paid by X is $23,500, computed as follows:

Amount subject to partial tax under section 1201(a)(1), as
 computed by Jones:
  Taxable income............................................    $300,000
  Less excess of net long-term capital gain over net short-      100,000
   term capital loss........................................
                                                 -------------
    Amount subject to partial tax...........................     200,000
                                                 -------------
Excess determined under subparagraph (1)(i) of
 this paragraph:
  30 percent x $25,000..........................      $7,500
  52 percent x $175,000.........................      91,000
                                                 ------------
  Partial tax...............................................      98,500
  25 percent x $100,000.....................................      25,000
                                                 -------------
    United States taxes X would have paid (alternative tax       123,500
     computed under section 1201(a))........................
Less income taxes X actually paid to:
  United States.................................     $10,000
  Foreign countries.............................      90,000
                                                 ------------
    Total...................................................    $100,000
                                                 -------------
    Excess..................................................      23,500
Multiplied by:
  Percentage determined under subparagraph (1)(ii) of this
   paragraph:
    Since on each day of 1963, Jones held the share of X            100%
     stock while X was a controlled foreign corporation, the
     percentage equals......................................
                                                 -------------
    Total...................................................     $23,500
 

    (ii) The portion of the excess determined in subdivision (i) of this 
example which is attributable to the share held by Jones is $235, that 
is, the amount of such excess ($23,500), divided by the number of shares 
of X deemed to be outstanding on each day of 1963 (100).

    (3) More than one class of stock. If a foreign corporation for a 
taxable year has more than one class of stock outstanding, then before 
applying subparagraph (1) of this paragraph the excess (if any) which 
would be determined under subparagraph (1)(i) of this paragraph shall be 
allocated to each class of stock in accordance with the principles of 
paragraph (e) (2) and (3) of Sec.  1.951-1, applied as if the 
corporation were a controlled foreign corporation on each day of such 
taxable year.
    (f) Subsidiaries of foreign corporations--(1) Excess for lower tier 
corporation attributable to taxable year of first tier corporation. For 
purposes of paragraph (c)(3) of this section, if the provisions of 
paragraph (a)(3) of Sec.  1.1248-2 or paragraph (f) of Sec.  1.1248-3 
apply in the case of the sale or exchange by an individual of a share 
(or block) of stock in a first tier corporation, then in respect of a 
taxable year of a lower tier corporation (beginning after December 31, 
1962) which includes at least one day which falls within a taxable year 
of the first tier corporation (beginning after December 31, 1962), the 
portion of the excess under this subparagraph attributable to the share 
shall be an amount equal to:
    (i) The excess (if any) of (a) the United States taxes which would 
have been paid by the lower tier corporation on its taxable income 
(computed under paragraph (g) of this section) for such taxable year of 
the lower tier corporation had it been taxed as a domestic corporatin 
under chapter 1 of the Code (but without regard to subchapters F, G, H, 
L, M, N, and T thereof) for such taxable year of the lower tier 
corporation, over (b) the income, war profits,

[[Page 455]]

or excess profits taxes actually paid by the lower tier corporation 
during such taxable year (including such taxes paid to the United 
States),
    (ii) Multiplied by each of the percentages described under paragraph 
(f)(2)(ii), (iii), and (iv) of Sec.  1.1248-3 in respect of such taxable 
year of the first tier corporation,
    (iii) If the computation is made in respect of a block of stock, 
multiplied by the number of shares in the block, and
    (iv) Divided by the number of shares in the first tier corporation 
outstanding, or deemed under paragraph (c)(2) of Sec.  1.1248-3 to be 
outstanding, on each day of such taxable year of the first tier 
corporation.
    (2) More than one class of stock. If a foreign corporation for a 
taxable year has more than one class of stock outstanding, then before 
applying subparagraph (1) of this paragraph the principles of paragraph 
(e)(3) of this section shall apply.
    (g) Taxable income of lower tier corporations--(1) General. For 
purposes of paragraph (f)(1)(i) of this section, in respect of the 
individual's share (or block) the taxable income of a lower tier 
corporation shall be computed in the manner provided in paragraph (d) of 
this section, except as provided in this paragraph.
    (2) Capital loss carryover. For purposes of subparagraph (1) of this 
paragraph, the provisions of paragraph (d)(5)(ii) of this section shall 
not apply. In determining the amount of a net capital loss to be carried 
forward under section 1212 to the taxable year of a lower tier 
corporation, the portion of a net capital loss or a capital gain net 
income (net capital gain for taxable years beginning before January 1, 
1977) for a taxable year of the lower tier corporation beginning after 
December 31, 1962, which shall be taken into account shall be the amount 
of such loss or gain (as the case may be), multiplied by the percentage 
which (i) the number of days in such taxable year during the period or 
periods the individual held (or was considered to have held by reason of 
the application of section 1223) the share (or block) of stock in the 
first tier corporation sold or exchanged while the first tier 
corporation owned (within the meaning of section 958 (a)) stock in the 
lower tier corporation while the lower tier corporation was a controlled 
foreign corporation, bears to (ii) the total number of days in such 
taxable year.
    (3) Net operating loss deduction. For purposes of subparagraph (1) 
of this paragraph, the provisions of paragraph (d)(6)(iv) of this 
section shall not apply. In determining the amount of the net operating 
loss deduction for a taxable year of a lower tier corporation, the 
portion of a net operating loss incurred, or of taxable income earned, 
in a taxable year of the lower tier corporation beginning after December 
31, 1962, which shall be taken into account under section 172(b)(2) 
shall be the amount of such loss or income (as the case may be) 
multiplied by the percentage described in subparagraph (2) of this 
paragraph for such taxable year.

[T.D. 6779, 29 FR 18139, Dec. 22, 1964, as amended by T.D. 7545, 43 FR 
19653, May 8, 1978; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec.  1.1248-5  Stock ownership requirements for less developed 
country corporations.

    (a) General rule--(1) Requirements. For purposes of paragraph (e)(4) 
of Sec.  1.1248-3, a United States person shall be considered as 
satisfying the requirements of this paragraph with respect to a share 
(or block) of stock of a foreign corporation if on the date he sells or 
exchanges such share (or block):
    (i) The 10-year stock ownership requirement of paragraph (b) of this 
section is met with respect to such share (or block), and
    (ii) In the case of a United States person which is a domestic 
corporation, the requirement of paragraph (c) of this section, if 
applicable, is met.
    (2) Ownership of stock. For purposes of this section:
    (i) The rules for determining ownership of stock prescribed by 
section 958 (a) and (b) shall apply.
    (ii) Stock owned by a United States person who is an individual, 
estate, or trust which was acquired by reason of the death of the 
predecessor in interest of such United States person shall be considered 
as owned by such United States persons during the period such stock was 
owned by such predecessor in interest, and during the period such

[[Page 456]]

stock was owned by any other predecessor in interest if between such 
United States person and such other predecessor in interest there was no 
transfer other than by reason of the death of an individual.
    (b) 10-year stock ownership requirement--(1) General. A United 
States person meets the 10-year stock ownership requirement with respect 
to a share (or block) of stock in a foreign corporation which he sells 
or exchanges only if the share (or block) was owned (under the rules of 
paragraph (a)(2) of this section) by such person for a continuous period 
of at least 10 years ending on the date of the sale or exchange. See the 
first sentence of section 1248(d)(3). Thus, for example, if Jones, a 
United States person, sells a share of stock in a foreign corporation on 
January 1, 1965, the 10-year stock ownership requirement is met with 
respect to a share only if the share was owned (under the rules of 
paragraph (a)(2) of this section) by Jones continuously from January 1, 
1955, to January 1, 1965. If a foreign corporation has not been in 
existence for at least 10 years on the date of the sale or exchange of 
the share, the 10-year stock ownership requirement cannot be met.
    (2) Special rule. For purposes of this paragraph, a United States 
person shall be considered to have owned stock during the period he was 
considered to have held the stock by reason of the application of 
section 1223.
    (c) Disqualification of domestic corporation as a result of changes 
in ownership of its stock--(1) General. (i) For purposes of paragraph 
(a)(1)(ii) of this section, the requirement of this paragraph must be 
met only if, on at least one day during the 10-year period ending on the 
date of the sale or exchange by a domestic corporation of a share of 
stock in a foreign corporation, one or more noncorporate United States 
shareholders (as defined in subdivision (iii) of this subparagraph) own 
more than 50 percent of the total combined voting power of all classes 
of stock entitled to vote of the domestic corporation.
    (ii) The requirement of this paragraph is that if one or more 
persons are noncorporate United States shareholders on the first such 
day (referred to in subdivision (i) of this subparagraph), such person 
or persons continue after such first day, at all times during the 
remainder of such 10-year period, to own in the aggregate more than 50 
percent of the total combined voting power of all classes of stock 
entitled to vote of the domestic corporation. For purposes of 
determining whether a domestic corporation meets the requirement of this 
paragraph, the stock owned by a United States person who is a 
noncorporate United States shareholder of a domestic corporation on such 
first day shall not be counted at any time after he ceases during such 
10-year period to be a noncorporate United States shareholder of such 
corporation.
    (iii) For purposes of this paragraph, the term noncorporate United 
States shareholder means, with respect to a domestic corporation, a 
United States person who is an individual, estate, or trust and who owns 
10 percent or more of the total combined voting power of all classes of 
stock of such domestic corporation.
    (iv) For purposes of this paragraph, the percentage of the total 
combined voting power of stock of a foreign corporation owned by a 
United States person shall be determined in accordance with the 
principles of section 951(b) and the regulations thereunder.
    (2) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. During the entire period beginning December 31, 1954, and 
ending December 31, 1964, domestic corporation N owns all the stock of 
controlled foreign corporation X, a less developed country corporation. 
On December 31, 1964, N recognizes gain upon the sale of all its X 
stock. A, B, and C, who are unrelated individuals, were the only United 
States persons owning, or considered as owning, 10 percent or more of 
the total combined voting power of all classes of stock entitled to vote 
of N at any time during the 10-year period December 31, 1954, through 
December 31, 1964. The percentages of the total combined voting power in 
N, which A, B, and C owned during such 10-year period, are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                  Dec. 31, 1954-   Apr. 2, 1957-   Oct. 2, 1959-
                             Owner                                 Apr. 1, 1957    Oct. 1, 1959    Dec. 31, 1964
                                                                    (Percent)        (Percent)       (Percent)
----------------------------------------------------------------------------------------------------------------
A..............................................................               20              20              20
B..............................................................                9              30              30

[[Page 457]]

 
C..............................................................               30              15               9
----------------------------------------------------------------------------------------------------------------


Domestic corporation N does not meet the requirement of this paragraph 
with respect to the stock of controlled foreign corporation X for the 
following reasons:
    (i) April 2, 1957, is the first day (during the 10-year period 
ending on December 31, 1964, the date N sells the X stock) on which 
noncorporate United States shareholders of N own more than 50 percent of 
the total combined voting power in N, and thus the requirement of this 
paragraph must be met. See subparagraph (1)(i) of this paragraph. 
Although A, B, and C did own, in the aggregate, more than 50 percent of 
such voting power before April 2, 1957, the voting power owned by B is 
not counted because B was not a noncorporate United States shareholder 
of N before such date.
    (ii) Although C is a noncorporate United States shareholder on April 
2, 1957, C ceases to own 10 percent or more of the total combined voting 
power in N on October 2, 1959. Thus, after October 1, 1959, the N stock 
which C owns is not counted for purposes of determining whether the 
more-than-50-percent stock ownership test is met. See subparagraph 
(1)(ii) of this paragraph. Accordingly, after October 1, 1959, the 
requirement of this paragraph is not met.
    Example 2. Assume the same facts as in example (1), except that B's 
wife owns directly 5 percent of the total combined voting power in N 
from December 31, 1954, to December 31, 1964. On the basis of the 
assumed facts, N meets the requirement of this paragraph with respect to 
the stock of controlled foreign corporation X for the following reasons:
    (i) December 31, 1954, is the first day (of the 10-year period 
ending on the date N sells the X stock) on which noncorporate United 
States shareholders of N own more than 50 percent of the total combined 
voting power in N. B is a noncorporate United States shareholder on such 
date because he owns, and is considered as owning, 14 percent of the 
total combined voting power in N (9 percent directly, and, under section 
958(b), 5 percent constructively). Thus, on December 31, 1954, 
noncorporate United States shareholders A, B, and C own, in the 
aggregate, more than 50 percent of the total combined voting power in N.
    (ii) A, B, and C, the noncorporate United States shareholders of N 
on December 31, 1954, own, and are considered as owning, more than 50 
percent of the total voting power of N from December 31, 1954, to 
October 1, 1959. Since beginning on October 2, 1959, A owns 20 percent 
and B owns, and is considered as owning, 35 percent of the total 
combined voting power in N, A and B owns, and are considered as owning, 
more than 50 percent of the total combined voting power in N from 
October 2, 1959, to December 31, 1964. Therefore, the requirement of 
this paragraph is met.

    (d) Application of section to lower tier corporation--(1) General. 
For purposes of paragraph (g)(1)(ii) of Sec.  1.1248-3, a United States 
person satisfies the requirements of this subparagraph in respect of 
stock of a lower tier corporation which such person, by reason of his 
direct ownership of the share (or block) of the first tier corporation 
sold or exchanged, owned within the meaning of section 958(a)(2) on the 
date he sold or exchanged such share (or block), if on such date:
    (i) The 10-year stock ownership requirement of paragraph (b) of this 
section is met by such person with respect to any stock in the lower 
tier corporation which such person so owned, and
    (ii) In the case of a United States person which is a domestic 
corporation, the requirement of paragraph (c) of this section, if 
applicable, is met.
    (2) Special rule. For purposes of this paragraph, in applying 
paragraphs (b) and (c) of this section, the sale or exchange of a share 
(or block) of stock in a first tier corporation by a United States 
person shall be deemed to be the sale or exchange of any stock in a 
lower tier corporation which the person, by reason of his direct 
ownership of such share (or block) of the first tier corporation, owned 
within the meaning of section 958(a)(2) on the date he actually sold or 
exchanged such share (or block) in the first tier corporation.

[T.D. 6779, 29 FR 18142, Dec. 22, 1964]



Sec.  1.1248-6  Sale or exchange of stock in certain domestic corporations.

    (a) General rule. If a United States person recognizes gain upon the 
sale or exchange of a share (or block) of stock of a domestic 
corporation which was formed or availed of principally for the holding, 
directly or indirectly, of stock of one or more foreign corporations, 
and if the conditions of paragraph (a)(2) of Sec.  1.1248-1 would be met 
by such person in respect of the share (or block) if the domestic 
corporation were a foreign corporation, then section 1248 shall apply in 
respect of such gain in accordance with the rules provided in

[[Page 458]]

paragraph (b) of this section. See paragraph (d) of this section for a 
rule suspending the application of this section in certain 
circumstances.
    (b) Application. (1) The gain referred to in paragraph (a) of this 
section shall be included in the gross income of the United States 
person as a dividend under section 1248(a) to the extent of the earnings 
and profits attributable under Sec.  1.1248-2 or Sec.  1.1248-3, 
whichever is applicable, to the share (or block), computed, however, in 
accordance with the following rules:
    (i) The domestic corporation shall be treated as if it were a first 
tier foreign corporation;
    (ii) If, after the application of subdivision (i) of this 
subparagraph, the provisions of paragraph (a)(3) of Sec.  1.1248-2 or 
paragraph (f) of Sec.  1.1248-3 (as the case may be) would apply in 
respect of a foreign corporation the stock of which is owned (within the 
meaning of section 958(a)) by the domestic corporation treated as the 
first tier corporation, such foreign corporation shall be considered a 
lower tier corporation;
    (iii) Except to the extent provided in subdivision (iv) of this 
subparagraph, the earnings and profits of the domestic corporation 
treated as the first tier corporation accumulated for a taxable year, as 
computed under paragraph (d) of Sec.  1.1248-2 or paragraph (b) of Sec.  
1.1248-3 (as the case may be), shall be considered to be zero; and
    (iv) If, during a taxable year, a domestic corporation treated as 
the first tier corporation realizes gain upon the sale or exchange of 
stock in a foreign corporation, and solely by reason of the application 
of section 337 (relating to certain liquidations) the gain was not 
recognized, then the earnings and profits of such domestic corporation 
accumulated for the taxable year, as computed under paragraph (d) of 
Sec.  1.1248-2 or paragraph (b) of Sec.  1.1248-3 (as the case may be), 
shall be considered to be an amount equal to the portion of such gain 
realized during the taxable year which, if section 337 had not applied, 
would have been treated as a dividend under section 1248(a).
    (2) If the person selling or exchanging the stock in the domestic 
corporation is an individual, the limitation on tax attributable to the 
amount included in his gross income as a dividend under subparagraph (1) 
of this paragraph shall be determined, in accordance with the principles 
of paragraph (f) of Sec.  1.1248-4, by treating the domestic corporation 
as a first tier corporation.
    (3)(i) If the earnings and profits of the foreign corporation or 
corporations (or of the domestic corporation treated as a first tier 
corporation) to be taken into account under subparagraph (1) of this 
paragraph are not established in the manner provided in paragraph (a)(1) 
of Sec.  1.1248-7, all of the gain from the sale or exchange of the 
share (or block) of the domestic corporation shall be treated as a 
dividend.
    (ii) To the extent that the person does not establish, in the manner 
provided in paragraph (c) of Sec.  1.1248-7, the foreign taxes paid by 
such foreign corporation or corporations to be taken into account for 
purposes of computing the limitation on tax attributable to a share, 
such foreign taxes shall not be taken into account for purposes of such 
computation.
    (c) Corporation formed or availed of principally for holding stock 
of foreign corporations. Whether or not a domestic corporation is formed 
or availed of principally for the holding, directly or indirectly, of 
stock of one or more foreign corporations shall be determined on the 
basis of all the facts and circumstances of each particular case.
    (d) Temporary suspension of section 1248(e). Section 1248(e) and the 
rules of this section do not apply to a sale, exchange, or other 
disposition of the stock of a domestic corporation during a period when 
capital gains are taxed at a rate that equals or exceeds the rate at 
which ordinary income is taxed.
    (e) Effective/applicability date. Paragraph (d) of this section 
applies to a sale, exchange, or other disposition of the stock of a 
domestic corporation on or after September 21, 1987.

[T.D. 6779, 29 FR 18143, Dec. 22, 1964, as amended by T.D. 9614, 78 FR 
17042, Mar. 19, 2013]

[[Page 459]]



Sec.  1.1248-7  Taxpayer to establish earnings and profits and foreign taxes.

    (a) In general. (1) If a taxpayer sells or exchanges stock in a 
foreign corporation which was a controlled foreign corporation and the 
Commissioner determines that the taxpayer has not established the amount 
of the earnings and profits of the corporation attributable to the stock 
under Sec.  1.1248-2 or Sec.  1.1248-3, whichever is applicable, all the 
gain from such sale or exchange shall be treated as a dividend under 
section 1248(a). See section 1248(h). A taxpayer shall be considered to 
have established such amount if:
    (i) He attaches to his income tax return, filed on or before the 
last day prescribed by law (including extensions thereof) for his 
taxable year in which he sold or exchanged the stock, the schedule 
prescribed by paragraph (b) of this section or, if such last day is 
before April 1, 1965, he files such schedule before such date with the 
district director with whom such return was filed, and
    (ii) He establishes in the manner prescribed by paragraph (d) of 
this section the correctness of each amount shown on such schedule.
    (2) Notwithstanding an omission of information from, or an error 
with respect to an amount shown on, the schedule referred to in 
subparagraph (1)(i) of this paragraph, a taxpayer shall be considered to 
have complied with such subparagraph (1)(i) if:
    (i) He establishes that such omission or error was inadvertent, or 
due to reasonable cause and not due to willful neglect, and that he has 
substantially complied with the requirements of this section, and
    (ii) The taxpayer corrects such omission or error at the time when 
he complies with paragraph (d) of this section.
    (3) For the requirement to establish the amount of foreign taxes to 
be taken into account for purposes of section 1248(b), see paragraph (c) 
of this section.
    (b) Schedule attached to return. (1) The taxpayer shall attach to 
his income tax return for his taxable year in which he sold or exchanged 
the stock, a schedule showing his name, address, and identifying number. 
Except to the extent provided in paragraph (e) of this section, the 
schedule shall also show the amount of the earnings and profits 
attributable under paragraph (a) of Sec.  1.1248-2 or paragraph (a) of 
Sec.  1.1248-3 (as the case may be) to the stock, and, in order to 
support the computation of such amount, any additional information 
required by subparagraphs (2), (3), (4), and (5) of this paragraph.
    (2) The schedule shall also show for the first tier corporation, and 
for each lower tier corporation as to which information is required 
under subparagraph (4) of this paragraph, (i) the name of the 
corporation, (ii) the country under whose laws the corporation is 
created or organized, and (iii) the last day of the taxable year which 
the corporation regularly uses in computing its income.
    (3) If the amount of earnings and profits attributable to a block of 
stock sold or exchanged are computed under Sec.  1.1248-2, the schedule 
shall also show:
    (i) For each taxable year of the corporation, beginning after 
December 31, 1962, during the period the taxpayer held (or was 
considered to have held by reason of the application of section 1223, 
taking into account Sec.  1.1248-8) the block, (a) the earnings and 
profits accumulated for each such taxable year computed under paragraph 
(d) of Sec.  1.1248-2, and (b) the sum thereof computed under paragraph 
(e) (1)(i) and (2) of Sec.  1.1248-2,
    (ii) The number of shares in the block and the total number of 
shares of the corporation outstanding during such period,
    (iii) If during the period the person held (or is considered to have 
held by reason of the application of section 1223, taking into account 
Sec.  1.1248-8) the block any amount was included under section 951 in 
the gross income of such person (or another person) in respect of the 
block, the computation of the excess referred to in paragraph (e)(3)(ii) 
of Sec.  1.1248-2, and
    (iv) If the amount of earnings and profits of a lower tier 
corporation attributable to the block are computed under paragraph 
(a)(3) of Sec.  1.1248-2, (a) the number of shares in the lower tier 
corporation which the taxpayer owns within the meaning of section 
958(a)(2)(b) the total number of shares

[[Page 460]]

of such lower tier corporation outstanding during such period, and (c) 
in respect of such lower tier corporation, the information prescribed in 
subdivisions (i) and (iii) of this subparagraph.
    (4) If the amount of earnings and profits attributable to a share 
(or block) sold or exchanged are computed under Sec.  1.1248-3, the 
schedule shall also show for each taxable year of the corporation 
beginning after December 31, 1962, any day of which falls in a period or 
periods the taxpayer held (or was considered to have held by reason of 
the application of section 1223, taking into account Sec.  1.1248-8) the 
stock while the corporation was a controlled foreign corporation:
    (i) The number of days in such period or periods, but only if such 
number is less than the total number of days in such taxable year,
    (ii) The earnings and profits accumulated for the taxable year 
computed under paragraph (b) of Sec.  1.1248-3,
    (iii) The number of shares in the corporation outstanding, or deemed 
under paragraph (c)(2) of Sec.  1.1248-3 to be outstanding, on each day 
of the taxable year,
    (iv) The taxpayer's tentative ratable share computed under paragraph 
(c) or (d) (as the case may be) of Sec.  1.1248-3,
    (v) The amount of, and a short description of each adjustment to, 
the tentative ratable share under paragraph (e) of Sec.  1.1248-3, and
    (vi) The amount of the ratable share referred to in paragraph (e)(1) 
of Sec.  1.1248-3.
    (5) In respect of a taxable year referred to in subparagraph (4) of 
this paragraph of a first tier corporation, if the taxpayer is required 
to compute under paragraph (f)(5) of Sec.  1.1248-3 his ratable share of 
the earnings and profits for a taxable year of the lower tier 
corporation attributable to such taxable year of such first tier 
corporation, then for such taxable year of the lower tier corporation 
the schedule shall show:
    (i) The earnings and profits accumulated for the taxable year of the 
lower tier corporation, computed under paragraph (b) of Sec.  1.1248-3,
    (ii) Each percentage described in paragraph (f)(2) (ii), (iii), and 
(iv) of Sec.  1.1248-3,
    (iii) The amount of the taxpayer's tentative ratable share computed 
under paragraph (f) (2) or (4) (as the case may be) of Sec.  1.1248-3,
    (iv) The amount of, and a short description of each adjustment to, 
the tentative ratable share under paragraph (f)(5) of Sec.  1.1248-3, 
and
    (v) The amount of the ratable share referred to in paragraph 
(f)(5)(i) of Sec.  1.1248-3.
    (c) Foreign taxes. (1) If the taxpayer fails to establish any 
portion of the amount of any foreign taxes which he is required to 
establish by subparagraph (2) of this paragraph, then such portion shall 
not be taken into account under section 1248(b)(1)(B):
    (2) The taxpayer shall establish in respect of the stock he sells or 
exchanges the amount of the foreign taxes described in section 
1248(b)(1)(B) paid by the first tier corporation for each taxable year 
of such corporation for which the information is required under 
paragraph (b) (3) or (4) of this section, and the amount of such taxes 
paid by each lower tier corporation for each taxable year (as to which 
information is required under paragraph (b) (3)(iv) or (5) of this 
section) of each such lower tier corporation. A taxpayer shall be 
considered to have established the amount of such foreign taxes if:
    (i) He attaches to the schedule described in paragraph (b) of this 
section a supplementary schedule which, except to the extent provided in 
paragraph (e) of this section, sets forth the amount of such foreign 
taxes for each taxable year (of the first tier corporation and of each 
such lower tier corporation) as to which such amount must be established 
under this subparagraph, and
    (ii) He establishes in the manner prescribed by paragraph (d)(2) of 
this section the correctness of each amount shown on such supplementary 
schedule.
    (d) Establishing amounts on schedules. (1) A taxpayer shall be 
considered to have established, in respect of the stock he sold or 
exchanged, the correctness of an amount shown on a schedule described in 
paragraph (b) of this section only if he produces or provides within 180 
days after demand by the district director (or within such

[[Page 461]]

longer period to which such director consents):
    (i) The books of original entry, or similar systematic accounting 
records maintained by any person or persons on a current basis as 
supplements to such books, which establish to the satisfaction of the 
district director the correctness of each such amount, and
    (ii) In respect of any such books or records which are not in the 
English language, either an accurate English translation of any such 
records as are demanded, or the services of a qualified interpreter 
satisfactory to such director.
    (2) A shareholder shall be considered to have established in respect 
of such stock the correctness of an amount shown on a supplementary 
schedule described in paragraph (c) of this section only if he produces 
or provides within 180 days after demand by the district director (or 
within such longer period to which such director consents):
    (i) Evidence described in paragraph (a)(2) of Sec.  1.905-2 of such 
amount, or
    (ii) Secondary evidence of such amount, in the same manner and to 
the same extent as would be permissible under paragraph (b) of Sec.  
1.905-2 in the case of a taxpayer who claimed the benefits of the 
foreign tax credit in respect of such amount.
    (e) Insufficient information at time return is filed. If stock in a 
foreign corporation, which was a controlled foreign corporation, is sold 
or exchanged by a taxpayer during a taxable year of the corporation (or 
of a lower tier corporation) which ends after the last day of the 
taxpayer's taxable year in which the sale or exchange occurs, and if:
    (1) For the taxpayer's taxable year, the last day referred to in 
paragraph (a)(1) of this section for filing his income tax return with a 
schedule prescribed in paragraph (b) of this section, and, if 
applicable, with a supplemental schedule prescribed in paragraph (c) of 
this section, or
    (2) The last day referred to in paragraph (a)(1) of this section 
(that is, April 1, 1965) for filing any such schedule or schedules with 
the district director with whom such return was filed,

Is not later than 90 days after the close of such taxable year of any 
such corporation, then such return with such schedule or schedules may 
be filed, or any such schedule or schedules may be filed, on the basis 
of estimates of amounts or percentages (for any such taxable year of any 
such corporation) required to be shown on any such schedule or 
schedules. If any such estimate differs from the actual amount or 
percentage, the taxpayer shall, within 90 days after the close of any 
such taxable year of any such corporation, file (or attach to a claim 
for refund or amended return filed) at the office of the district 
director with whom he filed the return a new schedule or schedules 
showing the actual amounts or percentages.

[T.D. 6779, 29 FR 18143, Dec. 22, 1964, as amended by T.D. 9345, 72 FR 
41445, July 30, 2007: T.D. 9614, 78 FR 17041, Mar. 19, 2013]



Sec.  1.1248-8  Earnings and profits attributable to stock following 
certain non-recognition transactions.

    (a) Scope. This section sets forth rules for the attribution of 
earnings and profits for purposes of section 1248 and Sec.  1.1248-
1(a)(1) and to supplement the rules in Sec. Sec.  1.1248-2 and 1.1248-3 
with respect to--
    (1) Stock that an exchanging shareholder receives, or an acquiring 
corporation receives, in restructuring transactions. Except as otherwise 
provided in this paragraph (a), stock of a foreign corporation that an 
exchanging shareholder receives, or an acquiring corporation receives, 
pursuant to a restructuring transaction (as defined in paragraph 
(b)(1)(vii) of this section) in which the holding period of such stock 
is determined by application of section 1223(1) or 1223(2), whichever is 
appropriate. This section shall not apply to an exchange otherwise 
described in this paragraph (a)(1) if, as a result of the exchange, the 
exchanging shareholder is required to include in income as a deemed 
dividend the section 1248 amount pursuant to Sec.  1.367(b)-4(b). See 
paragraphs (b)(2) and (3) of this section;
    (2) Nonexchanging shareholders. Stock of a foreign corporation that 
participates in a restructuring transaction that is held by a non-
exchanging shareholder (as defined in paragraph (b)(1)(vi) of this 
section) in the restructuring transaction. See paragraph (b)(4) of this 
section;

[[Page 462]]

    (3) Section 381 transactions. Stock of a foreign corporation that 
receives assets in a transfer to which section 361(a) or (b) applies in 
connection with a reorganization described in section 368(a)(1)(A), (C), 
(D), (F), or (G), or in a distribution to which section 332 applies, and 
to which section 381(c)(2)(A) and Sec.  1.381(c)(2)-1(a) apply. See 
paragraph (b)(6) of this section; or
    (4) Section 332 liquidations. Stock of a foreign corporation that 
receives the assets and liabilities of a foreign corporation in a 
complete liquidation described in section 332 if the foreign distributee 
is a foreign corporate shareholder (as defined in paragraph (b)(1)(v) of 
this section) of the liquidating corporation. See paragraph (c) of this 
section.
    (b) Earnings and profits attributable to stock following a 
restructuring transaction--(1) Definitions. The following definitions 
apply for purposes of this section:
    (i) Acquired corporation is a corporation whose stock or assets are 
acquired in exchange for stock in (or stock in and other property of) 
either the acquiring corporation or a foreign corporation that controls, 
within the meaning of section 368(c), the acquiring corporation in a 
restructuring transaction.
    (ii) Acquiring corporation is a corporation that acquires the stock 
or assets of an acquired corporation in a restructuring transaction.
    (iii) Controlled foreign corporation is a corporation described in 
either section 953(c)(1)(B) or section 957.
    (iv) Exchanging shareholder is a person that exchanges--
    (A) In a restructuring transaction qualifying as a nonrecognition 
transaction within the meaning of section 7701(a)(45) and described in 
section 354, 356, or 361(a) or (b), stock in an acquired corporation for 
stock in either a foreign acquiring corporation or a foreign corporation 
that is in control, within the meaning of section 368(c), of an 
acquiring corporation (whether domestic or foreign); or
    (B) In a restructuring transaction qualifying as a nonrecognition 
transaction within the meaning of section 7701(a)(45) and described in 
section 351, property (including stock) for stock in a foreign acquiring 
corporation.
    (v) Foreign corporate shareholder is a foreign corporation that--
    (A) Owns stock of another foreign corporation; and
    (B) Has a section 1248 shareholder that is also a section 1248 
shareholder of the other foreign corporation.
    (vi) Non-exchanging shareholder is, at the time the acquiring 
corporation participates in a restructuring transaction, either a 
section 1248 shareholder or a foreign corporate shareholder of the 
acquiring corporation that is not an exchanging shareholder with respect 
to that corporation.
    (vii) Restructuring transaction is a transaction qualifying as a 
nonrecognition transaction within the meaning of section 7701(a)(45) and 
described in section 351, 354, 356, or 361.
    (viii) Section 1248 shareholder is any United States person that 
satisfies the ownership requirements of section 1248(a)(2) and Sec.  
1.1248-1(a)(2) with respect to a foreign corporation.
    (2) Earnings and profits attributable to stock that an exchanging 
shareholder receives in a restructuring transaction. Where, in a 
restructuring transaction, an exchanging shareholder receives stock in a 
foreign corporation, the holding period of which is determined under 
section 1223(1), and the exchanging shareholder is either a section 1248 
shareholder or a foreign corporate shareholder with respect to that 
foreign corporation immediately after the restructuring transaction, the 
earnings and profits attributable to the stock the exchanging 
shareholder receives shall be determined pursuant to the rules in 
paragraphs (b)(2)(i), (ii), and (iii) of this section.
    (i) Exchanging shareholder exchanges property that is not stock of a 
foreign acquired corporation with respect to which the exchanging 
shareholder is a section 1248 shareholder or a foreign corporate 
shareholder. Except as provided in paragraph (b)(2)(iv) of this section, 
where the exchanging shareholder exchanges in a restructuring 
transaction property that is not stock of a foreign acquired corporation 
with respect to which the exchanging shareholder is a section 1248 
shareholder or a foreign corporate shareholder immediately before the

[[Page 463]]

transaction, the earnings and profits attributable to the stock that the 
exchanging shareholder receives in the restructuring transaction will be 
determined in accordance with Sec.  1.1248-2 or Sec.  1.1248-3, 
whichever is applicable, without regard to any portion of the section 
1223(1) holding period in that stock that is before the restructuring 
transaction. See paragraph (b)(7), Example 1 of this section.
    (ii) Exchanging shareholder exchanges stock of a foreign corporation 
with respect to which the exchanging shareholder is either a section 
1248 shareholder or a foreign corporate shareholder. Except as provided 
in paragraph (b)(2)(iii) of this section, where the exchanging 
shareholder exchanges in a restructuring transaction stock of a foreign 
acquired corporation with respect to which the exchanging shareholder is 
either a section 1248 shareholder or a foreign corporate shareholder 
immediately before such restructuring transaction, the earnings and 
profits attributable to the stock that the exchanging shareholder 
receives in the restructuring transaction shall be the sum of the 
earnings and profits attributable to--
    (A) The stock of the foreign acquired corporation exchanged 
(determined in accordance with Sec.  1.1248-2 or Sec.  1.1248-3, 
whichever is applicable, and this section, if applicable) that was 
accumulated before the restructuring transaction; and
    (B) The stock of the foreign corporation that the exchanging 
shareholder receives in the restructuring transaction (determined in 
accordance with Sec.  1.1248-2 or Sec.  1.1248-3, whichever is 
applicable, and this section, if applicable), without regard to any 
portion of the section 1223(1) holding period in that stock that is 
prior to the restructuring transaction. See paragraph (b)(7) Example 2, 
Example 4, and Example 6 of this section.
    (iii) Exchanging shareholder receives stock in a foreign corporation 
that controls a domestic acquiring corporation. Where the acquiring 
corporation is a domestic corporation and the exchanging shareholder 
receives in a restructuring transaction stock in a foreign corporation 
that controls (within the meaning of section 368(c)) the domestic 
acquiring corporation, the earnings and profits attributable to the 
stock that the exchanging shareholder receives in the restructuring 
transaction shall consist solely of the amount of earnings and profits 
attributable to such stock (determined in accordance with Sec.  1.1248-2 
or Sec.  1.1248-3, whichever is applicable, and this section, if 
applicable) without regard to any portion of the section 1223(1) holding 
period in that stock that is prior to the restructuring transaction. See 
paragraph (b)(7) Example 5 of this section.
    (iv) Exchanging shareholder exchanges stock of a domestic acquired 
corporation for stock of a foreign corporation with respect to which the 
exchanging shareholder is a section 1248 shareholder after the exchange. 
If there is a restructuring transaction described in Sec.  1.1248(f)-
1(b)(3) to which the exception provided by Sec.  1.1248(f)-2(c) applies 
with respect to a distribution by a domestic acquired corporation of 
stock of a foreign corporation to one or more exchanging shareholders, 
the earnings and profits attributable to a portion of a share of stock 
as provided under Sec.  1.1248(f)-2(c)(2) (or a whole share, if no 
division is required) will be determined pursuant to paragraphs 
(b)(2)(iv)(A) and (b)(2)(iv)(B) of this section.
    (A) The earnings and profits attributable to a portion of a share of 
stock as provided under Sec.  1.1248(f)-2(c)(2)(i) (or a whole share, if 
no division is required) will be determined in accordance with Sec.  
1.1248-2 or Sec.  1.1248-3 (and this section, as applicable), without 
regard to any portion of the section 1223(1) holding period in that 
portion of a share (or whole share) that is before the restructuring 
transaction.
    (B) The earnings and profits attributable to a portion of a share of 
stock as provided under Sec.  1.1248(f)-2(c)(2)(ii) (or whole share, if 
no division is required) is the amount in paragraph (b)(2)(iv)(B)(1) of 
this section, increased by the amounts described in paragraph 
(b)(2)(iv)(B)(2) of this section.
    (1) The amount equal to the product of the ratio of the value of the 
share of stock to the value of all shares of stock received by the 
exchanging shareholder multiplied by the amount in paragraph 
(b)(2)(iv)(B)(1)(i) of this section, reduced by the amount in paragraph 
(b)(2)(iv)(B)(1)(ii) of this section.

[[Page 464]]

    (i) The amount equal to the product of the exchanging shareholder's 
ownership interest percentage (within the meaning of Sec.  1.367(a)-
7(f)(7)) in the domestic acquired corporation multiplied by the earnings 
and profits attributable to the block of stock of the foreign 
corporation transferred in the section 361 exchange that relates to the 
portion (or whole share), determined in accordance with Sec.  1.1248-2 
or Sec.  1.1248-3 (and this section, as applicable) immediately before 
the restructuring transaction (and without taking into account the 
application of sections 367 and 1248 to the transfer of the stock of the 
foreign corporation in the section 361 exchange).
    (ii) The amount of any dividend included in the domestic acquiring 
corporation's gross income under section 1248(a) on the transfer of the 
block of stock of the foreign corporation, which relates to the portion 
or whole share, in the section 361 exchange by reason of gain recognized 
under Sec. Sec.  1.367(a)-6 or 1.367(a)-7(c)(2) attributable to the 
exchanging shareholder.
    (2) The earnings and profits determined in accordance with Sec.  
1.1248-2 or Sec.  1.1248-3 (and this section, as applicable), without 
regard to any portion of the section 1223(1) holding period in that 
stock that is before the restructuring transaction. See Sec.  1.1248(f)-
2(e), Example 2 and Example 3.
    (3) Earnings and profits attributable to stock in a foreign 
corporation certain acquiring corporations receive in a restructuring 
transaction. Where an acquiring corporation receives, in a restructuring 
transaction, stock in a foreign acquired corporation, the holding period 
of which is determined under section 1223(2), and the acquiring 
corporation is either a section 1248 shareholder or a foreign corporate 
shareholder with respect to that foreign acquired corporation 
immediately after the restructuring transaction, the earnings and 
profits attributable to the foreign acquired corporation stock that the 
acquiring corporation receives shall be determined pursuant to the rules 
in paragraphs (b)(3)(i) and (ii) of this section.
    (i) Stock of a foreign corporation with respect to which the 
exchanging shareholder is neither a section 1248 shareholder nor a 
foreign corporate shareholder. The earnings and profits attributable to 
the stock of the foreign acquired corporation that the acquiring 
corporation receives in a restructuring transaction where the exchanging 
shareholder is neither a section 1248 shareholder nor a foreign 
corporate shareholder with respect to that foreign acquired corporation 
immediately before the restructuring transaction shall be determined in 
accordance with Sec.  1.1248-2 or Sec.  1.1248-3, whichever is 
applicable, without regard to any portion of the section 1223(2) holding 
period in that stock that is prior to the restructuring transaction.
    (ii) Stock of a foreign corporation with respect to which the 
exchanging shareholder is either a section 1248 shareholder or a foreign 
corporate shareholder. The earnings and profits attributable to the 
stock of a foreign acquired corporation that the acquiring corporation 
receives in the restructuring transaction where the exchanging 
shareholder is either a section 1248 shareholder or a foreign corporate 
shareholder with respect to that foreign corporation immediately before 
the restructuring transaction shall be determined in accordance with 
Sec.  1.1248-2 or Sec.  1.1248-3, whichever is applicable, with regard 
to the portion of the section 1223(2) holding period of the stock that 
the exchanging shareholder took into account for purposes of attributing 
earnings and profits to that stock (determined in accordance with this 
section). See paragraph (b)(7) Example 3, Example 5, and Example 7 of 
this section.
    (4) Earnings and profits attributable to stock held by a non-
exchanging shareholder in a foreign acquiring corporation. (i) Except to 
the extent paragraph (b)(4)(ii) of this section applies, the earnings 
and profits attributable to stock of a foreign acquiring corporation 
held by a non-exchanging shareholder immediately prior to a 
restructuring transaction continue to be attributed to such stock, and 
the earnings and profits of the acquired corporation accumulated prior 
to the restructuring transaction attributable to the stock of an 
acquired corporation are not attributed to the non-exchanging 
shareholder's stock in the foreign acquiring corporation. See Sec.  
1.1248-2 or

[[Page 465]]

Sec.  1.1248-3 (whichever is applicable) and, as applicable, paragraph 
(b)(6) of this section; see also paragraph (b)(7) Example 2 and Example 
4 of this section.
    (ii) Where a non-exchanging shareholder holds stock in a foreign 
corporation that is also an exchanging shareholder and a foreign 
acquiring corporation in the same restructuring transaction--
    (A) The earnings and profits attributable to such stock shall be the 
sum of the earnings and profits attributable to the stock of such 
foreign corporation immediately before the restructuring transaction 
(including amounts attributed under section 1248(c)(2)) and the earnings 
and profits attributable to the stock of the foreign acquiring 
corporation accumulated after the restructuring transaction (including 
amounts attributed under section 1248(c)(2)); and
    (B) Paragraph (b)(6) of this section applies. See paragraph (b)(7) 
Example 8 of this section.
    (iii) Where the acquiring corporation is a foreign corporate 
shareholder with respect to stock of a foreign acquired corporation, 
paragraph (b)(3) of this section shall not apply for purposes of 
determining the earnings and profits attributable to stock in the 
foreign acquiring corporation owned by a non-exchanging shareholder 
thereof (see section 1248(c)(2)). See paragraph (b)(7) Example 6 of this 
section.
    (5) Reduction in earnings and profits attributable to stock to 
prevent multiple inclusions with respect to the same earnings and 
profits. To the extent consistent with the principles of section 1248, 
adjustments to earnings and profits attributable to stock shall be made 
such that section 1223(1) and (2) and this section are applied in a 
manner that results in earnings and profits being taken into account 
only once. Thus, for example, when a controlled foreign corporation 
sells or exchanges all or part of the stock of another foreign 
corporation to which earnings and profits are attributable pursuant to 
this paragraph (b) or paragraph (c) of this section, proportionate 
reductions shall be made to the earnings and profits attributed to the 
stock of the selling foreign corporate shareholder owned by a section 
1248 shareholder. See paragraph (b)(7) Example 7 of this section.
    (6) Special rule regarding section 381. Solely for purposes of 
determining the earnings and profits (or deficit in earnings and 
profits) attributable to stock pursuant to this paragraph (b), the 
earnings and profits of a corporation shall not include earnings and 
profits that are treated as received or incurred under section 
381(c)(2)(A) and Sec.  1.381(c)(2)-1(a). See paragraph (b)(7) Example 4 
of this section.
    (7) Examples. The application of this paragraph (b) is illustrated 
by the following examples. Unless otherwise indicated, in the following 
examples assume that--
    (i) There is no immediate gain recognition pursuant to section 
367(a)(1) and the regulations under that section (either through 
operation of the rules or because the appropriate parties have entered 
into a gain recognition agreement under Sec. Sec.  1.367(a)-3(b) and 
1.367(a)-8);
    (ii) There is no income inclusion required pursuant to section 
367(b) and the regulations under that section, and all reporting 
requirements in those regulations are complied with;
    (iii) References to earnings and profits are to earnings and profits 
that would be includible in income as a dividend under section 1248 and 
the regulations under that section if stock to which the earnings and 
profits are attributable were sold or exchanged by its shareholder;
    (iv) Each corporation has only a single class of stock outstanding 
and uses the calendar year as its taxable year; and
    (v) Each transaction is unrelated to all other transactions.

    Example 1. A section 351 exchange of property other than stock in a 
foreign corporation with respect to which the exchanging shareholder is 
either a section 1248 shareholder or a foreign corporate shareholder. 
(i) Facts. DC1, a domestic corporation, has owned all the stock of CFC, 
a foreign corporation, since CFC's formation on January 1, year 3. On 
December 31, year 5, DC2, a domestic corporation unrelated to DC1, 
contributes property it has held since January 1, year 1, to CFC in 
exchange for voting stock of CFC in a restructuring transaction that is 
an exchange under section 351. The property that DC2 contributes is not 
stock in a foreign corporation

[[Page 466]]

with respect to which DC2 was either a section 1248 shareholder or a 
foreign corporate shareholder. DC2 receives 80% of the voting stock of 
CFC in the restructuring transaction and its holding period in that CFC 
stock, determined pursuant to section 1223(1), began on January 1, year 
1. CFC has $100 of accumulated earnings and profits on December 31, year 
5. On December 31, year 7, when the accumulated earnings and profits of 
CFC are $200, DC2, a section 1248 shareholder with respect to CFC, sells 
its CFC stock.
    (ii) Result. Under paragraph (b)(2)(i) of this section, the earnings 
and profits attributable to the CFC stock sold by DC2 are $80. This 
amount consists of none of the $100 of earnings and profits accumulated 
by CFC before the restructuring transaction, and 80% of the $100 of 
earnings and profits of CFC accumulated after the restructuring 
transaction.
    Example 2. A section 351 exchange of controlled foreign corporation 
stock by a United States person for stock in a controlled foreign 
corporation in a restructuring transaction. (i) Facts. The facts are the 
same as in Example 1 except as follows. The property that DC2 
contributes is 100% of the stock in CFC2, a foreign corporation. DC2 has 
owned all the stock of CFC2 since CFC2's formation on January 1, year 2, 
and CFC2 has $200 of earnings and profits as of December 31, year 5. 
CFC2 does not accumulate any additional earnings and profits from 
December 31, year 5, to December 31, year 7. On December 31, year 7, 
when the accumulated earnings and profits of CFC are $200, DC2, a 
section 1248 shareholder with respect to CFC, sells its CFC stock. Also 
on that date, DC1 sells its CFC stock.
    (ii) Result. (A) DC2 sale. Pursuant to paragraph (b)(2)(ii) of this 
section, the earnings and profits attributable to the CFC stock sold by 
DC2 are $280. This amount consists of all of the $200 of earnings and 
profits of CFC2 accumulated before the restructuring transaction (see 
also section 1248(c)(2)), none of the $100 of earnings and profits 
accumulated by CFC before the restructuring transaction, and 80% of the 
$100 of earnings and profits of CFC accumulated after the restructuring 
transaction.
    (B) DC1 sale. Pursuant to paragraph (b)(4) of this section, the 
earnings and profits attributable to the CFC stock sold by DC1, a non-
exchanging shareholder in the restructuring transaction, are $120. This 
amount consists of all of the $100 of earnings and profits of CFC 
accumulated before the restructuring transaction, none of the $200 of 
earnings and profits of CFC2 accumulated before the restructuring 
transaction, and 20% of the $100 of earnings and profits of CFC 
accumulated after the restructuring transaction.
    Example 3. A section 351 exchange of controlled foreign corporation 
stock by a United States person for stock in a domestic corporation in a 
restructuring transaction. (i) Facts. DC1, a domestic corporation, has 
owned all of the stock of CFC, a foreign corporation, since CFC's 
formation on January 1, year 1. DC1 has also owned all the stock of DC2, 
a domestic corporation, since DC2's formation on January 1, year 1. On 
December 31, year 2, DC1 contributes the stock of CFC to DC2 in exchange 
for stock in DC2 in a restructuring transaction that is an exchange 
described in section 351. On December 31, year 2, CFC has $100 of 
accumulated earnings and profits. DC2 has a basis in the CFC stock 
determined under section 362, and is considered to have held the CFC 
stock since January 1, year 1, pursuant to section 1223(2). On December 
31, year 4, when the accumulated earnings and profits of CFC are still 
$100, DC2 sells its CFC stock.
    (ii) Result. Under paragraph (b)(3)(ii) of this section, $100 of 
accumulated earnings and profits of CFC is attributable to the stock of 
CFC sold by DC2, even though DC2 did not hold the stock of CFC during 
the time CFC accumulated the earnings and profits.
    Example 4. Acquisition of a controlled foreign corporation by a 
controlled foreign corporation in a reorganization described in section 
368(a)(1)(C) (or section 368(a)(1)(B)). (i) Facts. DC1, a domestic 
corporation, has owned all the stock of CFC1, a foreign corporation, 
since its formation on January 1, year 1. DC2, a domestic corporation 
unrelated to DC1, has owned all of the stock of CFC2, a foreign 
corporation, since its formation on January 1, year 2. On December 31, 
year 3, pursuant to a restructuring transaction that is a reorganization 
described in section 368(a)(1)(C), CFC1 transfers all of its assets to 
CFC2 in exchange for 25% of the voting stock of CFC2. CFC1 distributes 
the CFC2 stock to DC1 and the CFC1 stock is cancelled. DC1's holding 
period in the CFC2 stock, determined under section 1223(1), begins on 
January 1, year 1. On December 31, year 3, CFC1 has $100 of accumulated 
earnings and profits and CFC2 has $200 of accumulated earnings and 
profits. CFC2 succeeds to the $100 of CFC1 accumulated earnings and 
profits in the reorganization under section 381. From January 1, year 4 
to December 31, year 5, CFC2 incurred a deficit in earnings and profits 
in the amount of ($200). On December 31, year 5, both DC1 and DC2 sell 
their stock in CFC2.
    (ii) Result. (A) DC1. Pursuant to paragraph (b)(2)(ii) of this 
section, $50 of earnings and profits is attributable to the CFC2 stock 
sold by DC1. This amount consists of $100 of CFC1's earnings and profits 
accumulated before the restructuring transaction, reduced by 25% of 
CFC2's ($200) post-restructuring transaction deficit in earnings and 
profits. None of the $200 of CFC2's earnings and profits accumulated by 
CFC2 prior to the reorganization is attributed to the CFC2 stock sold

[[Page 467]]

by DC1. Also, none of the earnings and profits CFC2 succeeded to under 
section 381 is attributed to the CFC2 stock sold by DC1, pursuant to 
paragraph (b)(6) of this section.
    (B) DC2. Pursuant to paragraph (b)(4) of this section, there is $50 
of accumulated earnings and profits attributable to the CFC2 stock sold 
by DC2. This amount consists of all of the $200 of CFC2's earnings and 
profits accumulated by CFC2 prior to the reorganization, reduced by 75% 
of CFC2's deficit in earnings and profits in the amount of ($200) 
incurred after the restructuring transaction. None of the $100 of CFC1 
accumulated earnings and profits succeeded to under section 381 is 
attributable to the CFC2 stock sold by DC2, pursuant to paragraph (b)(6) 
of this section.
    (C) Section 368(a)(1)(B) reorganization. If, instead of DC1 
acquiring its 25% interest in CFC2 pursuant to a reorganization 
described in section 368(a)(1)(C), DC1 had transferred the stock of CFC1 
to CFC2 in exchange for 25% of the voting stock of CFC2 in a 
reorganization described in section 368(a)(1)(B), the results would be 
the same as described in paragraphs (ii) (A) and (B) of this Example 4.
    Example 5. Acquisition of the stock of a foreign corporation that 
controls a domestic acquiring corporation in a triangular reorganization 
described in section 368(a)(1)(C). (i) Facts. DC1, a domestic 
corporation, has owned all the stock of CFC1, a foreign corporation, 
since its formation on January 1, year 1. CFC1 has owned all the stock 
of CFC2, a foreign corporation, since its formation on January 1, year 
1. FC, a foreign corporation that is not a controlled foreign 
corporation, has owned all of the stock of DC2, a domestic corporation, 
since its formation on January 1, year 2. On December 31, year 3, 
pursuant to a restructuring transaction that was a triangular 
reorganization described in section 368(a)(1)(C), CFC1 transfers all of 
its assets, including the CFC2 stock, to DC2 in exchange for 60% of the 
voting stock of FC. CFC1 transfers the voting stock of FC to DC1 and the 
CFC1 stock is cancelled. Pursuant to section 1223(1), DC1 is considered 
to have held the stock of FC since January 1, year 1. Under section 
1223(2), DC2 is considered to have held the stock of CFC2 since January 
1, year 1. On December 31, year 3, CFC1 has $100 of earnings and 
profits, CFC2 has $300 of earnings and profits, and FC has $200 of 
earnings and profits. DC1 includes the $100 all earnings and profits 
amount attributable to its CFC1 stock in income as a deemed dividend 
under Sec.  1.367(b)-3 upon the exchange of CFC1 stock for FC stock. 
Pursuant to the lower-tier earnings exclusion of Sec.  1.367(b)-
2(d)(3)(ii), that amount does not include the $300 of earnings and 
profits of CFC2. From January 1, year 4, until December 31, year 5, FC 
(now a controlled foreign corporation) accumulates an additional $50 of 
earnings and profits. From January 1, year 4 until December 31, year 5, 
CFC2 accumulates an additional $100 of earnings and profits. On December 
31, year 5, DC1 sells its stock in FC and DC2 sells its stock in CFC2.
    (ii) Result. (A) DC1. Pursuant to paragraph (b)(2)(iii) of this 
section, there is $30 of earnings and profits attributable to the stock 
of FC sold by DC1. This amount consists of 60% of the $50 of earnings 
and profits accumulated by FC after the restructuring transaction, and 
none of the earnings and profits accumulated by CFC1, CFC2, or FC before 
the restructuring transaction.
    (B) DC2. Pursuant to paragraph (b)(3)(ii) of this section, there is 
$400 of earnings and profits attributable to the stock of CFC2 sold by 
DC2. This amount consists of all of the earnings and profits accumulated 
by CFC2 during DC2's section 1223(2) holding period.
    Example 6. Acquisition of the stock of a foreign corporation that 
controls a foreign acquiring corporation in a reorganization described 
in section 368(a)(1)(C). (i) Facts. DC1, a domestic corporation, has 
owned all the stock of CFC1, a foreign corporation, since its formation 
on January 1, year 1. CFC1 has owned all the stock of CFC2, a foreign 
corporation, since its formation on January 1, year 1. FC, a foreign 
corporation that is not a controlled foreign corporation, has owned all 
of the stock of FC2, a foreign corporation, since its formation on 
January 1, year 2. On December 31, year 3, pursuant to a restructuring 
transaction that was a triangular reorganization described in section 
368(a)(1)(C), CFC1 transfers all of its assets, including the CFC2 
stock, to FC2 in exchange for 60% of the voting stock of FC. CFC1 
transfers the voting stock of FC to DC1 and the CFC1 stock is cancelled. 
Pursuant to section 1223(1), DC1 is considered to have held the stock of 
FC since January 1, year 1. Under section 1223(2), FC2 is considered to 
have held the stock of CFC2 since January 1, year 1. On December 31, 
year 3, CFC1 has $100 of earnings and profits, CFC2 has $300 of earnings 
and profits, FC has $200 of earnings and profits, and FC2 has no 
earnings and profits. From January 1, year 4, until December 31, year 5, 
FC (now a controlled foreign corporation) accumulates an additional $50 
of earnings and profits. From January 1, year 4 until December 31, year 
5, CFC2 accumulates an additional $100 of earnings and profits. FC2, a 
controlled foreign corporation after the restructuring transaction, 
accumulates $100 of earnings and profits from January 1, year 4, until 
December 31, year 5. On December 31, year 5, DC1 sells its stock in FC.
    (ii) Result. Pursuant to paragraphs (b)(2)(ii) and (b)(4)(iii) of 
this section, there is $550 of earnings and profits attributable to the 
stock of FC sold by DC1. This amount consists of all $400 of the CFC1 
and CFC2 earnings and profits accumulated before the restructuring 
transaction (see also section 1248(c)(2)), and 60% of the $250 of the 
earnings

[[Page 468]]

and profits accumulated by FC, FC2, and CFC2 after the restructuring 
transaction.
    Example 7. Acquisition of controlled foreign corporation stock by a 
controlled foreign corporation in a reorganization described in section 
368(a)(1)(B), followed by a sale of the acquired stock by the acquiring 
controlled foreign corporation. (i) Facts. DC1, a domestic corporation, 
has owned all of the outstanding stock of CFC1, a foreign corporation, 
since its formation on January 1, year 1. CFC1 has owned all of the 
outstanding stock of CFC3, a foreign corporation, since its formation on 
January 1, year 1. DC2, a domestic corporation unrelated to DC1, has 
owned all of the outstanding stock of CFC2, a foreign corporation, since 
its formation on January 1, year 2. On December 31, year 3, pursuant to 
a restructuring transaction that is a reorganization described in 
section 368(a)(1)(B), CFC1 transfers all of the stock of CFC3 to CFC2 in 
exchange for 40% of CFC2's stock. On December 31, year 3, CFC2 and CFC3 
have, respectively, $40 and $20 of earnings and profits. On December 31, 
year 5, when the accumulated earnings and profits of CFC3 are $50 ($20 
of earnings and profits as of December 31, year 3, plus $30 of earnings 
and profits generated from January 1, year 4, through December 31, year 
5), CFC2 sells the stock of CFC3 in a transaction to which section 
964(e) applies.
    (ii) Result. (A) CFC2. Pursuant to paragraph (b)(3)(ii) of this 
section, there is $50 of earnings and profits attributable to the CFC3 
stock sold by CFC2. This amount consists of the accumulated earnings and 
profits attributable to CFC2's entire section 1223(2) holding period in 
the CFC3 stock.
    (B) CFC1, DC2, and DC1. Under paragraph (b)(5) of this section, the 
earnings and profits attributable to the CFC2 stock held by CFC1 and 
DC2, and the earnings and profits attributable to the CFC1 stock held by 
DC1, will be reduced (regardless of whether CFC2 recognizes gain on its 
sale of CFC3 stock).
    (1) CFC1. The earnings and profits attributable to the CFC2 stock 
held by CFC1 will be reduced by $32, or the amount of earnings and 
profits as of December 31, year 5, that would have been attributable to 
the CFC2 stock held by CFC1 pursuant to paragraph (b)(2)(ii) of this 
section. This amount consists of all of the $20 of earnings and profits 
accumulated by CFC3 before the restructuring transaction and 40% of the 
$30 of earnings and profits accumulated by CFC3 after the restructuring 
transaction (.40 x $30 = $12).
    (2) DC1. The earnings and profits attributable to the CFC1 stock 
held by DC1 will also be reduced by $32, or the amount of earnings and 
profits that would have been attributable to the CFC1 stock held by DC1 
as of December 31, year 5.
    (3) DC2. The earnings and profits attributable to the CFC2 stock 
held by DC2 will be reduced by $18, or the amount of earnings and 
profits that would have been attributable to the CFC2 stock held by DC2 
as of December 31, year 5, under paragraph (b)(4) of this section. This 
amount consists of 60% of the $30 (.60 x $30 = $18) of earnings and 
profits accumulated by CFC3 after the restructuring transaction.
    (C) Partial sale by CFC2. If, instead of selling 100% of the CFC3 
stock, on December 31, year 5, CFC2 sells only 50% of its CFC3 stock, 
paragraph (b)(5) of this section requires CFC1 to reduce the earnings 
and profits of CFC3 attributable to its CFC2 stock to $16. Similarly, 
DC1 would be required to reduce the earnings and profits of CFC3 
attributable to its CFC1 stock by $16. Paragraph (b)(5) of this section 
also requires DC2 to reduce the CFC3 earnings and profits attributable 
to its CFC2 stock by $9. These reductions occur without regard to 
whether CFC2 recognizes gain on its sale of CFC3 stock.
    Example 8. Acquisition of the assets of a lower-tier controlled 
foreign corporation by an upper-tier controlled foreign corporation in a 
restructuring transaction described in section 368(a)(1)(C). (i) Facts. 
DC, a domestic corporation, has owned all the stock of CFC1, a 
controlled foreign corporation, since its formation on January 1, year 
1. CFC1 is a holding company that has owned 79% of the stock of CFC2, a 
controlled foreign corporation, since its formation on January 1, year 
1. The other 21% of CFC2 stock is owned by X, an unrelated party. On 
December 31, year 1, CFC2 has $200 of earnings and profits. On December 
31, year 1, CFC1 has no accumulated earnings and profits. On December 
31, year 1, pursuant to a restructuring transaction described in section 
368(a)(1)(C), CFC2 transfers all its properties to CFC1. In exchange, 
CFC1 assumes the liabilities of CFC2 and transfers to CFC2 voting stock 
representing 21% of the stock of CFC1. CFC2 distributes the voting stock 
to X and liquidates. The liabilities assumed do not exceed 20% of the 
value of the properties of CFC2. From January 1, year 2, to December 31, 
year 3, CFC1 accumulates $100 of earnings and profits. On December 31, 
year 3, DC sells its CFC1 stock.
    (ii) Result. Pursuant to paragraph (b)(4)(ii) of this section, there 
is $237 of earnings and profits attributable to DC's CFC1 stock. This 
amount consists of 79% of CFC2's $200 of earnings and profits 
accumulated before the restructuring transaction (see section 
1248(c)(2)), and 79% of CFC1's $100 of earnings and profits accumulated 
after the restructuring transaction. Pursuant to paragraph (b)(6) of 
this section, none of CFC2's $200 of earnings and profits to which CFC1 
succeeded under section 381 would be attributable to DC's CFC1 stock.

    (c) Earnings and profits attributable to stock of a foreign 
distributee corporation that is a foreign corporate shareholder with 
respect to a foreign liquidating corporation--(1) General rule. If a 
foreign

[[Page 469]]

corporation (liquidating corporation) makes a distribution of property 
in complete liquidation under section 332 to a foreign corporation 
(distributee), and immediately before the liquidation the distributee 
was a foreign corporate shareholder with respect to the liquidating 
foreign corporation, the amount of earnings and profits attributable to 
the distributee stock upon its subsequent sale or exchange will be 
determined under this paragraph (c)(1). The earnings and profits 
attributable will be the sum of the earnings and profits attributable to 
the stock of the distributee immediately before the liquidation 
(including amounts attributed under section 1248(c)(2)) and the earnings 
and profits attributable to the stock of the distributee accumulated 
after the liquidation (including amounts attributed under section 
1248(c)(2)).
    (2) Special rule regarding section 381. Solely for purposes of 
determining the earnings and profits (or deficit in earnings and 
profits) attributable to stock under this paragraph (c), the attributed 
earnings and profits of a corporation shall not include earnings and 
profits that are treated as received or incurred pursuant to section 
381(c)(2)(A) and Sec.  1.381(c)(2)-1(a).
    (3) Example-- (i) Facts. DC, a domestic corporation, has owned all 
of the stock of CFC1, a foreign corporation, since its formation on 
January 1, year 1. CFC1 is an operating company that has owned all of 
the stock of CFC2, a foreign corporation, since its formation on January 
1, year 1. On December 31, year 2, CFC1 has $200 of accumulated earnings 
and profits and CFC2 has a ($200) deficit in earnings and profits. On 
December 31, year 2, CFC2 distributes all of its assets and liabilities 
to CFC1 in a liquidation to which section 332 applies. From January 1, 
year 3, until December 31, year 4, CFC1 accumulates no additional 
earnings and profits. On December 31, year 4, DC sells its stock in 
CFC1.
    (ii) Result. Pursuant to paragraph (c)(1) of this section, there are 
no earnings and profits attributable to DC's CFC1 stock. This amount 
consists of the sum of the earnings and profits attributable to the CFC1 
stock immediately before the liquidation (100% of the $200 accumulated 
earnings and profits of CFC1 and 100% of CFC2's ($200) deficit in 
earnings and profits) and the amount of earnings and profits accumulated 
after the section 332 liquidation (see also section 1248(c)(2)).
    (d) Effective/applicability dates--(1) General rule. Except as 
provided in paragraph (d)(2) of this section, this section applies to 
income inclusions that occur on or after July 30, 2007.
    (2) Exception. Paragraph (b)(2)(iv) of this section applies to 
restructuring transactions occurring on or after April 18, 2013.

[T.D. 9345, 72 FR 41446, July 30, 2007, as amended by T.D. 9614, 78 FR 
17042, Mar. 19, 2013; T.D. 9803, 81 FR 91030, Dec. 16, 2016]



Sec.  1.1248(f)-1  Certain nonrecognition distributions.

    (a) Scope and purpose. This section and Sec. Sec.  1.1248(f)-2 and 
1.1248(f)-3 provide rules under section 1248(f) that apply when a 
domestic corporation (domestic distributing corporation) distributes 
stock of a foreign corporation (foreign distributed corporation) in a 
distribution to which section 337, 355(c)(1), or 361(c)(1) applies. 
Paragraph (b) of this section provides the general rule that requires 
the domestic distributing corporation, depending on the type of 
distribution, to include in gross income either the section 1248 amount 
or the total section 1248(f) amount. Paragraph (c) of this section 
provides definitions that apply for purposes of this section and 
Sec. Sec.  1.1248(f)-2 and 1.1248(f)-3. Section 1.1248(f)-2 provides 
exceptions to the general rule contained in paragraph (b) of this 
section that apply, depending on the type of distribution. Section 
1.1248(f)-3 provides reasonable cause relief procedures for failures to 
timely comply with certain filing requirements and effective/
applicability dates.
    (b) General rule--(1) Section 337 distribution. This paragraph 
(b)(1) applies if a domestic distributing corporation that is a section 
1248 shareholder of a foreign distributed corporation distributes stock 
of the foreign distributed corporation in a distribution to which 
section 337 applies (section 337 distribution). Except as provided in 
Sec.  1.1248(f)-2(a), the domestic distributing corporation must, 
notwithstanding any other provision of subtitle A of the Internal

[[Page 470]]

Revenue Code (Code), include in gross income as a dividend the section 
1248 amount with respect to the stock of the foreign distributed 
corporation. This paragraph (b)(1) applies only to the extent the 
domestic distributing corporation does not recognize gain with respect 
to the stock of the foreign distributed corporation as a result of the 
section 337 distribution under another provision of subtitle A of the 
Code.
    (2) Existing stock distribution under section 355 or 361. This 
paragraph (b)(2) applies to the extent a domestic distributing 
corporation distributes stock of the foreign distributed corporation 
that is not received in a section 361 exchange that is part of the plan 
of distribution, provided the distribution is described in section 
355(c)(1) or section 361(c)(1) (existing stock distribution). Except as 
provided in Sec.  1.1248(f)-2(b), the domestic distributing corporation 
must, notwithstanding any other provision of subtitle A of the Code, 
include in gross income as a dividend the section 1248 amount with 
respect to the stock of the foreign distributed corporation. This 
paragraph (b)(2) only applies to the extent the domestic distributing 
corporation does not recognize gain with respect to the stock of the 
foreign distributed corporation as a result of the existing stock 
distribution under another provision of subtitle A of the Code.
    (3) New stock distribution under section 361. This paragraph (b)(3) 
applies to the extent a domestic distributing corporation distributes 
stock of the foreign distributed corporation that is received in a 
section 361 exchange that is part of the plan of distribution (and, to 
the extent applicable, also distributes any cash or other property), 
provided the distribution is described in section 361(c)(1) (new stock 
distribution). Except as provided in Sec.  1.1248(f)-2(c), the domestic 
distributing corporation must, notwithstanding any other provision of 
subtitle A of the Code, include in gross income as a dividend the total 
section 1248(f) amount with respect to the stock of each foreign 
corporation transferred in the section 361 exchange. This paragraph 
(b)(3) applies without regard to the amount of gain realized by the 
domestic distributing corporation in the new stock distribution.
    (c) Definitions. Except as otherwise provided, the following 
definitions apply for purposes of this section and Sec. Sec.  1.1248(f)-
2 and 1.1248(f)-3:
    (1) 80-percent distributee is a corporation described in section 
337(c).
    (2) Block of stock has the meaning provided in Sec.  1.1248-2(b).
    (3) Distributee is a shareholder of the domestic distributing 
corporation that receives one or more shares of stock of a foreign 
distributed corporation in an existing stock distribution (as defined in 
paragraph (b)(2) of this section) or a new stock distribution (as 
defined in paragraph (b)(3) of this section).
    (4) Hypothetical section 1248 amount is, with respect to each 
distributee or non-stock distributee, the amount in paragraph (c)(4)(i) 
of this section, reduced by the amount in paragraph (c)(4)(ii) of this 
section computed with respect to the stock of each foreign corporation 
transferred in the section 361 exchange by the domestic distributing 
corporation for which there is not an income inclusion under Sec.  
1.367(b)-4(b)(1)(i).
    (i) The amount that the domestic distributing corporation would have 
included in income as a deemed dividend under Sec.  1.367(b)-4(b)(1)(i) 
if the requirements of Sec.  1.367(b)-4(b)(1)(ii)(A) (involving the 
receipt of foreign stock in an exchange to which Sec.  1.367(a)-7(c) 
applies) had not been satisfied and that would have been attributable to 
such distributee or non-stock distributee under Sec.  1.367(a)-7(e)(4) 
(providing rules to attribute deemed income inclusions under Sec.  
1.367(b)-4 to persons described in Sec.  1.367(a)-3(e)(3)(iii)(A).
    (ii) The amount of gain recognized by the domestic distributing 
corporation under Sec.  1.367(a)-7(c)(2) attributable to such 
distributee or non-stock distributee and allocable to the stock of such 
foreign corporation under Sec.  1.367(a)-7(e)(1), but only to the extent 
such gain is treated as a dividend under section 1248(a).
    (5) Non-stock distributee is a shareholder of the domestic 
distributing corporation that receives cash or other property but no 
shares of stock of the foreign distributed corporation in a new stock 
distribution (as defined in paragraph (b)(3) of this section).

[[Page 471]]

    (6) Postdistribution amount is the section 1248 amount with respect 
to the stock (or a portion of a share of stock) of the foreign 
distributed corporation received by a distributee, computed immediately 
after the distribution, but without taking into account any adjustments 
to the basis of the stock under Sec.  1.1248(f)-2(b)(3) (in the case of 
an existing stock distribution) or adjustments to the basis of stock or 
income inclusions under Sec.  1.1248(f)-2(c)(3) (in the case of a new 
stock distribution). The postdistribution amount in the stock of a 
foreign distributed corporation received in an existing stock 
distribution is determined based on the distributee's holding period in 
the stock as adjusted under Sec.  1.1248(f)-2(b)(2). The 
postdistribution amount in the stock (or a portion of a share of stock, 
as applicable) of a foreign distributed corporation received in a new 
stock distribution is determined after applying the rules in Sec. Sec.  
1.1248-8(b)(2)(iv) and 1.1248(f)-2(c)(2).
    (7) Section 358 basis is the basis in stock as determined under 
section 358.
    (8) Section 361 exchange is an exchange described in section 361(a) 
or (b).
    (9) Section 1248 amount is the net positive earnings and profits (if 
any) attributable to the stock of the foreign distributed corporation, 
determined in accordance with Sec.  1.1248-2 or Sec.  1.1248-3 (taking 
into account Sec.  1.1248-8, if applicable), and that would be included 
in gross income as a dividend under section 1248(a) if the stock were 
sold by the domestic distributing corporation in a transaction in which 
all realized gain is recognized.
    (10) Section 1248(f) amount is the amount in paragraph (c)(10)(i) of 
this section, reduced by the amount in paragraph (c)(10)(ii) of this 
section computed with respect to the stock of each foreign corporation 
transferred in the section 361 exchange by the domestic distributing 
corporation for which the domestic distributing corporation does not 
have an income inclusion under Sec.  1.367(b)-4(b)(1)(i).
    (i) The amount that the domestic distributing corporation would have 
included in income as a dividend under Sec.  1.367(b)-4(b)(1)(i) if the 
requirements of Sec.  1.367(b)-4(b)(1)(ii)(A) (involving the receipt of 
foreign stock in an exchange to which Sec.  1.367(a)-7(c) applies) had 
not been satisfied.
    (ii) The amount of gain recognized by the domestic distributing 
corporation under Sec.  1.367(a)-7(c)(2) and allocable to the stock of 
such foreign corporation under Sec.  1.367(a)-7(e)(1), but only to the 
extent such gain is treated as a dividend under section 1248(a).
    (11) Section 1248(f) block amount is the portion of the section 
1248(f) amount, as defined in paragraph (c)(10) of this section, that 
relates to a block of stock of the foreign corporation if more than a 
single block of stock of the foreign corporation is transferred in the 
section 361 exchange.
    (12) Section 1248 shareholder is a domestic corporation that 
satisfies the ownership requirements of section 1248(a)(2) with respect 
to a foreign corporation, except that a domestic corporation, other than 
a domestic distributing corporation, that is a regulated investment 
company (as defined in section 851(a)), a real estate investment trust 
(as defined in section 856(a)), or an S corporation (as defined in 
section 1361(a)) cannot be a section 1248 shareholder.
    (13) Timely filed return is a U.S. income tax return filed on or 
before the due date set forth in section 6072(b), including any 
extensions of time to file the return granted under section 6081.
    (14) Total section 1248(f) amount is the sum of each section 1248(f) 
amount (as defined in paragraph (c)(10) of this section).

[T.D. 9614, 78 FR 17043, Mar. 19, 2013, as amended by T.D. 9760, 81 FR 
15169, Mar. 22, 2016]



Sec.  1.1248(f)-2  Exceptions for certain distributions and attribution rules.

    (a) Section 337 stock distribution--(1) General exception. In the 
case of a section 337 distribution (as defined in Sec.  1.1248-1(b)(1)), 
Sec.  1.1248(f)-1(b)(1) shall not apply to the distribution of stock of 
the foreign distributed corporation to the 80-percent distributee if the 
conditions of paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this 
section are satisfied.
    (i) 80-percent distributee is a section 1248 shareholder. 
Immediately after the section 337 distribution, the 80-percent 
distributee is a section 1248 shareholder

[[Page 472]]

with respect to the foreign distributed corporation.
    (ii) Holding period. The 80-percent distributee is treated as 
holding the stock of the foreign distributed corporation received in the 
section 337 distribution for the period during which the stock was held 
by the domestic distributing corporation.
    (iii) Basis. The 80-percent distributee's basis in the stock of the 
foreign distributed corporation received in the section 337 distribution 
does not exceed the domestic distributing corporation's basis in such 
stock at the time of the section 337 distribution.
    (2) Elective exception. If the conditions of paragraph (a)(1)(ii) or 
(a)(1)(iii) of this section are not otherwise satisfied, the domestic 
distributing corporation and the 80-percent distributee may elect to 
make adjustments to the 80-percent distributee's holding period or basis 
in the stock of the foreign distributed corporation, as appropriate, 
such that the conditions described in paragraphs (a)(1)(ii) and (iii) of 
this section are satisfied. The conditions and procedures for making the 
election are described in paragraph (a)(3) of this section. See 
paragraphs (a)(4) and (5) of this section for adjustments that are 
required as a result of making the election.
    (3) Election and reporting--(i) Statement required by domestic 
distributing corporation and 80-percent distributee--(A) In general. The 
domestic distributing corporation and the 80-percent distributee make 
the election described in paragraph (a)(2) of this section by each 
including a statement, described in paragraph (a)(3)(i)(B) of this 
section, with a timely filed return for the taxable year during which 
the section 337 distribution occurs, and by entering into a written 
agreement described in paragraph (a)(3)(ii) of this section. If the 
domestic distributing corporation or the 80-percent distributee are 
members of a consolidated group at the time of the section 337 
distribution but not the common parent, the common parent of the 
consolidated group makes the election on behalf of the domestic 
distributing corporation or the 80-percent distributee. The election 
described in paragraph (a)(2) of this section and made pursuant to this 
paragraph (a)(3) is irrevocable.
    (B) Form and content. The statement of election must be entitled, 
``STATEMENT TO ELECT TO APPLY EXCEPTION UNDER Sec.  1.1248(f)-2(a)(2),'' 
state that the domestic distributing corporation and the 80-percent 
distributee have entered into a written agreement described in paragraph 
(a)(3)(ii) of this section, set forth the date of the agreement and the 
names of the parties to the agreement, and the adjustments to the 80-
percent distributee's holding period and/or basis determined under 
section 334 in the stock of the foreign distributed corporation received 
in the section 337 distribution required under paragraphs (a)(4) and 
(a)(5) of this section.
    (ii) Written agreement. The domestic distributing corporation and 
the 80-percent distributee must enter into a written agreement described 
in this paragraph (a)(3)(ii) on or before the due date (including 
extensions) of the domestic distributing corporation's U.S. income tax 
return for the taxable year during which the section 337 distribution 
occurs. Both the domestic distributing corporation and the 80-percent 
distributee must retain the original or a copy of the agreement as part 
of its records in the manner specified by Sec.  1.6001-1(e). Both the 
domestic distributing corporation and the 80-percent distributee must 
provide a copy of the agreement to the Internal Revenue Service within 
30 days of the receipt of a request for the agreement in connection with 
an examination of the taxable year during which the section 337 
distribution occurs. The written agreement must--
    (A) State the document is an agreement under paragraph (a)(3)(ii) of 
this section;
    (B) Provide the name and taxpayer identification number (if any) of 
the domestic distributing corporation, the 80-percent distribute, and 
the foreign distributed corporation;
    (C) With respect to the 80-percent distributee, state the holding 
period in the stock of the foreign distributed corporation received in 
the section 337 distribution as adjusted under paragraph (a)(4) of this 
section; and

[[Page 473]]

    (D) With respect to the 80-percent distributee, identify the basis 
as determined under section 334 of the stock of the foreign distributed 
corporation received in the section 337 distribution and the adjustment 
(if any) to such basis under paragraph (a)(5) of this section.
    (4) Holding period adjustment. For purposes of section 1248, 
immediately after the section 337 distribution, the 80-percent 
distributee's holding period in the stock of the foreign distributed 
corporation received in the section 337 distribution shall equal the 
domestic distributing corporation's holding period in such stock at the 
time of the section 337 distribution.
    (5) Basis adjustments. If the domestic distributing corporation's 
section 1248 amount with respect to the stock of the foreign distributed 
corporation received by the 80-percent distributee in the section 337 
distribution exceeds the 80-percent distributee's postdistribution 
amount with respect to such stock (excess amount), the 80-percent 
distributee's basis as determined under section 334 in such stock shall 
be reduced by the excess amount.
    (b) Existing stock distribution under sections 355 or 361. In the 
case of an existing stock distribution (as defined in Sec.  1.1248(f)-
1(b)(2)), Sec.  1.1248(f)-1(b)(2) shall not apply to the distribution of 
stock of the foreign distributed corporation to a distributee that is a 
section 1248 shareholder with respect to the foreign distributed 
corporation immediately after the distribution if the domestic 
distributing corporation and all distributees that are section 1248 
shareholders elect to apply the provisions of this paragraph (b) in 
accordance with paragraph (b)(1) of this section. See paragraphs (b)(2) 
and (3) of this section for adjustments that may be required if an 
election is made to apply the provisions of this paragraph (b).
    (1) Election and reporting--(i) Statement required by domestic 
distributing corporation and section 1248 shareholders--(A) In general. 
The domestic distributing corporation and all distributees that are 
section 1248 shareholders elect to apply the provisions of paragraph (b) 
of this section by each including a statement, described in paragraph 
(b)(1)(i)(B) of this section, with a timely filed return for the taxable 
year during which the existing stock distribution occurs and by entering 
into a written agreement described in paragraph (b)(1)(ii) of this 
section. If the domestic distributing corporation or a section 1248 
shareholder is a member of a consolidated group but not the common 
parent, the common parent of the consolidated group makes the election 
on behalf of the domestic distributing corporation or section 1248 
shareholder. The election made under this paragraph (b)(1) is 
irrevocable.
    (B) Form and content. The statement of election must be entitled, 
``ELECTION TO APPLY EXCEPTION UNDER Sec.  1.1248(f)-2(b),'' state that 
the domestic distributing corporation and all distributees that are 
section 1248 shareholders have entered into a written agreement 
described in paragraph (b)(1)(ii) of this section, the date of the 
agreement and the names of the parties to the agreement, and set forth 
any required adjustment to each section 1248 shareholder's holding 
period or section 358 basis (if any) in the stock of the foreign 
distributed corporation received in the existing stock distribution 
under paragraph (b)(2) or (b)(3) of this section, respectively.
    (ii) Written agreement. The domestic distributing corporation and 
the section 1248 shareholders must enter into a written agreement 
described in this paragraph (b)(1)(ii) on or before the due date 
(including extensions) of the domestic distributing corporation's U.S. 
income tax return for the taxable year during which the existing stock 
distribution occurs. Each party to the agreement must retain the 
original or a copy of the agreement as part of its records in the manner 
specified by Sec.  1.6001-1(e). Each party to the agreement must provide 
a copy of the agreement to the Internal Revenue Service within 30 days 
of the receipt of a request for the agreement in connection with an 
examination of the taxable year during which the existing stock 
distribution occurs. The written agreement must--
    (A) State the document is an agreement under paragraph (b)(1)(ii) of 
this section;
    (B) Provide the name and taxpayer identification number (if any) of 
the

[[Page 474]]

domestic distributing corporation, the foreign distributed corporation, 
and each section 1248 shareholder;
    (C) With respect to each section 1248 shareholder, state the holding 
period in the stock of the foreign distributed corporation received in 
the existing stock distribution as adjusted under paragraph (b)(2) of 
this section; and
    (D) With respect to each section 1248 shareholder, identify the 
basis under section 358 of the stock of the foreign distributed 
corporation received in the existing stock distribution and the 
adjustment (if any) to the basis under paragraph (b)(3) of this section.
    (2) Holding period adjustments. For purposes of section 1248, 
immediately after the existing stock distribution, each section 1248 
shareholder's holding period in each share of stock of the foreign 
distributed corporation received in the existing stock distribution will 
be equal to the domestic distributing corporation's holding period in 
the share of stock at the time of the existing stock distribution.
    (3) Basis adjustments. If the domestic distributing corporation's 
section 1248 amount with respect to a share of stock of the foreign 
distributed corporation received by a section 1248 shareholder in the 
existing stock distribution exceeds the section 1248 shareholder's 
postdistribution amount with respect to the share of stock (excess 
amount), the section 1248 shareholder's section 358 basis in the share 
of stock is reduced by the excess amount. For an illustration of the 
rule in this paragraph (b)(3), see paragraph (e) of this section, 
Example 1 and Example 3.
    (c) New stock distribution under section 361. In the case of a new 
stock distribution (as defined in Sec.  1.1248(f)-1(b)(3)), the amount 
that the domestic distributing corporation is required to include in 
gross income as a dividend under Sec.  1.1248(f)-1(b)(3) (total section 
1248(f) amount) is reduced by the sum of the portions of any section 
1248(f) amount attributable under paragraph (d) of this section to stock 
of the foreign distributed corporation distributed to distributees that 
are section 1248 shareholders, but only if the domestic distributing 
corporation and all the distributees that are section 1248 shareholders 
elect to apply the provisions of this paragraph (c) in accordance with 
paragraph (c)(1) of this section. See paragraphs (c)(2), (c)(3), and 
(c)(4) of this section for adjustments or income inclusions that are 
required if an election is made to apply the provisions of this 
paragraph (c). The adjustments or income inclusions provided in 
paragraphs (c)(2), (c)(3), and (c)(4) of this section apply after any 
adjustments required under section 367(a)(5) and Sec.  1.367(a)-7(c). 
For illustrations of this exception, see paragraph (e) of this section, 
Example 2 and Example 3 and Sec.  1.367(a)-3(e)(8), Example 3.
    (1) Election and reporting--(i) Statement required by domestic 
distributing corporation and section 1248 shareholders--(A) In general. 
The domestic distributing corporation and all distributees that are 
section 1248 shareholders elect to apply the provisions of paragraph (c) 
of this section by each including a statement, in the form and 
containing the information listed in paragraph (c)(1)(i)(B) of this 
section, with a timely filed return for the taxable year during which 
the new stock distribution occurs and by entering into a written 
agreement described in paragraph (c)(1)(ii) of this section. If the 
domestic distributing corporation or a section 1248 shareholder is a 
member of a consolidated group at the time of the new stock distribution 
but is not the common parent, the common parent of the consolidated 
group makes the election on behalf of the domestic distributing 
corporation or section 1248 shareholder. The election made under this 
paragraph (c)(1) is irrevocable.
    (B) Form and content. The statement of election must be entitled, 
``ELECTION TO APPLY EXCEPTION UNDER Sec.  1.1248(f)-2(c),'' state that 
the domestic distributing corporation and each distributee that is a 
section 1248 shareholder have entered into a written agreement described 
in paragraph (c)(1)(ii) of this section, the date of the agreement and 
the names of the parties to the agreement, and describe, with respect to 
each section 1248 shareholder, the extent to which the shares of stock 
of the foreign distributed corporation received in the new stock 
distribution are divided into portions under paragraph (c)(2) of this 
section,

[[Page 475]]

any adjustments to the section 358 basis of the stock under paragraph 
(c)(3) of this section, and the amount the domestic distributing 
corporation must include in gross income as a dividend under paragraph 
(c)(3) of this section.
    (ii) Written agreement. The domestic distributing corporation and 
all distributees that are section 1248 shareholders must enter into a 
written agreement described in this paragraph (c)(1)(ii) on or before 
the due date (including extensions) of the domestic distributing 
corporation's U.S. income tax return for the taxable year during which 
the new stock distribution occurs. Each party to the agreement must 
retain the original or a copy of the agreement as part of its records in 
the manner specified by Sec.  1.6001-1(e). Each party to the agreement 
must provide a copy of the agreement to the Internal Revenue Service 
within 30 days of the receipt of a request for the agreement in 
connection with an examination of the taxable year during which the new 
stock distribution occurs. The written agreement must--
    (A) State the document is an agreement under paragraph (c)(1)(ii) of 
this section;
    (B) Provide the name and taxpayer identification number (if any) of 
the domestic distributing corporation, the foreign distributed 
corporation, and each section 1248 shareholder;
    (C) With respect to each section 1248 shareholder, describe the 
extent to which the shares of stock of the foreign distributed 
corporation are divided into portions under paragraph (c)(2) of this 
section;
    (D) With respect to each section 1248 shareholder, state the amount 
of earnings and profits attributable to the stock (or each block of 
stock, as applicable) of each foreign corporation transferred in the 
section 361 exchange that is attributable under Sec.  1.1248-8(b)(2)(iv) 
to the stock of the foreign distributed corporation received in the new 
stock distribution;
    (E) With respect to each section 1248 shareholder, state the amount 
of the section 1248(f) amount with respect to the stock (or each block 
of stock, as applicable) of each foreign corporation transferred in the 
section 361 exchange that is attributable under Sec.  1.1248(f)-2(d) to 
the stock of the foreign distributed corporation received in the new 
stock distribution;
    (F) With respect to each section 1248 shareholder, state the amount 
of the adjustment to the section 358 basis of the stock of the foreign 
distributed corporation under paragraph (c)(3) of this section; and
    (G) With respect to each section 1248 shareholder, state the amount 
the domestic distributing corporation must include in gross income as a 
dividend under paragraph (c)(3) of this section.
    (2) Portions. If the domestic distributing corporation transfers 
property, other than a single block of stock of a foreign corporation 
with respect to which the domestic distributing corporation is a section 
1248 shareholder immediately before the section 361 exchange, to the 
foreign distributed corporation in the section 361 exchange that 
precedes the new stock distribution, then each share of stock of the 
foreign distributed corporation received by a distributee that is a 
section 1248 shareholder must be divided into portions as follows:
    (i) One portion attributable to all property transferred in the 
section 361 exchange, other than property that is stock of a foreign 
corporation with respect to which the domestic distributing corporation 
is a section 1248 shareholder immediately before the section 361 
exchange; and
    (ii) One portion attributable to each block of stock of each foreign 
corporation transferred in the section 361 exchange with respect to 
which the domestic distributing corporation is a section 1248 
shareholder immediately before the section 361 exchange. For the 
determination of the earnings and profits attributable to the stock (or 
block of stock, as applicable) of each foreign corporation transferred 
in the section 361 exchange that are attributable to a portion of a 
share of stock of the foreign distributed corporation, see Sec.  1.1248-
8(b)(2)(iv). For the determination of the section 1248(f) amount with 
respect to the stock (or block of stock, as applicable) of each foreign 
corporation transferred in the section 361 exchange that is attributable 
to a

[[Page 476]]

portion of a share of stock of the foreign distributed corporation, see 
paragraph (d)(2) of this section.
    (3) Basis adjustments and income inclusions. If the section 1248(f) 
amount attributable to a portion of a share of stock (or whole share, if 
no division is required) (as determined under paragraph (d) of this 
section) of the foreign distributed corporation received by a 
distributee that is a section 1248 shareholder in the new stock 
distribution exceeds the section 1248 shareholder's postdistribution 
amount in the portion (or whole share, if no division is required) 
(excess amount), then the section 1248 shareholder's section 358 basis 
in the portion as determined under paragraph (c)(4) of this section (or 
whole share, if no division is required), as adjusted under Sec.  
1.367(a)-7(c)(3), is reduced by the excess amount, but not below zero. 
To the extent the excess amount exceeds the section 358 basis in the 
portion (or whole share, if no division is required), the domestic 
distributing corporation must include that portion of the section 
1248(f) amount attributable to the portion of the share (or whole share, 
if no division is required) in gross income as a dividend. For an 
illustration of this rule, see paragraph (e) of this section, Example 2, 
and Sec.  1.367(a)-3(e)(8), Example 3.
    (4) Divided shares of stock--(i) Basis. The basis of a portion of a 
share of stock of the foreign distributed corporation created under 
paragraph (c)(2) of this section is the product of the section 1248 
shareholder's section 358 basis, as adjusted under Sec.  1.367(a)-
7(c)(3), in the share of stock multiplied by the ratio of the basis 
determined under section 362 (taking into account any gain or deemed 
dividends recognized under section 367) of the property (section 362 
basis) to which the portion relates, to the aggregate section 362 basis 
of all property received by the foreign distributed corporation in the 
section 361 exchange. For illustrations of this rule, see paragraph (e) 
of this section, Example 2, and Sec.  1.367(a)-3(e)(8), Example 3.
    (ii) Fair market value. The fair market value of a portion of a 
share of stock of the foreign distributed corporation created under 
paragraph (c)(2) of this section is the product of the fair market value 
of the share of stock multiplied by the ratio of the fair market value 
of the property to which the portion relates to the aggregate fair 
market value of all property received by the foreign distributed 
corporation in the section 361 exchange. For illustrations of this rule, 
see paragraph (e) of this section, Example 2, and Sec.  1.367(a)-
3(e)(8), Example 3.
    (iii) Subsequent exchanges. For purposes of determining the gain 
realized on the sale or exchange of a share of stock of the foreign 
distributed corporation that has divided portions under paragraph (c)(2) 
of this section, the amount realized on the sale or exchange of the 
share will be allocated to each divided portion based on the relative 
fair market value of the property to which the portion relates as 
determined at the time of the reorganization.
    (iv) Duration of divided shares. Shares of stock of the foreign 
distributed corporation that are divided into portions under paragraph 
(c)(2) of this section must be divided so long as section 1248(a) would 
apply to a sale or exchange of the shares.
    (d) Attribution of all or a portion of section 1248(f) amount to 
certain stock of the foreign distributed corporation. This paragraph (d) 
applies if there is a new stock distribution for which an election under 
Sec.  1.1248(f)-2(c)(1) is made. This paragraph (d) provides rules for 
attributing all or a portion, as applicable, of the section 1248(f) 
amount with respect to the stock of each foreign corporation transferred 
in the section 361 exchange by the domestic distributing corporation to 
shares of stock, or to portions of shares of stock, as applicable, 
received in the foreign distributed corporation and distributed to one 
or more distributees that are section 1248 shareholders with respect to 
the foreign distributed corporation. Paragraph (d)(1) of this section 
provides rules to attribute the applicable section 1248(f) amount among 
shares of stock of the foreign distributed corporation received by one 
or more distributees that are section 1248 shareholders. If shares of 
stock are divided into portions under paragraph (c)(2) of this section, 
paragraph (d)(2) of this

[[Page 477]]

section provides additional rules to attribute the applicable section 
1248 amount to portions of shares of stock received by one or more 
distributees that are section 1248 shareholders.
    (1) Attribution of all or a portion of section 1248(f) amount among 
shares of stock. With respect to one or more shares of stock of the 
foreign distributed corporation distributed to a distributee that is a 
section 1248 shareholder, the portion of the section 1248(f) amount with 
respect to the stock of the foreign corporation transferred in the 
section 361 exchange that is equal to the distributee's hypothetical 
section 1248 amount is attributed among those shares of stock of the 
foreign distributed corporation based on the ratio of the value of a 
share distributed to the distributee to the value of all shares of stock 
distributed to the distributee (attributable share amount).
    (2) Attribution of all or a portion of section 1248(f) amount to 
portions of a share of stock--(i) Single block of stock. If a single 
block of stock of the foreign corporation is transferred in the section 
361 exchange, the attributable share amount (as determined under 
paragraph (d)(1) of this section) is attributed to the portion of the 
share that relates to the single block of stock of the foreign 
corporation.
    (ii) Multiple blocks of stock. If multiple blocks of stock of the 
foreign corporation are transferred in the section 361 exchange, the 
attributable share amount (as determined under paragraph (d)(1) of the 
section) is attributed among the portions of the share that relate to 
such multiple blocks of stock of the foreign corporation. The portion of 
the attributable share amount that is attributable to a portion to which 
a block of stock relates is that amount that bears the same ratio that 
the section 1248(f) block amount with respect to that block of stock 
bears to the section 1248(f) amount with respect to the stock of the 
foreign corporation.
    (e) Examples. The rules of this section are illustrated by the 
following examples. See also Sec.  1.367(a)-3(e)(8), Example 3. For 
purposes of the examples, unless otherwise indicated: DP and DC are 
domestic corporations; X is a United States citizen; FP is a foreign 
corporation; CFC1, CFC2, and FA are controlled foreign corporations; 
each corporation has a single class of stock outstanding and uses the 
calendar year as its taxable year; each shareholder of a corporation 
owns a single block of stock in the corporation; DC owns Business A, 
which consists solely of property whose fair market value exceeds its 
basis and could satisfy the requirements of the active foreign trade or 
business exception under section 367(a)(3) and Sec.  1.367(a)-2; DC owns 
no other assets and has no liabilities; the requirements in Sec.  
1.367(a)-7(c)(5) are satisfied; no earnings and profits of a foreign 
corporation are described in section 1248(d); and none of the foreign 
corporations in the examples is a surrogate foreign corporation (within 
the meaning of section 7874) as a result of the transactions described 
in the examples because one or more of the conditions of section 
7874(a)(2)(B) is not satisfied.

    Example 1. Existing stock distribution under section 355(c)(1); gain 
recognition and adjustment to stock basis. (i) Facts. DP, FP, and X own 
80%, 10%, and 10%, respectively, of the outstanding stock of DC. DP's DC 
stock has a $140x basis, $160x fair market value, and a 2-year holding 
period. DC wholly owns CFC1. DC's CFC1 stock has a $50x basis, $100x 
fair market value (therefore a gain of $50x), $25x of earnings and 
profits attributable to it for purposes of section 1248, and a $25x 
section 1248 amount (computed as the lesser of $50x gain in the CFC1 
stock and $25x of section 1248 earnings and profits), and a 3-year 
holding period. On December 31, year 3, DC distributes all of the CFC1 
stock to DP, FP, and X on a pro-rata basis in a distribution to which 
section 355 applies. The fair market value of the CFC1 stock received by 
DP, FP, and X is $80x, $10x, and $10x, respectively. After the 
distribution, DP's stock in DC has a fair market value of $80x and DP's 
section 358 basis in the CFC1 stock is $70x (a pro rata portion, or 50%, 
of DP's $140x basis in the DC stock immediately before the 
distribution). See Sec.  1.358-2(a)(iv).
    (ii) Result. (A) Under Sec.  1.367(e)-1(b)(1), DC must recognize $5x 
gain on the distribution of CFC1 stock to FP (10% of the $50x gain in 
the CFC1 stock). Under Sec.  1.367(b)-5(b)(1)(ii), DC must also 
recognize $5x gain on the distribution of CFC1 stock to X (10% of the 
$50x gain in the CFC1 stock). Of the aggregate $10x gain recognized by 
DC, $5x is recharacterized as a dividend under section 1248(a), computed 
as 20% of the $25x section 1248 amount with respect to the CFC1 stock. 
See Sec.  1.1248-1 for additional consequences.

[[Page 478]]

    (B) DC's distribution of CFC1 stock to DP is described in section 
1248(f)(1) and Sec.  1.1248(f)-1(b)(2) because the distribution is 
pursuant to section 355(c)(1) (an existing stock distribution). As a 
result, the general rule is that DC must include in gross income as a 
dividend the section 1248 amount with respect to the CFC1 stock 
distributed to DP, or $20x (computed as 80% of the $25x section 1248 
amount). However, if DP and DC make the election under paragraph (b)(1) 
of this section, Sec.  1.1248(f)-1(b)(2) will not apply to DC's 
distribution of CFC1 stock to DP. If DP and DC make the election, then:
    (1) Under paragraph (b)(2) of this section, for purposes of section 
1248, immediately after the distribution DP will have a 3-year holding 
period in the CFC1 stock, the same holding period DC had in the CFC1 
stock at the time of the distribution.
    (2) Under paragraph (b)(3) of this section, DP's section 358 basis 
in the CFC1 stock ($70x) is reduced by $10x, the amount by which DC's 
section 1248 amount with respect to the CFC1 stock ($20x) distributed to 
DP exceeds DP's postdistribution amount with respect to the CFC1 stock 
($10x). Under Sec.  1.1248(f)-1(c)(6), DP's postdistribution amount 
equals the amount that DP would include in gross income as a dividend 
under section 1248(a) if DP sold the CFC1 stock immediately after the 
distribution, or $10x, which is computed as the lesser of the $10x gain 
in the CFC1 stock ($80x fair market value, less $70x basis) and $20x of 
section 1248 earnings and profits attributable to the CFC1 stock, taking 
into account DP's 3-year holding period in the stock as required by 
paragraph (b)(2) of this section. As adjusted under paragraph (b)(3) of 
this section, DP's basis in the CFC1 stock is $60x ($70x basis, less 
$10x required basis reduction).
    Example 2. New stock distribution under section 361(c)(1); 
adjustment to stock basis. (i) Facts. DP wholly owns DC. DP's DC stock 
has a $180x basis and $200x fair market value. DC wholly owns CFC1 and 
CFC2. DC's CFC1 stock has a $70x basis, $100x fair market value 
(therefore a gain of $30x), $40x of earnings and profits attributable to 
it for purposes of section 1248, and a section 1248 amount of $30x 
(computed as the lesser of the $30x gain in CFC1 stock and $40x section 
1248 earnings and profits). DC's CFC2 stock has a $130x basis, $100x 
fair market value (therefore a loss of $30x), $80x of earnings and 
profits attributable to it for purposes of section 1248, and a section 
1248 amount of $0x (computed as the lesser of the $0x gain and $80x 
section 1248 earnings and profits). On December 31, Year 1, in a 
reorganization described in section 368(a)(1)(F), DC transfers the CFC1 
stock and the CFC2 stock to FA, a newly formed corporation, in exchange 
for 100 shares of FA stock. DC distributes the 100 shares of FA stock to 
DP. DC's transfer of the CFC1 stock and CFC2 stock to FA in exchange for 
FA stock qualifies as a section 361 exchange, and DC's distribution of 
the 100 shares of FA stock to DP is pursuant to section 361(c)(1). DP 
exchanges its DC stock for the 100 shares of FA stock pursuant to 
section 354. Immediately after the transaction, DP wholly owns FA. DP 
and DC elect to apply the provisions of Sec.  1.367(a)-7(c) in 
accordance with Sec.  1.367(a)-7(c)(5). Pursuant to Sec.  1.367(a)-
3(e)(3)(iii)(A), DP properly files a gain recognition agreement with 
respect to the CFC1 stock that satisfies the conditions of Sec. Sec.  
1.367(a)-3(e)(6) and 1.367(a)-8.
    (ii) Result. (A) DC does not recognize gain under Sec.  1.367(a)-
3(e)(2) with respect to the transfer of the CFC1 stock to FA because the 
three conditions in Sec.  1.367(a)-3(e)(3)(i), (e)(3)(ii), and 
(e)(3)(iii) are satisfied. First, Sec.  1.367(a)-3(e)(3)(i) is satisfied 
because the requirements of Sec.  1.367(a)-7(c) are satisfied, including 
that an election is made to apply Sec.  1.367(a)-7(c). Second, the 
requirements under Sec.  1.367(a)-3(e)(3)(ii) related to transfers of 
domestic stock are not applicable because CFC1 is a foreign corporation. 
Third, because DC owns all the stock of FA immediately after DC's 
receipt of the FA stock in the section 361 exchange but prior to, and 
without taking into account, DC's distribution of the FA stock to DP, 
for purposes of satisfying the requirements of Sec.  1.367(a)-
3(e)(3)(iii), DP properly files a gain recognition agreement with 
respect to the CFC1 stock that satisfies the conditions of Sec. Sec.  
1.367(a)-3(e)(6) and 1.367(a)-8. Furthermore, DC is not required to 
recognize gain under Sec.  1.367(a)-7(c)(2)(ii), and DP is not required 
to reduce its $180x section 358 basis in the FA stock under Sec.  
1.367(a)-7(c)(3), because the inside gain (within the meaning of Sec.  
1.367(a)-7(f)(5)) is $0x ($200x aggregate fair market value of CFC1 
stock and CFC2 stock, less $200x aggregate basis of CFC1 stock and CFC2 
stock). In addition, DC is not required to include in income as a deemed 
dividend the $30x section 1248 amount with respect to the CFC1 stock 
under Sec.  1.367(b)-4(b)(1)(i) because immediately after DC's receipt 
of the FA stock in the section 361 exchange but prior to, and without 
taking into account, DC's distribution of the FA stock to DP, CFC1 and 
FA are controlled foreign corporations as to which DC is a section 1248 
shareholder. See Sec.  1.367(b)-4(b)(1)(ii)(A). With respect to the 
transfer of the CFC2 stock to FA, DC's section 1248 amount with respect 
to the CFC2 stock is $0x; therefore, Sec.  1.367(b)-4(b)(1)(i) has no 
application.
    (B) Under Sec.  1.1248(f)-1(b)(3), as a result of the section 
361(c)(1) distribution of the FA stock to DP (a new stock distribution), 
the general rule is that DC must include in gross income as a dividend 
the total section 1248(f) amount (defined in Sec.  1.1248(f)-1(c)(14)). 
The total section 1248(f) amount is $30x, the sum of the section 1248(f) 
amount (defined in Sec.  1.1248(f)-1(c)(10)) with respect to the CFC1

[[Page 479]]

stock ($30x) and CFC2 stock ($0x). The section 1248(f) amount with 
respect to the CFC1 stock is the amount that DC would have included in 
income as a deemed dividend under Sec.  1.367(b)-4(b)(1)(i) with respect 
to the CFC1 stock if the requirements under Sec.  1.367(b)-
4(b)(1)(ii)(A) had not been satisfied ($30x), less the amount of gain 
recognized by DC under Sec.  1.367(a)-7(c)(2) that is allocable to the 
CFC1 stock under Sec.  1.367(a)-7(e)(1) and treated as a dividend under 
section 1248(a) ($0x). Similarly, the section 1248(f) amount with 
respect to the CFC2 stock is the amount that DC would have included in 
income as a deemed dividend under Sec.  1.367(b)-4(b)(1)(i) with respect 
to the CFC2 stock if the requirements under Sec.  1.367(b)-
4(b)(1)(ii)(A) had not been satisfied ($0x), less the amount of gain 
recognized by DC under Sec.  1.367(a)-7(c)(2) that is allocable to the 
CFC2 stock under Sec.  1.367(a)-7(e)(1) and treated as a dividend under 
section 1248(a) ($0x).
    (C) If, however, DP and DC make the election provided in paragraph 
(c)(1) of this section, the amount that DC is required to include in 
gross income as a dividend under Sec.  1.1248(f)-1(b)(3) (the total 
section 1248(f) amount of $30x) is reduced to the extent the section 
1248(f) amount with respect to the CFC1 stock ($30x) and CFC2 stock 
($0x) is attributable under paragraph (d) of this section to the shares 
of FA stock distributed to one or more distributees that are section 
1248 shareholders of FA. The only distributee is DP, and DP is a section 
1248 shareholder with respect to FA. If DP and DC elect to apply 
paragraph (c) of this section, then:
    (1) Under paragraph (d)(1) of this section, the portion of the 
section 1248(f) amount with respect to the CFC1 stock that is attributed 
to the shares of FA stock distributed to DP is equal to DP's 
hypothetical section 1248 amount (as defined in Sec.  1.1248(f)-1(c)(4)) 
with respect to the CFC1 stock. Because DP is the only shareholder of 
DC, DP's hypothetical section 1248 amount equals the section 1248(f) 
amount with respect to the CFC1 stock ($30x). The $30x hypothetical 
section 1248 amount is attributed pro rata (based on relative values) 
among the 100 shares of FA stock distributed to DP, and the attributable 
share amount (as defined in paragraph (d)(1) of this section) is $.30x. 
Paragraph (d)(1) of this section has no application with respect to the 
CFC2 stock because there is no section 1248(f) amount with respect to 
the CFC2 stock.
    (2) If the shares of FA stock are divided into portions, the rules 
of paragraph (d)(2) of this section apply to attribute the attributable 
share amount ($.30x) to portions of shares of FA stock distributed to 
DP. Under paragraph (c)(2)(ii) of this section, the 100 shares of FA 
stock are divided into two portions, one portion related to the single 
block of CFC1 stock and one portion related to the single block of CFC2 
stock. Under paragraph (d)(2)(i) of this section, the attributable share 
amount of $.30x is attributed to the portion of the 100 shares of FA 
stock that relates to the single block of CFC1 stock. Thus, all of the 
$30x section 1248(f) amount with respect to the CFC1 stock is 
attributable to the 100 shares of FA stock.
    (3) Because the election under paragraph (c)(1) of this section is 
made, the total section 1248(f) amount ($30x) that DC is otherwise 
required to include in gross income as a dividend under Sec.  1.1248(f)-
1(b)(3) is reduced by $30x, the portion of the section 1248(f) amount 
with respect to the CFC1 stock that is attributable under paragraph (d) 
of this section to the shares of FA stock distributed to DP. Thus, the 
amount DC is required to include in gross income as a dividend under 
Sec.  1.1248(f)-1(b)(3) is $0x ($30x less $30x).
    (4) Under paragraph (c)(4)(i) of this section, the basis of each 
portion is the product of DP's section 358 basis in the share of FA 
stock multiplied by the ratio of the section 362 basis of the property 
(CFC1 stock or CFC2 stock, as applicable) to which the portion relates, 
to the aggregate section 362 basis of all property (CFC1 stock and CFC2 
stock) received by FA in the section 361 exchange. Under paragraph 
(c)(4)(ii) of this section, the fair market value of each portion is the 
product of the fair market value of the share of FA stock multiplied by 
the ratio of the fair market value of the property (CFC1 stock or CFC2 
stock, as applicable) to which the portion relates, to the aggregate 
fair market value of all property (CFC1 stock and CFC2 stock) received 
by FA in the section 361 exchange. The section 362 basis of the CFC1 
stock and CFC2 stock is $70x and $130x, respectively, for a total 
section 362 basis of $200x. The CFC1 stock and CFC2 stock each has a 
fair market value of $100x, for a total fair market value of $200x. 
Therefore, the portions attributable to the CFC1 stock have an aggregate 
basis of $63x ($180x multiplied by $70x/$200x) and fair market value of 
$100x ($200x multiplied by $100x/$200x), resulting in aggregate gain in 
such portions of $37x (or $.37x per portion in each of the 100 shares). 
The portions attributable to the CFC2 stock have an aggregate basis of 
$117x ($180x multiplied by $130x/$200x) and fair market value of $100x 
($200x multiplied by $100x/$200x), resulting in aggregate losses in such 
portions of $17x (or $.17x per portion in each of the 100 shares).
    (5) Under Sec.  1.1248-8(b)(2)(iv), the $40x earnings and profits 
attributable to the single block of CFC1 stock are attributed to the 
portions of the 100 shares of FA stock that relate to the CFC1 stock. 
Similarly, the $80x of earnings and profits attributable to the single 
block of CFC2 stock are attributed to the portions of the 100 shares of 
the FA stock that relate to the CFC2 stock. Thus, DP's postdistribution 
amount (defined in Sec.  1.1248(f)-1(c)(6)) with respect to the portions

[[Page 480]]

of the shares of FA attributable to the CFC1 stock is $37x, the lesser 
of the aggregate gain in the portions attributable to the CFC1 stock of 
$37x (computed in paragraph (ii)(C)(4) of this Example 2) and the $40x 
earnings and profits attributable to such portions. Furthermore, DP's 
postdistribution amount with respect to the portions of the shares of FA 
attributable to the CFC2 stock is $0x, the lesser of the aggregate gain 
in the portions attributable to the CFC2 stock of $0x (computed in 
paragraph (ii)(C)(4) of this Example 2 to be an aggregate loss of $17x) 
and the $80x earnings and profits attributable to such portions.
    (6) Under paragraph (c)(3) of this section, DP's section 358 basis 
in the portions of the 100 shares of FA stock attributable to the CFC1 
stock ($63x, computed in paragraph (ii)(C)(4) of this Example 2) is 
reduced by the amount (if any) by which the section 1248(f) amount 
attributable to such portions under paragraph (d) of this section ($30x, 
as computed in paragraph (ii)(C)(2) of this Example 2) exceeds DP's 
postdistribution amount with respect to such portions ($37x, computed in 
paragraph (ii)(C)(5) of this Example 2). Thus, there is no basis 
reduction in the portions of the 100 shares of FA stock attributable to 
the CFC1 stock. DP's section 358 basis in the portions of the 100 shares 
of FA stock attributable to the CFC2 stock is not reduced because the 
section 1248(f) amount attributable to such portions under paragraph (d) 
of this section is $0x (computed in paragraph (ii)(C)(2) of this Example 
2), which equals DP's postdistribution amount with respect to such 
portions of $0x (as computed in paragraph (ii)(C)(5) of this Example 2).
    Example 3. Combined existing stock distribution and new stock 
distribution under sections 355(c)(1) and 361(c)(1). (i) Facts. DP owns 
all 100 outstanding shares of stock of DC. DP's DC stock has a $180x 
basis (each of the 100 shares having a basis of $18), $200x fair market 
value, and 2-year holding period. DC owns all 60 shares of the 
outstanding stock of CFC1; all such shares constitute a single block of 
stock. DC's CFC1 stock has a $50x basis, $60x fair market value, $30x of 
earnings and profits attributable to it for purposes of section 1248, a 
$10x section 1248 amount (computed as the lesser of $10x gain and $30x 
of section 1248 earnings and profits), and a 3-year holding period. DC 
also owns all 40 shares of the outstanding stock of CFC2; all such 
shares constitute a single block of stock. DC's CFC2 stock has a $30x 
basis, $40x fair market value, $20x of earnings and profits attributable 
to it for purposes of section 1248, and a $10x section 1248 amount 
(computed as the lesser of $10x gain and $20x of section 1248 earnings 
and profits). DC also owns Business A, which has a fair market value of 
$100x. On December 31, year 4, in a divisive reorganization described in 
section 368(a)(1)(D), DC transfers the CFC2 stock to CFC1 in exchange 
for 40 shares of newly issued CFC1 stock. DC's transfer of the CFC2 
stock to CFC1 qualifies as a section 361 exchange. DC then distributes 
the 100 shares of CFC1 stock (60 shares held prior to the transaction 
and 40 shares received in the section 361 exchange) to DP in a 
transaction that qualifies under section 355. DP properly files a gain 
recognition agreement with respect to the CFC2 stock that satisfies the 
conditions of Sec. Sec.  1.367(a)-3(e)(6) and 1.367(a)-8. DP and DC 
properly make the elections provided in Sec.  1.367(a)-7(c)(5) and 
paragraphs (b) and (c) of this section.
    (ii) Result. (A) DC does not recognize gain under Sec.  1.367(a)-
3(e)(2) with respect to the transfer of the CFC2 stock to CFC1 because 
the three conditions in Sec.  1.367(a)-3(e)(3)(i), (e)(3)(ii), and 
(e)(3)(iii) are satisfied. First, Sec.  1.367(a)-3(e)(3)(i) is satisfied 
because the requirements of Sec.  1.367(a)-7(c) are satisfied, including 
that an election is made to apply Sec.  1.367(a)-7(c). Second, the 
requirements under Sec.  1.367(a)-3(e)(3)(ii) related to transfers of 
domestic stock are not applicable because CFC2 is a foreign corporation. 
Third, because DC and DP own all the stock of CFC1 for purposes of 
satisfying the requirements of Sec.  1.367(a)-3(e)(3)(iii), DP properly 
files a gain recognition agreement with respect to the CFC2 stock that 
satisfies the conditions of Sec. Sec.  1.367(a)-3(e)(6) and 1.367(a)-8. 
See paragraph (ii)(G) of this example for the computation of the amount 
of gain subject to the gain recognition agreement. In addition, DC is 
not required to include in income as a dividend the $10x section 1248 
amount with respect to the CFC2 stock under Sec.  1.367(b)-4(b)(1)(i) 
because immediately after DC's receipt of the CFC1 stock in the section 
361 exchange but prior to, and without taking into account, DC's 
distribution of the CFC1 stock to DP, CFC1 and CFC2 are controlled 
foreign corporations as to which DC is a section 1248 shareholder. See 
Sec.  1.367(b)-4(b)(1)(ii)(A).
    (B) DC is not required to recognize gain under Sec.  1.367(a)-
7(c)(2)(i) because DP, a control group member (as defined in Sec.  
1.367(a)-7(f)(1)), owns 100% of DC. DC is not required to recognize gain 
under Sec.  1.367(a)-7(c)(2)(ii) because the amount described in Sec.  
1.367(a)-7(c)(2)(ii)(A) ($10x) does not exceed the amount described in 
Sec.  1.367(a)-7(c)(2)(ii)(B) ($40x). The $10x described in Sec.  
1.367(a)-7(c)(2)(ii)(A) equals the product of the inside gain (as 
defined in Sec.  1.367(a)-7(f)) ($10x) multiplied by DP's ownership 
interest percentage (as defined in Sec.  1.367(a)-7(f)) (100%), reduced 
by the sum of the amounts in Sec.  1.367(a)-7(c)(2)(ii)(A)(1), 
(c)(2)(ii)(A)(2), and (c)(2)(ii)(A)(3) ($0x). Under Sec.  1.367(a)-
7(f)(5), the $10x of inside gain is the amount by which the aggregate 
fair market value of the section 367(a) property (CFC2 stock with a fair 
market value of $40x) exceeds the sum of the inside basis ($30x) of such 
property, and

[[Page 481]]

$0x (the product of the section 367(a) percentage (100%) multiplied by 
DC's deductible liabilities assumed by CFC1 ($0x)). Under Sec.  
1.367(a)-7(f)(4), the $30x inside basis equals the aggregate basis of 
the section 367(a) property transferred in the section 361 exchange 
($30x), increased by any gain or deemed dividends recognized by DC with 
respect to the section 367(a) property under section 367 ($0x). The $40x 
described in Sec.  1.367(a)-7(c)(2)(ii)(B) is the product of the section 
367(a) percentage (100%) multiplied by the fair market value of the 40 
shares of CFC1 stock received by DC in the section 361 exchange and 
distributed to DP ($40x).
    (C) Under section 358, DP must allocate the $180x basis in its 100 
shares of DC stock between the 100 shares of DC stock (fair market value 
of $100x) and the 100 shares of CFC1 stock (fair market value of $100x) 
held after the distribution based on the relative fair market values of 
the shares. Accordingly, after the allocation of the basis under section 
358, but prior to the application of Sec.  1.367(a)-7(c)(3), the basis 
of DP's DC stock is $90x and the basis of DP's CFC1 stock is $90x. With 
respect to the $90x basis in the 100 shares of CFC1 stock, $36x is 
attributable to the 40 shares of CFC1 stock received by DC in the 
section 361 exchange ($90x multiplied by 40/100), and $54x is 
attributable to the 60 shares of CFC1 stock owned by DC prior to the 
section 361 exchange ($90x multiplied by 60/100). See Sec.  1.358-
2(a)(2)(iv).
    (D) Pursuant to Sec.  1.367(a)-7(c)(3)(ii), any adjustment to DP's 
basis in the CFC1 stock required under Sec.  1.367(a)-7(c)(3)(i) can 
only be made with respect to the 40 shares of CFC1 stock received by DC 
in the section 361 exchange. Under Sec.  1.367(a)-7(c)(3)(i)(A), DP must 
reduce its section 358 basis ($36x) in the 40 shares of CFC1 stock by 
$6x, the amount by which DP's attributable inside gain ($10x), reduced 
by the sum of the amounts in Sec.  1.367(a)-7(c)(2)(ii)(A)(1), 
(c)(2)(ii)(A)(2), and (c)(2)(ii)(A)(3) ($0x) (as computed in paragraph 
(ii)(B) of this Example 3) exceeds DP's outside gain (as defined in 
Sec.  1.367(a)-7(f)) ($4x). DP's $4x outside gain equals the product of 
the section 367(a) percentage (as defined in Sec.  1.367(a)-7(f)) (100%) 
multiplied by the amount by which the fair market value ($40x) of the 40 
shares of CFC1 stock is greater than DP's section 358 basis in the stock 
($36x). After the $6x reduction to stock basis required under Sec.  
1.367(a)-7(c)(3), but before the application of Sec.  1.1248(f)-2(c)(3), 
DP's basis in the 40 shares of CFC1 stock is $30x.
    (E) DC's distribution of the 40 shares of newly issued CFC1 stock is 
subject to Sec.  1.1248(f)-1(b)(3) (a new stock distribution). Except as 
provided in Sec.  1.1248(f)-2(c), under Sec.  1.1248(f)-1(b)(3) DC must 
include in gross income as a dividend the total section 1248(f) amount 
(as defined in Sec.  1.1248(f)-1(c)(14)). The total section 1248(f) 
amount is $10x, the sum of the section 1248(f) amount (as defined in 
Sec.  1.1248(f)-1(c)(10)) with respect to the stock of each foreign 
corporation transferred in the section 361 exchange. Only the CFC2 stock 
is transferred in the section 361 exchange; therefore, the total section 
1248(f) amount is equal to the section 1248(f) amount with respect to 
the CFC2 stock ($10x). The $10x section 1248(f) amount with respect to 
the CFC2 stock is the amount that DC would have included in income as a 
deemed dividend under Sec.  1.367(b)-4(b)(1)(i) with respect to the CFC2 
stock if the requirements of Sec.  1.367(b)-4(b)(1)(ii)(A) had not been 
satisfied ($10x), reduced by the amount of gain recognized by DC under 
Sec.  1.367(a)-7(c)(2) allocable to the CFC2 stock and treated as a 
dividend under section 1248(a) (in this case, $0x, as described in 
paragraph (ii)(B) of this Example 3).
    (F) However, because DC and DP (a section 1248 shareholder of CFC1 
immediately after the distribution) elect to apply the provisions of 
Sec.  1.1248(f)-2(c) (as provided in Sec.  1.1248(f)-2(c)(1)), the 
amount that DC is required to include in income as a dividend under 
Sec.  1.1248(f)-1(b)(3) ($10x total section 1248(f) amount as computed 
in paragraph (ii)(E) of this Example 3) is reduced by the sum of the 
portions of the section 1248(f) amount with respect to the CFC2 stock 
that is attributable (under the rules of Sec.  1.1248(f)-2(d)) to the 40 
shares of CFC1 stock distributed to DP. As stated in the facts, the 
election is made to apply Sec.  1.1248(f)-2(c).
    (1) Under paragraph (d)(1) of this section, the portion of the 
section 1248(f) amount with respect to the CFC2 stock that is attributed 
to the 40 shares of CFC1 stock distributed to DP is equal to DP's 
hypothetical section 1248 amount (as defined in Sec.  1.1248(f)-1(c)(4)) 
with respect to the CFC2 stock. Because DP is the only shareholder of 
DC, DP's hypothetical section 1248 amount equals the section 1248(f) 
amount with respect to the CFC2 stock ($10x). The $10x hypothetical 
section 1248 amount is attributed pro rata (based on relative values) 
among the 40 shares of CFC1 stock distributed to DP, and the 
attributable share amount (as defined in paragraph (d)(1) of this 
section) is $.25x.
    (2) The 40 shares of CFC1 stock are not divided into portions under 
paragraph (c)(2) of this section because the only property transferred 
by DC to CFC1 is a single block of stock of CFC2. If the 40 shares of 
CFC1 stock were required to be divided into portions, however, the rules 
of paragraph (d)(2) of this section apply to attribute the attributable 
share amount ($.25x) to portions of shares of CFC1 stock distributed to 
DP.
    (3) Because the election under paragraph (c)(1) of this section is 
made, the total section 1248(f) amount ($10x) that DC is otherwise 
required to include in gross income as a dividend under Sec.  1.1248(f)-
1(b)(3) is reduced by $10x, the portion of the section 1248(f) amount 
with respect to the CFC2 stock that

[[Page 482]]

is attributable under paragraph (d) of this section to the 40 shares of 
CFC1 stock distributed to DP. Thus, the amount DC is required to include 
in gross income as a dividend under Sec.  1.1248(f)-1(b)(3) is $0x ($30x 
less $30x).
    (4) Under Sec.  1.1248-8(b)(2)(iv), the $20x earnings and profits 
attributable to the single block of CFC2 stock are attributed pro rata 
to the 40 shares of CFC1 stock. Thus, DP's postdistribution amount 
(defined in Sec.  1.1248(f)-1(c)(6)) with respect to the 40 shares of 
CFC1 stock attributable to the CFC2 stock is $10x, the lesser of the 
aggregate gain in the 40 shares of CFC1 stock of $10x ($40x fair market 
value, less $30x section 358 basis, as described in paragraph (ii)(D) of 
this Example 3) and the $20x earnings and profits attributable to such 
shares.
    (5) Under paragraph (c)(3) of this section, DP's section 358 basis 
in the 40 shares of CFC1 stock ($30x) is reduced by the amount (if any) 
by which the section 1248(f) amount attributable to such shares under 
paragraph (d) of this section ($10x, as computed in paragraph (ii)(E) of 
this Example 3) exceeds DP's postdistribution amount with respect to 
such shares ($10x). Thus, there is no basis reduction in the 40 shares 
of CFC1 stock.
    (G) Pursuant Sec.  1.367(a)-3(e)(6), the amount of gain subject to 
the gain recognition agreement entered into by DP with respect to the 
CFC2 stock is $10x, which is the product of DP's ownership interest 
percentage (100%) multiplied by the gain realized by DC in the 361 
exchange prior to taking into account the application of any other 
provision of section 367 ($10x), reduced by the sum of the amounts 
described in Sec.  1.367(a)-3(e)(6)(i)(A), (e)(6)(i)(B), (e)(6)(i)(C), 
and (e)(6)(i)(D) ($0x).
    (H) DC's distribution of the 60 shares of CFC1 stock it held before 
the section 361 exchange is subject to Sec.  1.1248(f)-1(b)(2) (an 
existing stock distribution); however, because DC and DP make the 
election provided in paragraph (b)(1) of this section, Sec.  1.1248(f)-
1(b)(2) does not apply to the distribution.
    (1) Under paragraph (b)(2) of this section, for purposes of section 
1248, DP will have a 3-year holding period in the 60 shares of CFC1 
stock received, the same holding period that DC had in the 60 shares of 
CFC1 stock.
    (2) Under paragraph (b)(3) of this section, DP's section 358 basis 
in the 60 shares of CFC1 stock received ($54x, as computed in paragraph 
(ii)(C) of this Example 3) is reduced by $4x, the amount by which DC's 
section 1248 amount ($10x) with respect to the 60 shares of CFC1 stock 
exceeds DP's postdistribution amount ($6x) with respect to the 60 shares 
of CFC1 stock. Under Sec.  1.1248(f)-1(c)(6), DP's postdistribution 
amount with respect to the 60 shares of CFC1 stock equals the amount 
that DP would include in gross income as a dividend under section 
1248(a) if DP sold the 60 shares of CFC1 stock immediately after the 
distribution, or $6x, which is computed as the lesser of the $6x gain in 
the such shares of CFC1 stock ($60x fair market value, less $54x basis) 
and $30x of section 1248 earnings and profits attributable to the CFC1 
stock, taking into account DP's 3-year holding period in the stock as 
required by paragraph (b)(2) of this section. As adjusted under 
paragraph (b)(3) of this section, DP's basis in the 60 shares of CFC1 
stock is $50x ($54x basis, less $4x basis reduction).

    (f) Applicable cross-references. For rules relating to the 
attribution of earnings and profits to the stock of a foreign 
corporation following certain nonrecognition transactions, see Sec.  
1.1248-8. For rules relating to a transfer of property by a domestic 
corporation to a foreign corporation in a section 361 exchange that 
precedes a new stock distribution, see Sec.  1.367(a)-7. If the property 
transferred includes stock of a corporation, see also Sec. Sec.  
1.367(a)-3(e) and 1.367(b)-4. For other rules that may apply if a 
domestic corporation distributes the stock of a foreign corporation in a 
new stock distribution or an existing stock distribution satisfying the 
requirements of section 355, see Sec. Sec.  1.367(b)-5(b)(1) and 
1.367(e)-1.

[T.D. 9614, 78 FR 17044, Mar. 19, 2013, as amended by T.D. 9760, 81 FR 
15169, Mar. 22, 2016; T.D. 9803, 81 FR 91031, Dec. 16, 2016]



Sec.  1.1248(f)-3  Reasonable cause and effective/applicability dates.

    (a) Reasonable cause for failure to comply--(1) Request for relief. 
If an 80-percent distributee, a distributee that is a section 1248 
shareholder, or the domestic distributing corporation (reporting person) 
fails to timely comply with any requirement under Sec.  1.1248(f)-2, the 
failure shall be deemed not to have occurred if the reporting person is 
able to demonstrate that the failure was due to reasonable cause and not 
willful neglect using the procedure set forth in paragraph (a)(2) of 
this section. Whether the failure to timely comply was due to reasonable 
cause and not willful neglect will be determined by the Director of 
Field Operations, Cross Border Activities Practice Area of Large 
Business & International (Director) based on all the facts and 
circumstances.
    (2) Procedures for establishing that a failure to timely comply was 
due to reasonable cause and not willful neglect--(i) Time of submission. 
A reporting person's

[[Page 483]]

statement that the failure to timely comply was due to reasonable cause 
and not willful neglect will be considered only if, promptly after the 
reporting person becomes aware of the failure, an amended return is 
filed for the taxable year to which the failure relates that includes 
the information that should have been included with the original return 
for such taxable year or that otherwise complies with the rules of this 
section, and that includes a written statement explaining the reasons 
for the failure to timely comply.
    (ii) Notice requirement. In addition to the requirements of 
paragraph (a)(2)(i) of this section, the reporting person must comply 
with the notice requirements of this paragraph (a)(2)(ii). If any 
taxable year of the reporting person is under examination when the 
amended return is filed, a copy of the amended return and any 
information required to be included with such return must be delivered 
to the Internal Revenue Service personnel conducting the examination. If 
no taxable year of the reporting person is under examination when the 
amended return is filed, a copy of the amended return and any 
information required to be included with such return must be delivered 
to the Director.
    (b) Effective/applicability date--(1) General rule. Except as 
provided in paragraph (b)(2)(ii) of this section, Sec. Sec.  1.1248(f)-1 
and 1.1248(f)-2 apply to distributions occurring on or after April 18, 
2013. The provisions of Sec.  1.1248(f)-3(a) apply to distributions 
occurring on or after April 17, 2013.
    (2) Transactions described in Notice 87-64--(i) Gain not otherwise 
recognized. For distributions occurring on or after September 21, 1987, 
and before April 18, 2013, section 1248(f)(1) shall not apply to the 
extent the domestic distributing corporation recognizes gain with 
respect to the stock of the foreign distributed corporation as a result 
of the distribution under another provision of subtitle A of the 
Internal Revenue Code.
    (ii) Section 355 distributions. Taxpayers may apply the provisions 
of Sec.  1.1248(f)-2(b) to distributions occurring on or after September 
21, 1987.

[T.D. 9614, 78 FR 17050, Mar. 19, 2013, as amended by T.D. 9760, 81 FR 
15169, Mar. 22, 2016]



Sec.  1.1249-1  Gain from certain sales or exchanges of patents, etc., 
to foreign corporations.

    (a) General rule. Section 1249 provides that if gain is recognized 
from the sale or exchange after December 31, 1962, of a patent, an 
invention, model, or design (whether or not patented), a copyright, a 
secret formula or process, or any other similar property right (not 
including property such as goodwill, a trademark, or a trade brand) to 
any foreign corporation by any United States person (as defined in 
section 7701(a)(30)) which controls such foreign corporation, and if 
such gain would (but for the provisions of section 1249) be gain from 
the sale or exchange of a capital asset or of property described in 
section 1231, then such gain shall be considered as gain from the sale 
or exchange of property which is neither a capital asset nor property 
described in section 1231. Section 1249 applies only to gain recognized 
in taxable years beginning after December 31, 1962.
    (b) Control. For purposes of paragraph (a) of this section, the term 
control means, with respect to any foreign corporation, the ownership, 
directly or indirectly, of stock possessing more than 50 percent of the 
total combined voting power of all classes of stock entitled to vote. 
For purposes of the preceding sentence, the rules for determining 
ownership of stock provided by section 958 (a) and (b), and the 
principles for determining percentage of total combined voting power 
owned by United States shareholders provided by paragraphs (b) and (c) 
of Sec.  1.957-1, shall apply.

[T.D. 6765, 29 FR 14879, Nov. 3, 1964]



Sec.  1.1250-1  Gain from dispositions of certain depreciable realty.

    (a) Dispositions after December 31, 1969--(1) Ordinary income. (i) 
In general, section 1250(a)(1) provides that, upon a disposition of an 
item of section 1250 property after December 31, 1969, the applicable 
percentage of the lower of:

[[Page 484]]

    (a) The additional depreciation (as defined in Sec.  1.1250-2) 
attributable to periods after December 31, 1969 in respect of the 
property, or
    (b) The excess of the amount realized on a sale, exchange, or 
involuntary conversion (or the fair market value of the property on any 
other disposition) over the adjusted basis of the property,

Shall be treated as gain from the sale or exchange of property which is 
neither a capital asset nor property described in section 1231 (that is, 
shall be recognized as ordinary income). The amount of such gain shall 
be determined separately for each item (see subparagraph (2)(ii) of this 
paragraph) of section 1250 property. If the amount determined under (b) 
of this subdivision exceeds the amount determined under (a) of this 
subdivision, then such excess shall be treated as provided in 
subdivision (ii) of this subparagraph. For relation of section 1250 to 
other provisions, see paragraph (c) of this section.
    (ii) If the amount determined under subdivision (i)(b) of this 
subparagraph exceeds the amount determined under subdivision (i)(a) of 
this subparagraph, then the applicable percentage of the lower of:
    (a) The additional depreciation attributable to periods before 
January 1, 1970, or
    (b) Such excess,

shall also be recognized as ordinary income.
    (iii) If gain would be recognized upon a disposition of an item of 
section 1250 property under subdivisions (i) and (ii) of this 
subparagraph, and if section 1250(d) applies, then the gain recognized 
shall be considered as recognized first under subdivision (i) of this 
subparagraph. (See example (3)(i) of paragraph (c)(4) of Sec.  1.1250-
3.)
    (2) Meaning of terms. (i) For purposes of section 1250, the term 
disposition shall have the same meaning as in paragraph (a)(3) of Sec.  
1.1245-1. Section 1250 property is, in general, depreciable real 
property other than section 1245 property. See paragraph (e) of this 
section. See paragraph (d)(1) of this section for meaning of the term 
applicable percentage. If, however, the property is considered to have 
two or more elements with separate periods (for example, because units 
thereof are placed in service on different dates, improvements are made 
to the property, or because of the application of paragraph (h) of Sec.  
1.1250-3), see the special rules of Sec.  1.1250-5.
    (ii) For purposes of applying section 1250, the facts and 
circumstances of each disposition shall be considered in determining 
what is the appropriate item of section 1250 property. In general, a 
building is an item of section 1250 property, but in an appropriate case 
more than one building may be treated as a single item. For example, if 
two or more buildings or structures on a single tract or parcel (or 
contiguous tracts or parcels) of land are operated as an integrated unit 
(as evidenced by their actual operation, management, financing, and 
accounting), they may be treated as a single item of section 1250 
property. For the manner of determining whether an expenditure shall be 
treated as an addition to capital account of an item of section 1250 
property or as a separate item of section 1250 property, see paragraph 
(d)(2)(iii) of Sec.  1.1250-5.
    (3) Sale, exchange, or involuntary conversion after December 31, 
1969. (i) In the case of a disposition of section 1250 property by a 
sale, exchange, or involuntary conversion after December 31, 1969, the 
gain to which section 1250(a)(1) applies is the applicable percentage 
for the property (determined under paragraph (d)(1) of this section) 
multiplied by the lower of (a) the additional depreciation in respect of 
the property attributable to periods after December 31, 1969, or (b) the 
excess (referred to as gain realized) of the amount realized over the 
adjusted basis of the property.
    (ii) In addition to gain recognized under section 1250(a)(1) and 
subdivision (i) of this subparagraph, gain may also be recognized under 
section 1250(a)(2) and this subdivision if the gain realized exceeds the 
additional depreciation attributable to periods after December 31, 1969. 
In such a case, the amount of gain recognized under section 1250(a)(2) 
and this subdivision is the applicable percentage for the property 
(determined under paragraph (d)(2) of this section) multiplied by the 
lower of (a)

[[Page 485]]

the additional depreciation attributable to periods before January 1, 
1970, or (b) the excess (referred to as remaining gain) of the gain 
realized over the additional depreciation attributable to periods after 
December 31, 1969.
    (iii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. Section 1250 property which has an adjusted basis of 
$500,000 is sold for $650,000 after December 31, 1969, and thus the gain 
realized is $150,000. At the time of the sale the additional 
depreciation in respect of the property attributable to periods after 
December 31, 1969, is $190,000 and the applicable percentage is 100 
percent (paragraph (d)(1)(i)(e) of this section). Since the gain 
realized ($150,000), is lower than the additional depreciation 
($190,000), the amount of gain recognized as ordinary income under 
section 1250(a)(1) is $150,000 (that is, 100 percent of $150,000). No 
gain is recognized under section 1250(a)(2).
    Example 2. Section 1250 property which has an adjusted basis of 
$440,000 is sold for $500,000 on December 31, 1974, and thus the gain 
realized is $60,000. The property was acquired on March 31, 1966. At the 
time of the sale, the additional depreciation attributable to periods 
after December 31, 1969, is $20,000, and the additional depreciation 
attributable to periods before January 1, 1970, is $60,000. The property 
qualified as residential rental property for each taxable year ending 
after December 31, 1969, and the applicable percentage is 95 percent 
(paragraph (d)(1)(i)(c) of this section). The applicable percentage 
under paragraph (d)(2) of this section is 15 percent. Since the 
additional depreciation attributable to periods after December 31, 1969 
($20,000), is lower than the gain realized ($60,000), the amount of gain 
recognized as ordinary income under section 1250(a)(1) is $19,000 (that 
is, 95 percent of $20,000). In addition, gain is recognized under 
section 1250(a)(2) since there is remaining gain of $40,000 (that is, 
the gain realized ($60,000) minus the additional depreciation 
attributable to periods after December 31, 1969 ($20,000)). Since the 
remaining gain of $40,000 is lower than the additional depreciation 
attributable to periods before January 1, 1970 ($60,000), the amount of 
gain recognized as ordinary income under section 1250(a)(2) is $6,000 
(that is, 15 percent of $40,000). The remaining $35,000 (that is, gain 
realized $60,000, minus gain recognized under section 1250(a), $25,000) 
of the gain may be treated as gain from the sale or exchange of property 
described in section 1231.

    (4) Other dispositions after December 31, 1969. (i) In the case of a 
disposition of section 1250 property after December 31, 1969, other than 
by way of a sale, exchange, or involuntary conversion, the gain to which 
section 1250(a)(1) applies is the applicable percentage for the property 
(determined under paragraph (d)(1) of this section) multiplied by the 
lower of (a) the additional depreciation in respect of the property 
attributable to periods after December 31, 1969, or (b) the excess 
(referred to as potential gain) of the fair market value of the property 
over its adjusted basis. In addition, if the potential gain exceeds the 
additional depreciation attributable to periods after December 31, 1969, 
then the gain to which section 1250(a)(2) applies is the applicable 
percentage for the property (determined under paragraph (d)(2) of this 
section) multiplied by the lower of (c) the additional depreciation 
attributable to periods before January 1, 1970, or (d) the excess 
(referred to as remaining potential gain) of the potential gain over the 
additional depreciation attributable to periods after December 31, 1969. 
If property is transferred by a corporation to a shareholder for an 
amount less than its fair market value in a sale or exchange, for 
purposes of applying section 1250 such transfer shall be treated as a 
disposition other than by way of a sale, exchange, or involuntary 
conversion.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. Section 1250 property having an adjusted basis of 
$500,000 and a fair market value of $550,000 is distributed by a 
corporation to a stockholder in complete liquidation of the corporation 
after December 31, 1969, and thus the potential gain is $50,000. At the 
time of the liquidation, the additional depreciation for the property 
attributable to periods after December 31, 1969, is $80,000 and the 
applicable percentage is 100 percent (paragraph (d)(1)(i)(e) of this 
section). Since the potential gain of $50,000 is lower than the 
additional depreciation attributable to periods after December 31, 1969 
($80,000), the amount of gain recognized as ordinary income under 
section 1250(a)(1) is $50,000 (that is, 100 percent of $50,000) even 
though in the absence of section 1250, section 336 would preclude 
recognition of gain to the corporation.
    Example 2. The facts are the same as in example (1) except that the 
fair market value of the property is $650,000, and thus the potential 
gain is $150,000. Since the additional depreciation attributable to 
periods after

[[Page 486]]

December 31, 1969 ($80,000), is lower than the potential gain of 
$150,000, the amount of gain recognized as ordinary income under section 
1250(a)(1) is $80,000 (that is, 100 percent of $80,000). In addition, 
section 1250(a)(2) applies since there is remaining potential gain of 
$70,000, that is, potential gain ($150,000) minus additional 
depreciation attributable to periods after December 31, 1969 ($80,000). 
The additional depreciation attributable to periods before January 1, 
1970, is $90,000 and the applicable percentage under paragraph (d)(2) of 
this section is 50 percent. Since the remaining potential gain of 
$70,000 is lower than the additional depreciation attributable to 
periods before January 1, 1970 ($90,000), the amount of gain recognized 
as ordinary income under section 1250(a)(2) is $35,000 (that is, 50 
percent of $70,000). Thus under section 1250(a), $115,000 (that is, 
$80,000 under section 1250(a)(1), plus $35,000 under section 1250(a)(2)) 
is recognized as ordinary income, even though in the absence of section 
1250, section 336 would preclude recognition of gain to the corporation.

    (5) Instances of nonapplication. (i) Section 1250(a)(1) does not 
apply to losses. Thus, section 1250(a)(1) does not apply if a loss is 
realized upon a sale, exchange, or involuntary conversion of property, 
all of which is considered section 1250 property, nor does the section 
apply to a disposition of such property other than by way of sale, 
exchange, or involuntary conversion if at the time of the disposition 
the fair market value of such property is not greater than its adjusted 
basis.
    (ii) In general, in the case of section 1250 property with a holding 
period under section 1223 of more than 1 year, section 1250(a)(1) does 
not apply if for periods after December 31, 1969, there are no 
depreciation adjustments in excess of straight line (as computed under 
section 1250(b) and paragraph (b) of Sec.  1.1250-2).
    (6) Allocation rules. (i) In the case of a sale, exchange, or 
involuntary conversion of section 1250 property and nonsection 1250 
property in one transaction after December 31, 1969, the total amount 
realized upon the disposition shall be allocated between the section 
1250 property and the other property in proportion to their respective 
fair market values. Such allocation shall be made in accordance with the 
principles set forth in paragraph (a)(5) of Sec.  1.1245-1 (relating to 
allocation between section 1245 property and nonsection 1245 property).
    (ii) If an item of section 1250 property has two (or more) 
applicable percentages because one subdivision of paragraph (d)(1)(i) of 
this section applies to one portion of the taxpayer's holding period 
(determined under Sec.  1.1250-4) and another subdivision of such 
paragraph applies with respect to another such portion, then the gain 
realized on a sale, exchange, or involuntary conversion, or the 
potential gain in the case of any other disposition, shall be allocated 
to each such portion of the taxpayer's holding period after December 31, 
1969, in the same proportion as the additional depreciation with respect 
to such item for such portion bears to the additional depreciation with 
respect to such item for the entire holding period after December 31, 
1969.
    (b) Dispositions before January 1, 1970--(1) Ordinary income. In 
general, section 1250(a)(2) provides that, upon a disposition of an item 
of section 1250 property after December 31, 1963, and before January 1, 
1970, the applicable percentage of the lower of:
    (i) The additional depreciation (as defined in Sec.  1.1250-2) 
attributable to periods before January 1, 1970, in respect of the 
property, or
    (ii) The excess of the amount realized on a sale, exchange, or 
involuntary conversion (or the fair market value of the property on any 
other disposition) over the adjusted basis of the property,

shall be treated as gain from the sale or exchange of property which is 
neither a capital asset nor property described in section 1231 (that is, 
shall be recognized as ordinary income). The amount of such gain shall 
be determined separately for each item (see subparagraph (2)(ii) of this 
paragraph) of section 1250 property. For relation of section 1250 to 
other provisions, see paragraph (c) of this section.
    (2) Meaning of terms. (i) For purposes of section 1250, the term 
disposition shall have the same meaning as in paragraph (a)(3) of Sec.  
1.1245-1. Section 1250 property is, in general, depreciable real 
property other than section 1245 property. See paragraph (e) of this 
section. For purposes of this paragraph, the term applicable percentage 
means 100 percent minus 1 percentage point for each full month the 
property was

[[Page 487]]

held after the date on which the property was held 20 full months. See 
paragraph (d)(2) of this section. If, however, the property is 
considered to have two or more elements with separate holding periods 
(for example, because units thereof are placed in service on different 
dates, or improvements are made to the property), see the special rules 
of Sec.  1.1250-5.
    (ii) For purposes of applying section 1250, the facts and 
circumstances of each disposition shall be considered in determining 
what is the appropriate item of section 1250 property. In general, a 
building is an item of section 1250 property, but in an appropriate case 
more than one building may be treated as a single item. For manner of 
determining whether an expenditure shall be treated as an addition to 
the capital account of an item of section 1250 property or as a separate 
item of section 1250 property, see paragraph (d)(2)(iii) of Sec.  
1.1250-5.
    (3) Sale, exchange, or involuntary conversion before January 1, 
1970. (i) In the case of a disposition of section 1250 property by a 
sale, exchange, or involuntary conversion before January 1, 1970, the 
gain to which section 1250(a)(2) applies is the applicable percentage 
for the property multiplied by the lower of (a) the additional 
depreciation in respect of the property or (b) the excess (referred to 
as gain realized) of the amount realized over the adjusted basis of the 
property.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: Section 1250 property, which has an adjusted basis of 
$200,000, is sold for $290,000 before January 1, 1970. At the time of 
the sale the additional depreciation in respect of the property is 
$130,000 and the applicable percentage is 60 percent. Since the gain 
realized ($90,000, that is, amount realized, $290,000, minus adjusted 
basis, $200,000) is lower than the additional depreciation ($130,000), 
the amount of gain recognized as ordinary income under section 
1250(a)(2) is $54,000 (that is, 60 percent of $90,000). The remaining 
$36,000 ($90,000 minus $54,000) of the gain may be treated as gain from 
the sale or exchange of property described in section 1231.

    (4) Other dispositions before January 1, 1970. (i) In the case of a 
disposition of section 1250 property before January 1, 1970, other than 
by way of a sale, exchange, or involuntary conversion, the gain to which 
section 1250(a)(2) applies is the applicable percentage for the property 
multiplied by the lower of (a) the additional depreciation in respect of 
the property, or (b) the excess (referred to as potential gain) of the 
fair market value of the property on the date of disposition over its 
adjusted basis. If property is transferred by a corporation to a 
shareholder for an amount less than its fair market value in a sale or 
exchange, for purposes of applying section 1250 such transfer shall be 
treated as a disposition other than by way of a sale, exchange, or 
involuntary conversion.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: Assume the same facts as in the example in subparagraph 
(3)(ii) of this paragraph except that the property is distributed by a 
corporation to a stockholder before January 1, 1970, in complete 
liquidation of the corporation, and that at the time of the distribution 
the fair market value of the property is $370,000. Since the additional 
depreciation ($130,000) is lower than the potential gain of $170,000 
(that is, fair market value, $370,000, minus adjusted basis, $200,000), 
the amount of gain recognized as ordinary income under section 
1250(a)(2) is $78,000 (that is, 60 percent of $130,000) even though, in 
the absence of section 1250, section 336 would preclude recognition of 
gain to the corporation.

    (5) Instances of nonapplication. (i) Section 1250(a)(2) does not 
apply to losses. Thus, section 1250(a)(2) does not apply if a loss is 
realized upon a sale, exchange, or involuntary conversion of property, 
all of which is considered section 1250 property, nor does the section 
apply to a disposition of such property other than by way of sale, 
exchange, or involuntary conversion if at the time of the disposition 
the fair market value of such property is not greater than its adjusted 
basis.
    (ii) In general, in the case of section 1250 property with a holding 
period under section 1223 of more than one year, section 1250(a)(2) does 
not apply if for periods after December 1, 1963, there are no 
depreciation adjustments in excess of straight line (as computed under 
section 1250(b) and paragraph (b) of Sec.  1.1250-2).

[[Page 488]]

    (iii) In a case in which section 1250 property (including each 
element thereof, if any) has a holding period under Sec.  1.1250-4 (or 
paragraph (a)(2)(ii) of Sec.  1.1250-5) of at least 10 years, section 
1250(a)(2) does not apply. If within the 10-year period preceding the 
date the property is disposed of, an element is added to the property by 
reason, for example, of an addition to capital account, see Sec.  
1.1250-5.
    (6) Allocation rule. In the case of a sale, exchange, or involuntary 
conversion of section 1250 property and nonsection 1250 property in one 
transaction before January 1, 1970, the total amount realized upon the 
disposition shall be allocated between the section 1250 property and the 
other property in proportion to their respective fair market values. 
Such allocation shall be made in accordance with the principles set 
forth in paragraph (a)(5) of Sec.  1.1245-1 (relating to allocation 
between section 1245 property and nonsection 1245 property).
    (c) Relation of section 1250 to other provisions--(1) General. The 
provisions of section 1250 apply notwithstanding any other provision of 
subtitle A of the Code. See section 1250(i). Thus, unless an exception 
or limitation under section 1250(d) and Sec.  1.1250-3 applies, gain 
under section 1250(a) is recognized notwithstanding any contrary 
nonrecognition provision or income characterizing provision. For 
example, since section 1250 overrides section 1231 (relating to property 
used in the trade or business), the gain recognized under section 
1250(a) upon a disposition will be treated as ordinary income and only 
the remaining gain, if any, from the disposition may be considered as 
gain from the sale or exchange of a capital asset if section 1231 is 
applicable. See the example in paragraph (b)(3)(ii) of this section.
    (2) Nonrecognition sections overridden. The nonrecognition 
provisions of subtitle A of the Code which section 1250 overrides 
include, but are not limited to, sections 267(d), 311(a), 336, 337, 
501(a), and 512(b)(5). See section 1250(d) for the extent to which 
section 1250(a) overrides sections 332, 351, 361, 371(a), 374(a), 721, 
731, 1031, 1033, 1039, 1071, and 1081 (b)(1) and (d)(1)(A). For amount 
of additional depreciation in respect of property disposed of by an 
organization exempt from income taxes (within the meaning of section 
501(a)), see paragraph (d)(6) of Sec.  1.1250-2.
    (3) Exempt income. The fact that section 1250 provides for 
recognition of gain as ordinary income does not change into taxable 
income any income which is exempt under section 115 (relating to income 
of States, etc.), 892 (relating to income of foreign governments), or 
894 (relating to income exempt under treaties).
    (4) Treatment of gain not recognized under section 1250. Section 
1250 does not prevent gain which is not recognized under section 1250 
from being considered as gain under another provision of the Code, such 
as, for example, section 1239 (relating to gain from sale of depreciable 
property between certain related persons). Thus, for example, if section 
1250 property which has an adjusted basis of $10,000 is sold for $17,500 
in a transaction to which section 1239 applies, and if $5,000 of the 
gain would be recognized under section 1250(a) then the remaining $2,500 
of the gain would be treated as ordinary income under section 1239.
    (5) Normal retirement of asset in multiple asset account. Section 
1250(a) does not require recognition of gain upon normal retirements of 
section 1250 property in a multiple asset account as long as the 
taxpayer's method of accounting, as described in paragraph (e)(2) of 
Sec.  1.167(a)-8 (relating to accounting treatment of asset 
retirements), does not require recognition of such gain.
    (6) Installment method. Gain from a disposition to which section 
1250(a) applies may be reported under the installment method if such 
method is otherwise available under section 453 of the Code. In such 
case, the income (other than interest) on each installment payment shall 
be deemed to consist of gain to which section 1250(a) applies until all 
such gain has been reported, and the remaining portion (if any) of such 
income shall be deemed to consist of other gain. For treatment of 
amounts as interest on certain deferred payments, see section 483.
    (d) Applicable percentage--(1) Definition for purposes of section 
1250(a)(1). (i)

[[Page 489]]

For purposes of section 1250(a)(1), the term applicable percentage 
means:
    (a) In the case of property disposed of pursuant to a written 
contract which was, on July 24, 1969, and at all times thereafter 
binding on the owner of the property, 100 percent minus 1 percentage 
point for each full month the property was held after the date on which 
the property was held 20 full months;
    (b) In the case of property constructed, reconstructed, or acquired 
by the taxpayer before January 1, 1975, with respect to which a mortgage 
is insured under section 221(d)(3) or 236 of the National Housing Act, 
or housing is financed or assisted by direct loan or tax abatement under 
similar provisions of State or local laws, and with respect to which the 
owner is subject to the restrictions described in section 1039(b)(1)(B) 
(relating to approved dispositions of certain Government-assisted 
housing projects), 100 percent minus 1 percentage point for each full 
month of the taxpayer's holding period for the property (determined 
under Sec.  1.1250-4) during which the property qualified under this 
sentence, beginning after the date on which the property so qualified 
for 20 full months.
    (c) In the case of residential rental property (as defined in 
section 167(j)(2)(B)) other than that covered by (a) and (b) of this 
subdivision, 100 percent minus 1 percentage point for each full month of 
the taxpayer's holding period for the property (determined under Sec.  
1.1250-4) included within a taxable year for which the property 
qualified as residential rental property, beginning after the date on 
which the property so qualified for 100 full months.
    (d) In the case of property with respect to which a deduction was 
allowed under section 167(k) (relating to the depreciation of 
expenditures to rehabilitate low-income rental housing), 100 percent 
minus 1 percentage point for each full month of the taxpayer's holding 
period (determined under Sec.  1.1250-4) beginning 100 full months after 
the date on which the property was placed in service.
    (e) In the case of all other property, 100 percent.

The provisions of (a), (b), and (c) of this subdivision shall not apply 
with respect to additional depreciation described in section 1250(b)(4). 
If the taxpayer's holding period under Sec.  1.1250-4 includes a period 
before January 1, 1970, such period shall be taken into account in 
applying each provision of this subdivision.
    (ii) A single item of property may have two (or more) applicable 
percentages under the provisions of subdivision (i) of this 
subparagraph. For example, if the provision of subdivision (i) of this 
subparagraph which applies to an item of section 1250 property (or to an 
element of such property if the property is treated as consisting of 
more than one element under Sec.  1.1250-5) in the taxable year in which 
the item (or element) is disposed of did not apply to the item (or 
element) in a prior taxable year which is included within the taxpayer's 
holding period under Sec.  1.1250-4 and which ends after December 31, 
1969, then each provision of subdivision (i) of this subparagraph shall 
apply only for the period during which the property qualified under such 
provision.
    (iii) If the taxpayer makes rehabilitation expenditures and elects 
to compute depreciation under section 167(k) with respect to the 
property attributable to the rehabilitation expenditures, such property 
will generally constitute a separate improvement under paragraph (c) of 
Sec.  1.1250-5 and therefore will constitute an element of section 1250 
property. For computation of applicable percentage and gain recognized 
under section 1250(a) in such a case, see paragraph (a) of Sec.  1.1250-
5.
    (iv) The principles of this subparagraph may be illustrated by the 
following examples:

    Example 1. Section 1250 property is sold on December 31, 1970, 
pursuant to a written contract which was binding on the owner of the 
property on July 24, 1969, and at all times thereafter. The property was 
acquired on July 31, 1968. The applicable percentage for the property 
under subdivision (i)(a) of this subparagraph is 91 percent, since the 
property was held 29 full months.
    Example 2. Section 1250 property is sold on June 30, 1978. The 
property was acquired by a calendar year taxpayer on June 30, 1966. 
Subdivision (i)(e) of this subparagraph applies to the property in 1977 
and 1978. However, subdivision (i)(c) of this subparagraph applied to 
the property for the taxable years of 1970 through 1976. Thus, the 
property has

[[Page 490]]

two applicable percentages under this subparagraph. The period before 
January 1, 1970 (42 full months), and the period from 1970 through 1976 
(84 full months) are both taken into account in determining the 
applicable percentage under subdivision (i)(c) of this subparagraph. 
Thus, the applicable percentage is 74 percent (that is, 100 percent 
minus the excess of the holding period taken into account (126 full 
months) over 100 full months). The applicable percentage for the years 
1977 and 1978 is 100 percent under subdivision (i)(e) of this 
subparagraph.
    Example 3. Section 1250 property is sold on December 31, 1978. The 
property was acquired by a calendar year taxpayer on December 31, 1969. 
The taxpayer made rehabilitation expenditures in 1973 and properly 
elected to compute depreciation under section 167(k) on the property 
attributable to the expenditures for the 60-month period beginning on 
January 1, 1974, the date such property was placed in service. 
Subdivision (i)(c) applies to the property (other than the property with 
respect to which a deduction was allowed under section 167(k)) for the 
taxable years of 1970 through 1978 (108 full months) and the applicable 
percentage for such property is 92 percent. The applicable percentage 
for the property with respect to which a deduction under section 167(k) 
was allowed is 100 percent under subdivision (i)(d) of this 
subparagraph, since the holding period for purposes of such subdivision 
begins on the date such property is placed in service.
    Example 4. Section 1250 property is sold by a calendar year taxpayer 
on March 31, 1974. The property was transferred to the taxpayer by gift 
on December 31, 1970, and under section 1250(e)(2), the taxpayer's 
holding period for the property for purposes of computing the applicable 
percentage includes the transferor's holding period of 80 full months. 
Subdivision (i)(c) of this subparagraph applies to the property in the 
years 1970 through 1974. The applicable percentage under subdivision (i) 
(c) of this subparagraph is 81 percent, since the period before January 
1, 1970 (68 full months), and that portion of the period after December 
31, 1969, during which such subdivision applied (51 full months) are 
taken into account.

    (2) Definition for purposes of section 1250(a)(2). For purposes of 
section 1250(a)(2), the term applicable percentage means:
    (i) In case of property with a holding period of 20 full months or 
less, 100 percent;
    (ii) In case of property with a holding period of more than 20 full 
months but less than 10 years, 100 percent minus 1 percentage point for 
each full month the property is held after the date on which the 
property is held 20 full months; and
    (iii) In case of property with a holding period of at least 10 
years, zero.
    (3) Holding period. For purposes of this paragraph, the holding 
period of property shall be determined under the rules of Sec.  1.1250-
4, and not under the rules of section 1223, notwithstanding that the 
property was acquired on or before December 31, 1963. In the case of a 
disposition of section 1250 property which consists of 2 or more 
elements (within the meaning of paragraph (c) of Sec.  1.1250-5), the 
holding period for each element shall be determined under the rules of 
paragraph (a)(2)(ii) of Sec.  1.1250-5.
    (4) Full month. For purposes of this paragraph, the term full month 
(or full months) means the period beginning on a date in 1 month and 
terminating on the date before the corresponding date in the next 
succeeding month (or in another succeeding month), or, if a particular 
succeeding month does not have such a corresponding date, terminating on 
the last day of such particular succeeding month.
    (5) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Property is purchased on January 17, 1959. Under 
paragraph (b)(1) of Sec.  1.1250-4, its holding period begins on January 
18, 1959, and thus at any time during the period beginning on October 
17, 1960, and ending on November 16, 1960, the property is considered 
held 21 full months and has an applicable percentage under section 
1250(a)(2) of 99 percent. On and after January 17, 1969, the property 
has a holding period of at least 120 full months (10 years) and, 
therefore, the applicable percentage under section 1250(a)(2) for the 
property is zero. Accordingly, no gain would be recognized under section 
1250(a)(2) upon disposition of the property. If, however, the property 
consists of two or more elements, see the special rules of Sec.  1.1250-
5.
    Example 2. Property is purchased on January 31, 1968. Under 
paragraph (b)(1) of Sec.  1.1250-4 its holding period begins on February 
1, 1968, and thus at any time during the period beginning on February 
29, 1968, and ending on March 30, 1968, the property is considered held 
1 full month. At any time during the period beginning on March 31, 1970, 
and ending on April 29, 1970, the property is considered held 26 full 
months. At any time during the period beginning on April 30, 1970, and 
ending on May 30, 1970, the property is considered held 27 full months.


[[Page 491]]


    (e) Section 1250 property--(1) Definition. The term section 1250 
property means any real property (other than section 1245 property, as 
defined in section 1245(a)(3) and Sec.  1.1245-3) which is or has been 
property of a character subject to the allowance for depreciation 
provided in section 167. See section 1250(c).
    (2) Character of property. For purposes of subparagraph (1) of this 
paragraph, the term is or has been property of a character subject to 
the allowance for depreciation provided in section 167 shall have the 
same meaning as when used in paragraph (a) (1) and (3) of Sec.  1.1245-
3. Thus, if a father uses a house in his trade or business during a 
period after December 31, 1963, and then gives the house to his son as a 
gift for the son's personal use, the house is section 1250 property in 
the hands of the son. For exception to the application of section 
1250(a) upon disposition of a principal residence, see section 
1250(d)(7).
    (3) Real property. (i) For purposes of subparagraph (1) of this 
paragraph, the term real property means any property which is not 
personal property within the meaning of paragraph (b) of Sec.  1.1245-3. 
The term section 1250 property includes three types of depreciable real 
property. The first type is intangible real property. For purposes of 
this paragraph, a leasehold of land or of section 1250 property is 
intangible real property, and accordingly such a leasehold is section 
1250 property. However, a fee simple interest in land is not 
depreciable, and therefore is not section 1250 property. The second type 
is a building or its structural components within the meaning of 
paragraph (c) of Sec.  1.1245-3. The third type is all other tangible 
real property except (a) property described in section 1245(a)(3)(B) as 
defined in paragraph (c)(1) of Sec.  1.1245-3 (relating to property used 
as an integral part of a specified activity or as a specified facility), 
and (b) property described in section 1245(a)(3)(D). An elevator or 
escalator (within the meaning of section 1245(a)(3)(C)) is not section 
1250 property.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: A owns and leases to B for a single lump-sum payment of 
$100,000 property consisting of land and a fully equipped factory 
building thereon. If 30 percent of the fair market value of such 
property is properly allocable to the land, 25 percent to section 1250 
property (the building and its structural components), and 45 percent to 
section 1245 property (the equipment), then 55 percent of B's leasehold 
is section 1250 property.

    (4) Coordination with definition of section 1245 property. (i) 
Property may lose its character as section 1250 property and become 
section 1245 property. Thus, for example, if section 1250 property of 
the third type described in subparagraph (3)(i)(a) of this paragraph is 
converted to use as an integral part of manufacturing, the property 
would lose its character as section 1250 property and would become 
section 1245 property. However, once property in the hands of a taxpayer 
is section 1245 property, it can never become section 1250 property in 
the hands of such taxpayer. See also paragraph (a) (4) and (5) of Sec.  
1.1245-2.
    (f) Treatment of partnerships and partners. If a partnership 
disposes of section 1250 property, the amount of gain recognized under 
section 1250(a) by the partnership and by a partner shall be determined 
in a manner consistent with the principles provided in paragraph (e) of 
Sec.  1.1245-1. Thus, for example, a partner's distributive share of 
gain recognized by the partnership under section 1250(a) shall be 
determined in the same manner as his distributive share of gain 
recognized by the partnership under section 1245(a)(1) is determined, 
and, if required, additional depreciation in respect of section 1250 
property shall be allocated to the partner in the same manner as the 
adjustments reflected in the adjusted basis of section 1245 property are 
allocated to the partner. For a further example, if on the date a 
partner acquires his partnership interest by way of a sale or exchange 
the partnership owns section 1250 property and an election under section 
754 (relating to optional adjustment to basis of partnership property) 
is in effect with respect to the partnership, then such partner's 
additional depreciation in respect of such property on such date is 
deemed to be zero. For limitation on the amount of gain recognized under 
section 1250(a) in respect of a partnership

[[Page 492]]

and for the amount of additional depreciation in respect of partnership 
property after certain transactions, see paragraph (f) of Sec.  1.1250-
3. For treatment of section 1250 property as an unrealized receivable, 
see section 751(c).
    (g) Examples. The principles of this section may be illustrated by 
the following examples:

    Example 1. Section 1250 property which has an adjusted basis of 
$350,000 is sold for $630,000 on December 31, 1984. The property was 
acquired by a calendar year taxpayer on December 31, 1969. For the 
taxable years from 1970 through 1980, the property qualified as 
residential rental property and the applicable percentage for those 
years is 68 percent (paragraph (d)(1)(i)(c) of this section). For 
taxable years from 1981 through 1984, the property did not qualify as 
residential rental property and the applicable percentage for those 
years is 100 percent (paragraph (d)(1)(i)(e) of this section). The 
additional depreciation for the years from 1970 through 1980 is 
$120,000. The additional depreciation for the years from 1981 through 
1984 is $20,000. The gain realized is $280,000 (that is, amount 
realized, $630,000, minus adjusted basis $350,000). The gain recognized 
as ordinary income under section 1250(a)(1) is computed in two steps. 
First, since the additional depreciation attributable to the years 1970 
through 1980 ($120,000) is lower than the gain realized attributable to 
such years determined under paragraph (a)(6) of this section ($240,000, 
that is, gain realized, $280,000, multiplied by \12/14\), the gain 
recognized as ordinary income under section 1250(a)(1) in the first step 
is $81,600, that is, 68 percent of $120,000. Second, since the 
additional depreciation attributable to the years 1981 through 1984 
($20,000) is lower than the gain realized attributable to those years 
($40,000, that is, gain realized, $280,000, multiplied by \2/14\), the 
gain recognized as ordinary income under section 1250(a)(1) for the 
years from 1981 through 1984 is $20,000 (that is, 100 percent of 
$20,000). The total gain recognized under section 1250(a)(1) is $101,600 
(that is, $81,600 plus $20,000).
    Example 2. Section 1250 property which has an adjusted basis of 
$400,000 is sold for $472,000 on December 31, 1978. The property was 
acquired on December 31, 1966. The additional depreciation attributable 
to periods before January 1, 1970, is $40,000 and the applicable 
percentage under paragraph (d)(2) of this section is zero percent. The 
property qualifies as residential rental property for the years 1970 
through 1976, but fails to qualify for 1977 and 1978. Under paragraph 
(d)(1) of this section, the applicable percentage for the years 1970 
through 1976 is 80 percent (paragraph (d)(1)(i)(c) of this section), and 
the applicable percentage for the years 1977 and 1978 is 100 percent 
(paragraph (d)(1)(i)(e) of this section). The additional depreciation 
attributable to the years 1970 through 1976 is $50,000, and the 
additional depreciation attributable to the years 1977 and 1978 is 
$10,000. The gain recognized as ordinary income under section 1250(a)(1) 
is computed in two steps. First, since the additional depreciation 
attributable to the years 1970 through 1976 ($50,000) is lower than the 
gain realized attributable to such years ($60,000, that is, $72,000 
multiplied by \5/6\), the gain recognized under section 1250(a)(1) in 
the first step is $40,000 (that is, 80 percent of $50,000). Second, 
since the additional depreciation attributable to 1977 and 1978 
($10,000) is lower than the gain realized attributable to such years 
($12,000, that is, $72,000 multiplied by \1/6\), the gain recognized 
under section 1250(a)(1) in the second step is $10,000 (that is, 100 
percent of $10,000). In addition, section 1250(a)(2) applies. However, 
since the applicable percentage is zero percent, none of the gain is 
recognized as ordinary income under section 1250(a)(2). Thus, the 
remaining $22,000 (that is, gain realized, $72,000, minus gain 
recognized under section 1250(a), $50,000) of the gain may be treated as 
gain from the sale or exchange of property described in section 1231.
    Example 3. The facts are the same as in example (2) except that the 
property is disposed of on December 31, 1980. The property qualifies as 
residential rental property for the years 1979 and 1980. Thus, the 
applicable percentage for years 1970 through 1976, 1979, and 1980 is 56 
percent (paragraph (d)(1)(i)(c) of this section). The applicable 
percentage for the years 1977 and 1978 is 100 percent (paragraph 
(d)(1)(i)(e) of this section). The additional depreciation for the years 
1979 and 1980 is $8,000. The gain recognized under section 1250(a)(1) is 
computed in two steps. First, since the additional depreciation 
attributable to the years 1970 through 1976, 1979, and 1980 ($58,000) is 
lower than the gain realized attributable to such years ($61,412, that 
is, $72,000 multiplied by $58,000/$68,000), the gain recognized under 
section 1250(a)(1) in the first step is $32,480 (that is, 56 percent of 
$58,000). Second, since the additional depreciation attributable to 1977 
and 1978 ($10,000) is lower than the gain realized attributable to such 
years ($10,588, that is, $72,000 multiplied by $10,000/$68,000) the gain 
recognized under section 1250(a)(1) in the second step is $10,000 (that 
is, 100 percent of $10,000). In addition section 1250(a)(2) applies. 
However, since the applicable percentage is zero percent, none of the 
gain is recognized as ordinary income under section 1250(a)(2). Thus, 
the remaining $29,520 (that is, gain realized, $72,000, minus gain 
recognized under section 1250(a), $42,480) of the gain may be

[[Page 493]]

treated as gain from the sale or exchange of property described in 
section 1231.

[T.D. 7084, 36 FR 271, Jan. 8, 1971, as amended by T.D. 7193, 37 FR 
12953, June 30, 1972]



Sec.  1.1250-2  Additional depreciation defined.

    (a) In general--(1) Definition for purposes of section 1250(b)(1). 
Except as otherwise provided in paragraph (e) of this section, for 
purposes of section 1250(b)(1), the term additional depreciation means:
    (i) In the case of property which at the time of disposition has a 
holding period under section 1223 of not more than 1 year, the 
depreciation adjustments (as defined in paragraph (d) of this section) 
in respect of such property for periods after December 31, 1963, and
    (ii) In the case of property which at the time of disposition has a 
holding period under section 1223 of more than 1 year, the depreciation 
adjustments in excess of straight line for periods after December 31, 
1963, computed under paragraph (b)(1) of this section.
    (2) Definition for purposes of section 1250(b)(4). Except as 
otherwise provided in paragraph (e) of this section, for purposes of 
section 1250(b)(4), the term additional depreciation means:
    (i) In the case of property with respect to which a deduction under 
section 167(k) (relating to depreciation of expenditures to rehabilitate 
low-income rental housing) was allowed, which at the time of disposition 
has a holding period under section 1223 of not more than 1 year from the 
time the rehabilitation expenditures were incurred, the depreciation 
adjustments (as defined in paragraph (d) of this section) in respect of 
the property, and
    (ii) In the case of property with respect to which a deduction under 
section 167(k) (relating to depreciation of expenditures to rehabilitate 
low-income rental housing) was allowed, which at the time of disposition 
has a holding period under section 1223 of more than 1 year from the 
time the rehabilitation expenditures were incurred, the depreciation 
adjustments in excess of straight line for the property, computed under 
paragraph (b)(2) of this section.

For purposes of this subparagraph, all rehabilitation expenditures which 
are incurred in connection with the rehabilitation of an element of 
section 1250 property shall be considered incurred on the date the last 
such expenditure is considered incurred under the accrual method of 
accounting, regardless of the method of accounting used by the taxpayer 
with regard to other items of income and expense. If the property 
consists of two or more elements (for example, if the property is placed 
in service at different times), then each element shall be treated as if 
it were a separate property and the expenditures attributable to each 
such element shall be considered incurred on the date the last such 
expenditure is considered incurred.
    (3) Allocation to certain periods. With respect to a taxable year 
beginning in 1963 and ending in 1964, or beginning in 1969 and ending in 
1970, the amount of depreciation adjustments or of depreciation 
adjustments in excess of straight line (as the case may be) shall be 
ascertained by applying the principles of paragraph (c)(3) of Sec.  
1.167(a)-8 (relating to determination of adjusted basis of retired 
asset), and the amount determined in such manner shall be allocated on a 
daily basis in order to determine the portion thereof which is 
attributable to a period after December 31, 1963, or after December 31, 
1969, as the case may be.
    (b) Computation of depreciation adjustments in excess of straight 
line--(1) General rule. For purposes of paragraph (a)(1) of this 
section, depreciation adjustments in excess of straight line shall be, 
in the case of any property, the excess of (i) the sum of the 
depreciation adjustments (as defined in paragraph (d) of this section) 
in respect of the property attributable to periods after December 31, 
1963, over (ii) the sum such adjustments would have been for such 
periods if such adjustments had been determined for the entire period 
the property was held under the straight line method of depreciation 
(or, if applicable, under the lease-renewal-period provision in 
paragraph (c) of this section). Depreciation in excess of straight line 
may arise, for example, if the declining balance method, the sum of the 
years-digits method, or the

[[Page 494]]

units of production method is used, or for another example, if the cost 
of a leasehold improvement or of a leasehold is depreciated over a 
period which does not take into account certain renewal periods referred 
to in paragraph (c) of this section. For computations of depreciation 
adjustments in excess of straight line (or a deficit therein) both on an 
annual basis and on the basis of the entire period the property was 
held, see subparagraph (6) of this paragraph.
    (2) Depreciation under section 167(k). For purposes of paragraph 
(a)(2) of this section, depreciation adjustments in excess of straight 
line shall be, in the case of any property with respect to which a 
deduction was allowed under section 167(k) (relating to depreciation of 
expenditures to rehabilitate low-income rental housing), the excess of 
(i) the sum of the depreciation adjustments (as defined in paragraph (d) 
of this section) allowed in respect of the property, over (ii) the sum 
such adjustments would have been if such adjustments had been determined 
for the entire period the property was held under the straight line 
method of depreciation permitted by section 167(b)(1).
    (3) General rule for computing useful life and salvage value. For 
purposes of computing under subparagraph (1)(ii) of this paragraph the 
sum of the depreciation adjustments would have been under the straight 
line method, if a useful life (or salvage value) was used in determining 
the amount allowed as a depreciation adjustment for any taxable year, 
such life (or value) shall be used in determining the amount such 
depreciation adjustment would have been for such taxable year under the 
straight line method. If, however, for any taxable year a method of 
depreciation was used as to which a useful life was not taken into 
account such as, for example, the units of production method, or as to 
which salvage value was not taken into account in determining the annual 
allowances, such as, for example, the declining balance method or the 
amortization of a leasehold improvement over the term of a lease, then, 
for the purpose of determining the amount such depreciation adjustment 
would have been under the straight line method for such taxable year:
    (i) There shall be used the useful life (or salvage value) which 
would have been proper if depreciation had actually been determined 
under the straight line method throughout the period the property was 
held, and
    (ii) Such useful life (or such salvage value) shall be determined by 
taking into account for each taxable year the same facts and 
circumstances as would have been taken into account if the taxpayer had 
used such method throughout the period the property was held.
    (4) Special rule for computing useful life and salvage value 
(section 167(k)). For purposes of computing under subparagraph (2)(ii) 
of this paragraph the sum the depreciation adjustments would have been 
under the straight line method, the useful life and salvage value 
permitted under section 167(k) shall not apply, the useful life of the 
property shall be determined under paragraph (b) of Sec.  1.167(a)-1 
(or, if applicable, under the lease-renewal-period provision of 
paragraph (c) of this section), and the salvage value of the property 
shall be determined under paragraph (c) of Sec.  1.167(a)-1. Such useful 
life or salvage value shall be determined by taking into account for 
each taxable year the same facts and circumstances as would have been 
taken into account if the taxpayer had used the straight line method 
permitted under section 167(b)(1) throughout the period the property was 
held.
    (5) Property held before January 1, 1964. In the case of property 
held before January 1, 1964:
    (i) For purposes of computing under subparagraph (1)(ii) of this 
paragraph the sum the depreciation adjustments would have been under the 
straight line method, the adjusted basis of the property on such date 
shall be the amount such adjusted basis would have been if depreciation 
deductions allowed or allowable before such date had been determined 
under the straight line method computed in accordance with subparagraph 
(3) of this paragraph, and
    (ii) The depreciation adjustments in excess of straight line in 
respect of the property computed under subparagraph

[[Page 495]]

(1) of this paragraph, but without regard to this subdivision, shall be 
reduced by the amount of depreciation adjustments less than straight 
line for periods before January 1, 1964, that is, by the excess (if any) 
of the sum the depreciation adjustments would have been for periods 
before January 1, 1964, under the straight line method, over the sum of 
the depreciation adjustments attributable to periods before such date.
    (6) Determination of additional depreciation in certain cases. If an 
item of section 1250 property is subject to two (or more) applicable 
percentages, a separate computation of additional depreciation shall be 
made for the portion of the taxpayer's holding period subject to each 
such percentage. That is, a separate computation shall be made to 
determine the excess of (i) the depreciation adjustments (as defined in 
paragraph (d) of this section) for each such portion of the taxpayer's 
holding period after December 31, 1963, over (ii) the amount such 
adjustments would have been for each such portion if such adjustments 
were determined under the straight line method of depreciation (or, if 
applicable, under the lease-renewal-period provision in paragraph (c) of 
this section). Thus, for example, in the case of an item of section 1250 
property acquired on January 1, 1968, and disposed of on January 1, 
1973, if the applicable percentage for the period before January 1, 
1970, were determined under paragraph (d)(2) of Sec.  1.1250-1 and the 
applicable percentage for the period after December 31, 1969, were 
determined under paragraph (d)(1)(i)(e) of Sec.  1.1250-1, the 
additional depreciation would be computed separately for the period 
before January 1, 1970, and for the period after December 31, 1969. If 
the additional depreciation attributable to any such portion of the 
taxpayer's holding period is a deficit (that is, if the depreciation 
adjustments for that portion are less than the amount such adjustments 
would have been for that portion if depreciation adjustments were 
determined for the entire period the property was held under the 
straight line method of depreciation, or, if applicable, under the 
lease-renewal-period provision in paragraph (c) of this section), then 
such deficit will be applied to reduce the additional depreciation for 
other portion (or portions) of the taxpayer's holding period. (See 
examples (4) and (5) of subparagraph (7) of this paragraph.)
    (7) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A calendar year taxpayer sells section 1250 property on 
January 1, 1968, which he purchased for $10,000 on January 1, 1963. For 
the period of 1963 through 1967 he computed depreciation deductions in 
respect of the property under the declining balance method using a rate 
of 200 percent of the straight line rate and a proper useful life of 10 
years. Under such method salvage value is not taken into account in 
computing annual allowances. For purposes of applying subparagraph (3) 
of this paragraph, if the taxpayer had used the straight line method for 
such period, he would have used a salvage value of $1,000, and the 
depreciation under the straight line method would have been $900 each 
year, that is, one-tenth of $10,000 minus $1,000. As of January 1, 1968, 
the additional depreciation for the property is $1,123, as computed in 
the table below:

------------------------------------------------------------------------
                                                             Additional
              Year                   Actual      Straight   depreciation
                                  depreciation     line       (deficit)
------------------------------------------------------------------------
1963............................       $2,000         $900  ............
                                 =======================================
1964............................        1,600          900         $700
1965............................        1,280          900          380
1966............................        1,024          900          124
1967............................          819          900         (81)
------------------------------------------------------------------------
  Sum for periods after Dec. 31,        4,723        3,600        1,123
   1963.........................
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1) except that the 
taxpayer sells the section 1250 property on January 1, 1970. Assume 
further that as of January 1, 1968, the taxpayer elects under section 
167(e)(1) to change to the straight line method. On that date the 
adjusted basis of the property is $3,277 ($10,000 minus $6,723). He 
redetermines the remaining useful life of the property to be 8 years and 
its salvage value to be $77, and thus takes depreciation deductions for 
1968 and 1969 of $400 (the amount allowable) for each such year, that 
is, one-eighth of $3,200 (that is, $3,277 minus $77). For purposes of 
applying subparagraph (3) of this paragraph, if he had used the straight 
line method throughout the period he held the property, the adjusted 
basis of the property on January 1, 1968, would have been $5,500 
($10,000 minus $4,500), and the depreciation which would have resulted 
under such method for 1968 and 1969 would have been $678 for each such 
year, that is, one-eighth of $5,423 ($5,500

[[Page 496]]

minus $77). As of January 1, 1970, the additional depreciation for the 
property is $567, as computed in the table below:

------------------------------------------------------------------------
                                                             Additional
              Years               Depreciation   Straight   depreciation
                                                   line       (deficit)
------------------------------------------------------------------------
1964 through 1967...............       $4,723       $3,600       $1,123
1968............................          400          678        (278)
1969............................          400          678        (278)
------------------------------------------------------------------------
Sum for periods after Dec. 31,          5,523        4,956          567
 1963...........................
------------------------------------------------------------------------

    Example 3. On January 1, 1978, a calendar year taxpayer sells 
section 1250 property. The property, which is attributable to 
rehabilitation expenditures of $50,000 incurred in 1970, was placed in 
service on January 1, 1971. The taxpayer elected to compute depreciation 
for the period of 1971 through 1975 under section 167(k). Under such 
section salvage value is not taken into account in computing annual 
allowances, and the useful life of the property is deemed to be 5 years. 
For purposes of applying subparagraph (4) of this paragraph, if the 
taxpayer had used the straight line method permitted under section 
167(b)(1) for such period, he would have used a salvage value of $5,000 
and a useful life of 15 years. Depreciation under the straight line 
method would thus have been $3,000 each year, \1/15\ of $45,000 (that 
is, $50,000 minus $5,000). As of January 1, 1978, the additional 
depreciation for the property is $29,000, as computed in the table 
below:

------------------------------------------------------------------------
                                                             Additional
              Year                   Actual      Straight   depreciation
                                  depreciation     line       (deficit)
------------------------------------------------------------------------
1971............................      $10,000       $3,000       $7,000
1972............................       10,000        3,000        7,000
1973............................       10,000        3,000        7,000
1974............................       10,000        3,000        7,000
1975............................       10,000        3,000        7,000
1976............................  ............       3,000      (3,000)
1977............................  ............       3,000      (3,000)
                                 ---------------------------------------
    Total.......................       50,000       21,000       29,000
------------------------------------------------------------------------

    Example 4. Section 1250 property which has an adjusted basis of 
$108,000 is sold for $146,000 on December 31, 1972, and thus the gain 
realized is $38,000. The property was acquired on December 31, 1963. The 
applicable percentage for the period before January 1, 1970, is 12 
percent (paragraph (d)(2) of Sec.  1.1250-1) and the applicable 
percentage for the period after December 31, 1969, is 100 percent 
(paragraph (d)(1)(i)(e) of Sec.  1.1250-1). The additional depreciation 
must be computed separately for the period before January 1, 1970, and 
for the period after December 31, 1969. Assume that the additional 
depreciation for the period before January 1, 1970, is $32,000 and that 
there is a deficit in additional depreciation of $2,000 for the period 
after December 31, 1969. Accordingly, the additional depreciation for 
the period before January 1, 1970 ($32,000) is reduced to $30,000 by the 
$2,000 deficit in additional depreciation for the period after December 
31, 1969. Although section 1250(a)(1) applies to the property, none of 
the gain is recognized as ordinary income under that section since there 
is a deficit in additional depreciation for the period after December 
31, 1969. Gain is recognized under section 1250(a)(2) since there is 
remaining gain of $38,000 (that is, gain realized, $38,000, minus the 
additional depreciation attributable to periods after December 31, 1969, 
zero). Since the additional depreciation attributable to the period 
before January 1, 1970 ($30,000), is lower than the gain realized 
($38,000), the amount of gain recognized under section 1250(a)(2) is 
$3,600 (that is, 12 percent of $30,000).
    Example 5. Section 1250 property which has an adjusted basis of 
$207,000 is sold for $267,000 on February 24, 1988, and thus the gain 
realized is $60,000. The property was acquired on April 30, 1970. The 
applicable percentage for the period from April 30, 1970, through 
December 31, 1981, is 60 percent (paragraph (d)(1)(i)(c) of Sec.  
1.1250-1) and the applicable percentage for the period from January 1, 
1982, through February 24, 1988, is 100 percent (paragraph (d)(1)(i)(e) 
of Sec.  1.1250-1). The additional depreciation must be computed 
separately for the period before January 1, 1982, and for the period 
after December 31, 1981. Assume that the additional depreciation for the 
period before January 1, 1982, is $43,000 and that there is a deficit in 
additional depreciation of $6,000 for the period after December 31, 
1981. Accordingly, the additional depreciation for the period before 
January 1, 1982 ($43,000), is reduced to $37,000 by the $6,000 deficit 
for the period after December 31, 1981. There is no gain recognized 
under section 1250(a)(1) for the period after December 31, 1981, since 
there is a deficit in additional depreciation for that period. The gain 
recognized under section 1250(a)(1) for the period before January 1, 
1982, is $22,200, that is, the lower of the gain realized attributable 
to that period ($60,000) or the additional depreciation attributable to 
that period ($37,000), or $37,000, multiplied by 60 percent, the 
applicable percentage.

    (c) Property held by lessee--(1) Amount depreciation would have 
been. For purposes of paragraph (b) of this section, in case of a 
leasehold which is section 1250 property, in determining the amount the 
depreciation adjustments would have been under the straight line method 
in respect of any building or other improvement (which is section 1250 
property) erected or made on the leased property, or in respect of any 
cost of acquiring the lease, the lease

[[Page 497]]

period shall be treated as including all renewal periods. See section 
1250(b)(2). For determination of the extent to which a leasehold is 
section 1250 property, see paragraph (e)(3) of Sec.  1.1250-1.
    (2) Renewal period. (i) For purposes of this paragraph, the term 
renewal period means any period for which the lease may be renewed, 
extended, or continued pursuant to an option or options exercisable by 
the lessee (whether or not specifically provided for in the lease) 
except that the inclusion of one or more renewal periods shall not 
extend the period taken into account by more than two-thirds of the 
period on the basis of which the depreciation adjustments were allowed.
    (ii) In respect of the cost of any building erected (or other 
improvement made) on the leased property by the lessee, or in respect of 
the portion of the cost of acquiring a leasehold which is attributable 
to an existing building (or other improvement) on the leasehold at the 
time the lessee acquires the leasehold, the inclusion of one or more 
renewal periods shall not extend the period taken into account to a 
period which exceeds the useful life remaining, at the time the 
leasehold is disposed of, of such building (or such other improvement). 
Determinations under this subdivision shall be made without regard to 
the proper period under section 167 or 178 for depreciating or 
amortizing a leasehold acquisition cost or improvement.
    (iii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: Assume that a leasehold improvement with a useful life of 
30 years is properly amortized on the basis of a 10-year initial lease 
term. The lease is renewable for an additional 9 years. The period taken 
into account is 16\2/3\ years, that is, 10 years plus two-thirds of 10 
years. If, however, the leasehold improvement were disposed of at the 
end of 12 years, and if its remaining useful life were only 3 years, 
then the period taken into account would be 15 years.

    (d) Depreciation adjustments--(1) General. For purposes of this 
section, the term depreciation adjustments means, in respect of any 
property, all adjustments reflected in the adjusted basis of such 
property on account of deductions described in subparagraph (2) of this 
paragraph allowed or allowable (whether in respect of the same or other 
property) to the taxpayer or to any other person. For cases where the 
taxpayer can establish that the amount allowed for any period was less 
than the amount allowable, see subparagraph (4) of this paragraph. For 
determination of adjusted basis of property in a multiple asset account, 
see paragraph (c)(3) of Sec.  1.167(a)-8. The term depreciation 
adjustments as used in this section does not have the same meaning as 
the term adjustments reflected in the adjusted basis as defined in 
paragraph (a)(2) of Sec.  1.1245-2.
    (2) Deductions. The deductions described in this subparagraph are 
allowances (and amounts treated as allowances) for depreciation or 
amortization (other than amortization under section 168, 169 (as enacted 
by section 704(a), Tax Reform Act of 1969 (83 Stat. 667)), or 185). 
Thus, for example, such deductions include a reasonable allowance for 
exhaustion, wear, and tear (including a reasonable allowance for 
obsolesence) under section 167, the periodic deductions referred to in 
Sec.  1.162-11 in respect of a specified sum paid for the acquisition of 
a leasehold and in respect of the cost to a lessee of improvements on 
property of which he is the lessee. However, such deductions do not 
include deductions for the periodic payment of rent.
    (3) Depreciation of other taxpayers or in respect of other property. 
(i) The depreciation adjustments (reflected in the adjusted basis) 
referred to in subparagraph (1) of this paragraph (a) are not limited to 
adjustments with respect to the property disposed of, nor to those 
allowed or allowable to the taxpayer disposing of such property, and (b) 
except as provided in subparagraph (4) of this paragraph, are taken into 
account, whether allowed or allowable in respect of the same or other 
property and whether to the taxpayer or to any other person. For manner 
of determining the amount of additional depreciation after certain 
dispositions, see paragraph (e) of this section.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:


[[Page 498]]


    Example: On January 1, 1966, a calendar year taxpayer purchases for 
$100,000 a building for use in his trade or business. He takes 
depreciation deductions of $20,000 (the amount allowable), of which 
$3,000 is additional depreciation, and transfers the building to his son 
as a gift on January 1, 1968. Since the exception for gifts in section 
1250(d)(1) applies, the taxpayer does not recognize gain under section 
1250(a)(2). In the son's adjusted basis of $80,000 for the building 
there is reflected $3,000 of additional depreciation. On January 1, 
1969, after taking a depreciation deduction of $10,000 (the amount 
allowable), of which $1,000 is additional depreciation, the son sells 
the building. At the time of the sale the additional depreciation is 
$4,000 ($3,000 allowed the father plus $1,000 allowed the son).

    (4) Depreciation allowed or allowable. (i) For purposes of 
subparagraph (1) of this paragraph, generally all deductions (described 
in subparagraph (2) of this paragraph) allowed or allowable shall be 
taken into account. See section 1016(a)(2) and the regulations 
thereunder for the meaning of allowed and allowable. However, if a 
taxpayer can establish by adequate records or other sufficient evidence 
that the amount allowed for any period was less than the amount 
allowable for such period, the amount to be taken into account for such 
period shall be the amount allowed. The preceding sentence shall not 
apply for purposes of computing under paragraph (b)(1)(ii) of this 
section the amount such deductions would have been under the straight 
line method.
    (ii) The provisions of subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example: In the year 1969 it becomes necessary to determine the 
additional depreciation in respect of section 1250 property, the 
adjusted basis of which reflects a depreciation adjustment of $1,000 
with respect to depreciation deductions allowable for the calendar year 
1965 under the sum of the years-digits method. Under paragraph 
(b)(1)(ii) of this section, the depreciation which would have resulted 
under the straight line method for 1965 is $800. If the taxpayer can 
establish by adequate records or other sufficient evidence that he did 
not take, and was not allowed, any deduction for depreciation in respect 
of the property in 1965, then, for purposes of computing the 
depreciation adjustments in excess of straight line in respect of the 
property, the amount to be taken into account for 1965 as allowed or 
allowable is zero, and the amount to be taken into account in computing 
deductions which would have resulted under the straight line method in 
1965 is $800. Thus, in effect, there is a deficit in additional 
depreciation for 1965 of $800.

    (5) Retired or demolished property. Depreciation adjustments 
referred to in subparagraph (1) of this paragraph generally do not 
include adjustments in respect of retired or demolished portions of an 
item of section 1250 property. If a retired or demolished portion is 
replaced in a disposition described in section 1250(d)(4)(A) (relating 
to like kind exchanges and involuntary conversions), see paragraph 
(d)(7) of Sec.  1.1250-3.
    (6) Exempt organization. In respect of property disposed of by an 
organization which is or was exempt from income taxes (within the 
meaning of section 501(a), the depreciation adjustments (reflected in 
the adjusted basis) referred to in subparagraph (1) of this paragraph 
shall include only adjustments allowed or allowable (i) in computing 
unrelated business taxable income (as defined in section 512(a)), or 
(ii) in computing taxable income of the organization for a period during 
which it was not exempt or, by reason of the application of section 502, 
503, or 504, was denied its exemption.
    (e) Additional depreciation immediately after certain acquisitions--
(1) Zero. If on the date a person acquires property his basis for the 
property is determined solely (i) by reference to its cost (within the 
meaning of section 1012), (ii) by reason of the application of section 
301(d) (relating to basis of property received in corporate 
distribution) or section 334(a) (relating to basis of property received 
in a liquidation in which gain or loss is recognized), or (iii) under 
the rules of section 334 (b)(2) or (c) (relating to basis of property 
received in certain corporate liquidations), then on such date the 
additional depreciation for the property is zero.
    (2) Transactions referred to in section 1250(d). In the case of 
property acquired in a disposition described in section 1250(d) 
(relating to exceptions and limitations to application of section 1250), 
additional depreciation shall be computed in accordance with the rules 
prescribed in Sec.  1.1250-3.

[[Page 499]]

    (f) Records to be kept and information to be filed--(1) Records to 
be kept. In any case in which it is necessary to determine the 
additional depreciation of an item of section 1250 property, the 
taxpayer shall have available permanent records of all the facts 
necessary to determine with reasonable accuracy the amount of such 
additional depreciation, including the following:
    (i) The date, and the manner in which, the property was acquired,
    (ii) The taxpayer's basis on the date the property was acquired and 
the manner in which the basis was determined,
    (iii) The amount and date of all adjustments to the basis of the 
property allowed or allowable to the taxpayer for depreciation 
adjustments referred to in paragraph (d)(1) of this section and the 
amount and date of any other adjustments by the taxpayer to the basis of 
the property, and
    (iv) In the case of section 1250 property which has an adjusted 
basis reflecting depreciation adjustments referred to in paragraph 
(d)(1) of this section taken by the taxpayer with respect to other 
property, or by another taxpayer with respect to the same or other 
property, the information described in subdivisions (i), (ii), and (iii) 
of this subparagraph with respect to such other property or such other 
taxpayer.
    (2) Information to be filed. If a taxpayer acquires in a transaction 
(other than a like kind exchange or involuntary conversion described in 
section 1250(d)(4)) section 1250 property which has a basis reflecting 
depreciation adjustments referred to in paragraph (d)(1) of this section 
allowed or allowable to another taxpayer, then the taxpayer shall file 
with its income tax return or information return for the taxable year in 
which the property is acquired a statement showing all information 
described in subparagraph (1) of this paragraph. See section 6012 
(relating to persons required to make returns of income) and part III of 
subchapter A of chapter 61 of the Code (relating to information 
returns).

[T.D. 7084, 36 FR 273, Jan. 8, 1971, as amended by T.D. 7193, 37 FR 
12956, June 30, 1972]



Sec.  1.1250-3  Exceptions and limitations.

    (a) Exception for gifts--(1) General rule. Section 1250(d)(1) 
provides that no gain shall be recognized under section 1250(a) upon a 
disposition by gift. For purposes of this paragraph, the term gift shall 
have the same meaning as in paragraph (a) of Sec.  1.1245-4. For 
reduction in amount of charitable contribution in case of a gift of 
section 1250 property, see section 170(e) and paragraph (c)(3) of Sec.  
1.170-1.
    (2) Disposition in part a sale or exchange and in part a gift. Where 
a disposition of property is in part a sale or exchange and in part a 
gift, the disposition shall be subject to the provisions of Sec.  
1.1250-1 and the gain to which section 1250(a) applies, shall be 
computed under that section.
    (3) Treatment of property in hands of transferee. If property is 
disposed of in a transaction which is a gift:
    (i) The additional depreciation for the property in the hands of the 
transferee immediately after the disposition shall be an amount equal to 
(a) the amount of the additional depreciation for the property in the 
hands of the transferor immediately before the disposition, minus (b) 
the amount of any gain (in case the disposition is in part a sale or 
exchange and in part a gift) which would have been taken into account 
under section 1250(a) by the transferor upon the disposition if the 
applicable percentage had been 100 percent.
    (ii) For purposes of computing the applicable percentage, the 
holding period under section 1250(e)(2) of property received as a gift 
in the hands of the transferee includes the transferor's holding period,
    (iii) In case of a disposition which is in part a sale or exchange 
and in part a gift, if the adjusted basis of the property in the hands 
of the transferee exceeds its adjusted basis immediately before the 
transfer, the excess is an addition to capital account under paragraph 
(d)(2)(ii) of Sec.  1.1250-5 (relating to property with 2 or more 
elements), and
    (iv) If the property disposed of consists of two or more elements 
within the meaning of paragraph (c) of Sec.  1.1250-5, see paragraph 
(e)(1) of Sec.  1.1250-5 for the amount of additional depreciation

[[Page 500]]

and holding period for each element in the hands of the transferee.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) On May 15, 1967, Smith transfers section 1250 
property to his son for $45,000. In the hands of Smith the property had 
an adjusted basis of $40,000 and a fair market value of $70,000. Thus, 
the gain realized is $5,000 (amount realized, $45,000, minus adjusted 
basis, $40,000), and Smith has made a gift of $25,000 (fair market 
value, $70,000, minus amount realized, $45,000).
    (ii) Smith's holding period for the property is 80 full months and, 
thus, the applicable percentage under section 1250(a)(2) is 40 percent. 
The additional depreciation for the property is $10,000. Since the gain 
realized ($5,000) is lower than the additional depreciation ($10,000), 
Smith recognized as ordinary income under section 1250(a)(2) gain of 
$2,000 (that is, applicable percentage, 40 percent, multiplied by gain 
realized, $5,000) and the $3,000 remaining portion of the gain realized 
may be treated as gain from the sale of property described in section 
1231.
    (iii) On the date the son receives the property, the additional 
depreciation for the property in his hands is $5,000, that is, the 
additional depreciation for the property in the hands of the father 
immediately before the transfer ($10,000), minus the gain which would 
have been recognized under section 1250(a)(2) upon the transfer if the 
applicable percentage had been 100 percent ($5,000); for purposes of 
computing applicable percentage his holding period is his father's 
holding period of 80 full months; and under Sec.  1.1015-4 his 
unadjusted basis for the property is $45,000, that is, the amount he 
paid ($45,000) plus the excess (zero) of his father's adjusted basis 
over such amount.
    (iv) The son sells the property for $80,000 on March 15, 1968, 10 
full months after he received it from his father. Thus, his holding 
period is 90 full months (his father's holding period of 80 full months 
plus the 10 full months the son actually owned the property) and the 
applicable percentage under section 1250(a)(2) is 30 percent. Assume 
that no depreciation was allowed or allowable to the son. Thus, the 
son's adjusted basis and additional depreciation for the property on the 
date of the sale is the same as on the date he received it. Accordingly, 
the gain realized is $35,000 (selling price of $80,000, minus adjusted 
basis of $45,000). Since the additional depreciation ($5,000) is lower 
than the gain realized ($35,000), the son recognizes as ordinary income 
under section 1250(a)(2) gain of $1,500, that is, applicable percentage 
(30 percent) multiplied by additional depreciation ($5,000).
    Example 2. Assume the same facts as in example (1), except that the 
son sells the property on June 15, 1969, 25 full months after he 
received it from his father. Thus, his holding period is 105 full months 
(his father's holding period of 80 full months plus the 25 full months 
the son actually owned the property) and the applicable percentage under 
section 1250(a)(2) is 15 percent. Assume further that on the date of the 
sale the adjusted basis of the property is $39,000, and that for the 
period the son actually owned the property there is a deficit in 
additional depreciation of $2,000. Accordingly, the gain realized is 
$41,000 (selling price of $80,000, minus adjusted basis of $39,000), and 
the additional depreciation for the property is $3,000 (that is, the 
additional depreciation for the property in the hands of the son on the 
date he received it, as determined in example (1), $5,000, minus the 
amount of the deficit in additional depreciation for the period the son 
actually owned the property, ($2,000). Since the additional depreciation 
($3,000) is lower than the gain realized ($41,000), the son recognizes 
as ordinary income under section 1250(a)(2) gain of $450, that is, 
applicable percentage (15 percent) multiplied by additional depreciation 
($3,000).

    (b) Exception for transfers at death--(1) General rule. Section 
1250(d)(2) provides that, except as provided in section 691 (relating to 
income in respect of a decedent), no gain shall be recognized under 
section 1250(a) upon a transfer at death. For purposes of this 
paragraph, the term transfer at death shall have the same meaning as in 
paragraph (b) of Sec.  1.1245-4.
    (2) Treatment of transferee. (i) If as of the date a person acquires 
property from a decedent such person's basis is determined, by reason of 
the application of section 1014(a), solely by reference to the fair 
market value of the property on the date of the decedent's death or on 
the applicable date provided in section 2032 (relating to alternate 
valuation date), then (a) on the date of death the additional 
depreciation for the property is zero, and (b) for purposes of computing 
applicable percentage the holding period of the property under section 
1250(e)(1)(A) is deemed to begin on the day after the date of death.
    (ii) If property is acquired in a transfer at death to which section 
1250(d)(2) applies, the amount of the additional depreciation for the 
property in the hands of the transferee immediately after the transfer 
shall be the amount (if any) of the additional depreciation in respect 
of the property allowed the

[[Page 501]]

transferee before the decedent's death, but only to the extent that the 
basis of the property (determined under section 1014(a)) is required to 
be reduced under the second sentence of section 1014(b)(9) (relating to 
adjustments to basis where property is acquired from a decedent prior to 
his death) by depreciation adjustments referred to in paragraph (d)(1) 
of Sec.  1.1250-2 which give rise to such additional depreciation. For 
treatment of such property as having a special element with additional 
depreciation so computed, see paragraph (c)(5)(i) of Sec.  1.1250-5 
(relating to property with two or more elements). For purposes of 
determining applicable percentage, such special element shall have a 
holding period which includes the transferee's holding period for such 
property for the period before the decedent's death.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On March 6, 1966, Smith dies owning an item of section 
1250 property. On March 7, 1968, the executor distributes the property 
to Smith's son pursuant to a specific bequest of the property in Smith's 
will. Under section 1014(a)(2) and paragraph (a)(2) of Sec.  1.1014-4, 
the unadjusted basis of the property in the hands of the son is its fair 
market value on March 6, 1966 (the date Smith died), and the son is 
considered to have acquired the property on such date. Under section 
1250(e)(1)(A), the son's holding period for the property begins on March 
7, 1966 (the day after the day he is considered to have acquired the 
property). Thus, on March 7, 1968 (the date the property was distributed 
to the son), the holding period for the property is 24 full months, and 
the applicable percentage under section 1250(a)(2) is 96 percent. On 
such date, the additional depreciation for the property includes any 
additional depreciation in respect of the property for the period the 
property was possessed by the estate.
    Example 2. H purchases section 1250 property in 1965 which he 
immediately conveys to himself and W, his wife, as tenants by the 
entirety. Under local law each spouse is entitled to one-half the income 
from the property. H and W file joint income tax returns for calendar 
years 1965, 1966, and 1967. Over the 3 years, depreciation allowed in 
respect of the property was $4,000 (the amount allowable) of which $500 
is additional depreciation. One-half of these amounts are allocable to 
W. Thus, depreciation deductions of $2,000, of which $250 is additional 
depreciation, are allowable to W. On January 1, 1968, H dies and the 
entire value of the property at the date of death is included in H's 
gross estate. Since W's basis for the property (determined under section 
1014(a)) is reduced (under the second sentence of section 1014(b)(9)) by 
the $2,000 depreciation deductions allowed W before H's death of which 
$250 is additional depreciation, the additional depreciation for the 
property in the hands of W immediately after H's death is $250.

    (c) Limitation for certain tax-free transactions--(1) General. 
Section 1250(d)(3) provides that upon a transfer of property described 
in subparagraph (2) of this paragraph, the amount of gain taken into 
account by the transferor under section 1250(a) shall not exceed the 
amount of gain recognized to the transferor on the transfer (determined 
without regard to section 1250). For purposes of this subparagraph, in 
case of a transfer of both section 1250 property and nonsection 1250 
property in one transaction, the amount realized from the disposition of 
the section 1250 property shall be deemed to consist of that portion of 
the fair market value of each property acquired which bears the same 
ratio to the fair market value of such acquired property as the amount 
realized from the disposition of the section 1250 property bears to the 
total amount realized. The preceding sentence shall be applied solely 
for purposes of computing the portion of the total gain (determined 
without regard to section 1250) which shall be recognized as ordinary 
income under section 1250(a). Section 1250(d)(3) does not apply to a 
disposition of property to an organization (other than a cooperative 
described in section 521) which is exempt from the tax imposed by 
chapter 1 of the Code.
    (2) Transfers covered. The transfers described in this subparagraph 
are transfers of property in which the basis of the property in the 
hands of the transferee is determined by reference to its basis in the 
hands of the transferor by reason of the application of any of the 
following provisions:
    (i) Section 332 (relating to distributions in complete liquidation 
of an 80 percent or more controlled subsidiary corporation). For 
application of section 1250(d)(3) to such a complete liquidation, the 
principles of paragraph (c)(3) of Sec.  1.1245-4 shall apply.

[[Page 502]]

    (ii) Section 351 (relating to transfer to a corporation controlled 
by transferor).
    (iii) Section 361 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 371(a) (relating to exchanges pursuant to certain 
receivership and bankruptcy proceedings).
    (v) Section 374(a) (relating to exchanges pursuant to certain 
railroad reorganizations).
    (vi) Section 721 (relating to transfers to a partnership in exchange 
for a partnership interest).
    (vii) Section 731 (relating to distributions by a partnership to a 
partner). For special carryover basis rule, see section 1250(d)(6)(A) 
and paragraph (f)(1) of this section.
    (3) Treatment of property in hands of transferee. In the case of a 
transfer described in subparagraph (2) (other than subdivision (vii) 
thereof) of this paragraph:
    (i) The additional depreciation for the property in the hands of the 
transferee immediately after the disposition shall be an amount equal to 
(a) the amount of the additional depreciation for the property in the 
hands of the transferor immediately before the disposition, minus (b) 
the amount of additional depreciation necessary to produce an amount 
equal to the gain taken into account under section 1250(a) by the 
transferor upon the disposition (taking into account the applicable 
percentage for the property),
    (ii) For purposes of computing applicable percentage, the holding 
period under section 1250(e)(2) of the property in the hands of the 
transferee includes the transferor's holding period,
    (iii) If the adjusted basis of the property in the hands of the 
transferee exceeds its adjusted basis immediately before the transferee, 
the excess is an addition to capital account under paragraph (d)(2)(ii) 
of Sec.  1.1250-5 (relating to property with 2 or more elements), and
    (iv) If the property disposed of consists of 2 or more elements 
within the meaning of paragraph (c) of Sec.  1.1250-5, see paragraph 
(e)(1) of Sec.  1.1250-5 for the amount of additional depreciation and 
the holding period for each element in the hands of the transferee.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) Green transfers section 1250 property on March 1, 
1968, to a corporation, which is not exempt from taxation, in exchange 
for cash of $9,000 and stock in the corporation worth $91,000, in a 
transaction qualifying under section 351. Thus, the amount realized is 
$100,000 ($9,000 plus $91,000). The property has an applicable 
percentage under section 1250(a)(2) of 60 percent, an adjusted basis of 
$40,000, and additional depreciation of $20,000. The gain realized is 
$60,000, that is, amount realized ($100,000) minus adjusted basis 
($40,000). Since the additional depreciation ($20,000) is lower than the 
gain realized ($60,000), the amount of gain which would be treated as 
ordinary income under section 1250(a)(2) would be $12,000 (60 percent of 
$20,000) if the limitation provided in section 1250(d)(3) did not apply. 
Since under section 351(b) gain in the amount of $9,000 would be 
recognized to the transferor without regard to section 1250, the 
limitation provided in section 1250(d)(3) limits the gain taken into 
account by the transferor under section 1250(a)(2) to $9,000.
    (ii) The amount of additional depreciation for the property in the 
hands of the transferee immediately after the transfer is $5,000, that 
is, the amount of additional depreciation before the transfer ($20,000) 
minus the amount of additional depreciation necessary to produce an 
amount equal to the gain recognized under section 1250(a)(2) upon the 
transfer ($15,000, that is, $9,000 of gain recognized divided by 60 
percent, the applicable percentage). (If the property is subsequently 
disposed of, and for the period after the initial transfer there is 
additional depreciation in respect of the property, then at the time of 
the subsequent disposition the additional depreciation will exceed 
$5,000. If, however, for the period after the initial transfer there was 
a deficit in additional depreciation, then at the time of the subsequent 
disposition the additional depreciation would be less than $5,000.)
    Example 2. (i) Assume the same facts as in example (1) except that 
the additional depreciation is $10,000. Since additional depreciation 
($10,000) is lower than the gain realized ($60,000), the amount of gain 
which would be treated as ordinary income under section 1250(a)(2) would 
be $6,000 (60 percent of $10,000) if the limitation provided in section 
1250(d)(3) did not apply. Since under section 351(b) gain in the amount 
of $9,000 would be recognized to the transferor without regard to 
section 1250, the limitation under section 1250(d)(3) does not prevent 
treatment of the entire $6,000 as ordinary income under section 
1250(a)(2). The $3,000 remaining portion of the $9,000 gain may be 
treated as gain

[[Page 503]]

from the sale of property described in section 1231.
    (ii) Immediately after the transfer, the amount of additional 
depreciation is zero, that is, the amount of additional depreciation 
before the transfer ($10,000) minus the amount of additional 
depreciation necessary to produce an amount equal to the gain taken into 
account under section 1250(a)(2) upon the transfer ($10,000) that is, 
$6,000 divided by 60 percent.
    Example 3. (i) Miller transfers section 1250 property after December 
31, 1969, to a corporation, which is not exempt from taxation, in 
exchange for cash of $9,000 and stock in the corporation worth $31,000, 
in a transaction qualifying under section 351. Thus, the amount realized 
is $40,000 ($9,000 plus $31,000). The property has an applicable 
percentage under paragraph (d)(1)(i)(e) of this section of 100 percent 
and an applicable percentage under paragraph (d)(2) of this section of 
50 percent. The adjusted basis of the property on the date of the 
transfer is $24,000, and the gain realized is $16,000 (that is, amount 
realized, $40,000, minus adjusted basis, $24,000). The additional 
depreciation attributable to periods after December 31, 1969, is $8,000 
and the additional depreciation attributable to periods before January 
1, 1970, is $12,000. Since the additional depreciation attributable to 
periods after December 31, 1969 ($8,000), is lower than the gain 
realized ($16,000), the amount of gain which would be recognized as 
ordinary income under section 1250(a)(1) would be $8,000 (100 percent of 
$8,000) if the limitation provided in section 1250(d)(3) did not apply. 
In addition, gain is recognized under section 1250(a)(2) since there is 
a remaining potential gain of $8,000 (that is, gain realized, $16,000, 
minus additional depreciation attributable to periods after December 31, 
1969 ($8,000)). Since the remaining potential gain ($8,000) is lower 
than the additional depreciation attributable to periods before January 
1, 1970 ($12,000), the amount of gain which would be recognized under 
section 1250(a)(2) would be $4,000 (50 percent of $8,000) if the 
limitation in section 1250(d)(3) did not apply. Since under section 
351(b) gain in the amount of $9,000 would be recognized to the 
transferor without regard to section 1250, the limitation in section 
1250(d)(3) limits the gain taken into account by the transferor under 
section 1250(a) to $9,000. Since the section 1250(a)(1) gain is 
considered as recognized first under paragraph (a)(1)(iii) of Sec.  
1.1250-1, of the $9,000 of gain recognized, $8,000 is recognized under 
section 1250(a)(1) and $1,000 is recognized under section 1250(a)(2).
    (ii) The amount of additional depreciation for the property in the 
hands of the transferee immediately after the transfer is $10,000, the 
amount of additional depreciation immediately before the transfer 
($20,000), minus the sum of (a) the amount of additional depreciation 
necessary to produce an amount equal to the gain recognized under 
section 1250(a)(1) upon the transfer, $8,000 (that is, gain recognized 
under section 1250(a)(1), $8,000, divided by 100 percent, the applicable 
percentage under section 1250(a)(1)), plus (b) the amount of additional 
depreciation necessary to produce an amount equal to the gain recognized 
under section 1250(a)(2) upon the transfer, $2,000 (that is, gain 
recognized under section 1250(a)(2), $1,000, divided by 50 percent, the 
applicable percentage under section 1250(a)(2)). Of this amount, zero 
(that is, $8,000 minus $8,000) is attributable to periods after December 
31, 1969, and $10,000 ($12,000 minus $2,000) is attributable to periods 
before January 1, 1970.

    (d) Limitation for like kind exchanges and involuntary conversions--
(1) Limitation on gain. (i) Under section 1250(d)(4)(A), if property is 
disposed of and gain (determined without regard to section 1250) is not 
recognized in whole or in part under section 1031 (relating to like kind 
exchanges) or section 1033 (relating to involuntary conversions), then 
the amount of gain taken into account by the transferor under section 
1250(a) shall not exceed the greater of the two limitations set forth in 
subdivisions (ii) and (iii) of this subparagraph. Immediately after the 
transfer the basis of the acquired property shall be determined under 
subparagraph (2), (3), or (4) (whichever is applicable) of this 
paragraph, and its additional depreciation shall be computed under 
subparagraph (5) of this paragraph. The holding period of the acquired 
property for purposes of computing applicable percentage, which is 
determined under section 1250(e)(1), does not include the holding period 
of the property disposed of. In the case of a disposition of section 
1250 property and other property in one transaction, see subparagraph 
(6) of this paragraph. In case of a disposition described in section 
1250(d)(4)(A) of a portion of this item of property, see subparagraph 
(7) of this paragraph.
    (ii) For purposes of this subparagraph, the first limitation is the 
sum of:
    (a) The amount of gain recognized on the disposition under section 
1031 or 1033 (determined without regard to section 1250), plus
    (b) An amount equal to the cost of any stock purchased in a 
corporation which (without regard to section 1250)

[[Page 504]]

would result in nonrecognition of gain under section 1033(a)(3)(A).
    (iii) For purposes of this subparagraph, the second limitation is 
the excess (if any) of:
    (a) The amount of gain which would (without regard to section 
1250(d)(4)) be taken into account under section 1250(a), over
    (b) The fair market value (or cost in the case of a transaction 
described in section 1033(a)(3)) of the section 1250 property acquired 
in the transaction.
    (iv) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: A taxpayer receives $96,000 of insurance proceeds upon the 
destruction of section 1250 property by fire. If section 1250(d)(4)(A) 
did not apply to the disposition, $16,000 of gain would be recognized 
under section 1250(a). In acquisitions qualifying under section 
1033(a)(3)(A), he uses $90,000 of the proceeds to purchase property 
similar or related in service or use to the property destroyed, of which 
$42,000 is for one item of section 1250 property and $48,000 is for one 
piece of land, and $5,000 of the proceeds to purchase stock in the 
acquisition of control of a corporation owning property similar or 
related in service or use to the property destroyed. The taxpayer 
properly elects under section 1033(a)(3)(A) and the regulations 
thereunder to limit recognition of gain (determined without regard to 
section 1250) to $1,000, that is, the excess of the amount realized from 
the conversion ($96,000) over the cost of the property acquired in 
acquisitions qualifying under section 1033(a)(3)(A) ($95,000, that is, 
$90,000 plus $5,000). The amount of gain recognized under section 
1250(a) is $6,000, determined in the following manner:

The first limitation:
  (a) Amount of gain recognized under section 1033(a)(3),         $1,000
   determined without regard to section 1250(a).............
  (b) Fair market value of stock in a corporation which            5,000
   qualifies under section 1033(a)(3)(A)....................
                                                             -----------
  (c) Sum of (a) plus (b)...................................       6,000
The second limitation:
  (d) Amount of gain which would be recognized under section      16,000
   1250(a) if section 1250(d)(4) did not apply..............
  (e) Cost of section 1250 property acquired in transaction.      42,000
                                                             ===========
    (f) Excess of (d) over (e)..............................           0
 


Since the first limitation ($6,000) exceeds the second limitation 
(zero), the amount of gain recognized under section 1250(a) is $6,000. 
The balance ($10,000) of the gain realized ($16,000) is not recognized.

    (2) Basis of property purchased upon involuntary conversion into 
money. (i) If section 1250 property is purchased in a compulsory or 
involuntary conversion to which section 1033(a)(3) applies, and if by 
reason of the application of section 1250(d)(4)(A) all or part of the 
gain computed under section 1250(a) is not taken into account, then the 
basis of the section 1250 property and other purchased property shall be 
determined under the rules prescribed in this subparagraph. See section 
1250(d)(4)(D).
    (ii) The total basis of all purchased property, the acquisition of 
which results in the nonrecognition of any part of the gain realized 
upon the transaction, shall be (a) its cost, reduced by (b) the portion 
of the total gain realized which was not recognized. To the extent that 
section 1250(d)(4)(A)(i) prevents the purchase of stock from resulting 
in nonrecognition of gain, the basis of purchased stock is its cost.
    (iii) If purchased property consists of both section 1250 property 
and other property, the total basis computed under subdivision (ii) of 
this subparagraph shall be allocated between the section 1250 property 
(treated as a class) and the other property (treated as a class) in 
proportion to their respective costs, except that for purposes of this 
subdivision (but not subdivision (iv) of this subparagraph) the cost of 
the section 1250 property shall be deemed to be the excess of (a) its 
actual cost, over (b) the gain not taken into account under section 
1250(a) by reason of the application of section 1250(d)(4)(A).
    (iv) If the property acquired consists of more than one item of 
section 1250 property (or of more than one item of other property), the 
total basis of the section 1250 property (or of the other property), as 
computed under subdivisions (ii) and (iii) of this subparagraph, shall 
be allocated to each item of section 1250 property (or other property) 
in proportion to their respective actual costs.
    (v) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. Assume the same facts as in the example in subparagraph 
(1)(iv) of this paragraph. Assume further that the portion of the gain 
realized which was not recognized

[[Page 505]]

under section 1033(a)(3) or 1250(a) upon the transaction is $60,000, of 
which the gain computed under section 1250(a) which is not taken into 
account by reason of the application of section 1250(d)(4)(A) is 
$10,000, that is, the excess of the gain which would have been 
recognized under section 1250(a) if section 1250(d)(4)(A) did not apply 
($16,000) over the gain recognized under section 1250(a) ($6,000). In 
such example $95,000 of proceeds were used to purchase property in 
acquisitions qualifying under section 1033(a)(3)(A) of which $42,000 was 
for section 1250 property, $48,000 for land, and $5,000 for stock in a 
corporation. The basis of each acquired property is determined in the 
following manner:
    (a) Under subdivision (ii) of this subparagraph, the total basis of 
the acquired properties (other than the stock) is $30,000, that is, 
their cost ($90,000, of which $42,000 is for section 1250 property and 
$48,000 is for land), reduced by the portion of the total gain realized 
which was not recognized ($60,000).
    (b) Under subdivision (iii) of this subparagraph, such total basis 
is allocated between the section 1250 property and the land in 
proportion to their respective costs, and for this purpose the cost of 
the section 1250 property is considered to be $32,000, that is, its 
actual cost ($42,000) minus the gain not recognized under section 
1250(a) by reason of the application of section 1250(d)(4)(A) ($10,000). 
Thus, the basis of the section 1250 property is $12,000 (32/80 of 
$30,000), and the basis of the land is $18,000 (48/80 of $30,000).
    (c) The basis of the purchased stock is its cost of $5,000. See last 
sentence of subdivision (ii) of this subparagraph.
    Example 2. Assume the same facts as in example (1) except that the 
section 1250 property purchased for $42,000 consists of 2 items of such 
property ($10,500 for C, and $31,500 for D), and that the land purchased 
for $48,000 consists of 2 pieces of land ($12,000 for X, and $36,000 for 
Y). Under subdivision (iv) of this subparagraph, the total basis for 
each class of property is allocated between the individual properties of 
such class in proportion to their respective actual costs. Thus, the 
total basis of $12,000, as determined in example (1), for the section 
1250 property is allocated as follows:

To C: $12,000 x ($10,500/$42,000)...........................      $3,000
To D: $12,000 x ($31,500/$42,000)...........................       9,000
                                                             -----------
    Total...................................................      12,000
 


The total basis of $18,000, as determined in example (1), for the land 
is allocated as follows:

To X: $18,000 x ($12,000/$48,000)...........................      $4,500
To Y: $18,000 x ($36,000/$48,000)...........................      13,500
                                                             -----------
    Total...................................................      18,000
 

    (3) Basis of property acquired upon involuntary conversion into 
similar property. If property is involuntarily converted into property 
similar or related in service or use in a transaction to which section 
1033(a)(1) applies, and if by reason of the application of section 
1250(d)(4)(A) all or part of the gain computed under section 1250(a) is 
not taken into account, then:
    (i) The total basis of the acquired property shall be determined 
under the first sentence of section 1033(c), and
    (ii) If more than one item of property is acquired, such total basis 
shall be allocated to the individual items of property acquired in 
accordance with the principles prescribed in subparagraph (2) (iii) and 
(iv) of this paragraph, except that an amount equivalent to the fair 
market value of each item of property on the date acquired shall be 
treated as its actual cost.
    (4) Basis of property acquired in like kind exchange. If section 
1250 property is transferred in an exchange described in section 1031 
(a) or (b), and if by reason of the application of section 1250(d)(4)(A) 
all or part of the gain computed under section 1250(a) is not taken into 
account, then:
    (i) The total basis of the property (including nonsection 1250 
property) acquired of the type permitted to be received under section 
1031 without recognition of gain or loss shall be determined under 
section 1031(d), and
    (ii) If more than one item of property of such type was received, 
such total basis shall be allocated to the individual items of property 
of such type in accordance with the principles prescribed in 
subparagraph (2) (iii) and (iv) of this paragraph, except that an amount 
equivalent to the fair market value of each such item of property on the 
date received shall be treated as its actual cost.
    (5) Additional depreciation for property acquired in like kind 
exchange or involuntary conversion. (i) If property is disposed of in a 
transaction described in section 1031 or 1033, and if by reason of the 
application of section 1250(d)(4)(A) all or part of the gain computed 
under section 1250(a) is not taken into account, then the additional 
depreciation for the acquired property immediately after the transaction 
(as computed under section 1250(d)(4)(E)) shall be an amount equal to 
the amount of gain computed under section 1250(a) which

[[Page 506]]

was not taken into account by reason of the application of section 
1250(d)(4)(A).
    (ii) In case more than one item of section 1250 property is acquired 
in the transaction, the additional depreciation computed under 
subdivision (i) of this subparagraph shall be allocated to each such 
item of section 1250 property in proportion to their respective adjusted 
bases.
    (iii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. (a) On January 15, 1969, section 1250 property X is 
condemned and proceeds of $100,000 are received. On such date, X's 
adjusted basis is $25,000, the additional depreciation is $10,000, and 
the applicable percentage under section 1250(a)(2) is 70 percent. Since 
the additional depreciation ($10,000) is less than the gain realized 
($75,000, that is, $100,000 minus $25,000) the amount of gain computed 
under section 1250(a)(2) (without regard to section 1250(d)(4)(A)) is 
$7,000, that is, 70 percent of $10,000.
    (b) On March 1, 1969, all the proceeds are used to purchase section 
1250 property Y in a transaction qualifying under section 1033(a)(3)(A) 
for nonrecognition of gain. Accordingly, the gain not recognized by 
reason of the application of section 1033(a)(3)(A) is $75,000, of which 
$7,000 is gain computed under section 1250(a)(2) which is not taken into 
account by reason of the application of section 1250(d)(4)(A). See 
subparagraph (1) of this paragraph.
    (c) Immediately after the transaction, Y's basis is $25,000, that 
is, its cost ($100,000) minus the total gain realized which was not 
recognized ($75,000), and the additional depreciation (as computed under 
section 1250(d)(4)(E)) is $7,000, that is, the amount of gain not taken 
into account under section 1250(a)(2) by reason of the application of 
section 1250(d)(4)(A).
    (d) On December 15, 1969, before any depreciation deductions were 
allowed or allowable in respect of Y, Y is sold for $90,000. Under 
section 1250(e)(1), the holding period of Y is 9 months, and thus, under 
section 1250(a)(2), the applicable percentage is 100 percent. Since the 
additional depreciation ($7,000) is less than the gain realized 
($65,000, that is $90,000 minus $25,000), the amount of gain recognized 
under section 1250(a)(2) as ordinary income is $7,000, that is, 100 
percent of $7,000.
    Example 2. Assume the same facts as in example (1), except that 
property Y was purchased on June 15, 1962, and that 90 full months 
thereafter, or December 15, 1969, it is sold for $35,000. Thus the 
applicable percentage under section 1250(a)(2) is 30 percent. Assume 
further that at the time of such sale Y's adjusted basis is $5,000 and 
additional depreciation in respect of Y for periods after it was 
acquired is $2,500. Thus, the additional depreciation at the time of the 
sale is $9,500, that is, the sum of the additional depreciation in 
respect of Y attributable to X as computed under section 1250(d)(4)(E) 
in (c) of example (1) ($7,000), plus the additional depreciation 
attributable to periods after Y was acquired ($2,500). Since the 
additional depreciation ($9,500) is less than the gain realized 
($30,000, that is, $35,000 minus $5,000), the gain recognized under 
section 1250(a)(2) as ordinary income is $2,850, that is, 30 percent of 
$9,500.

    (6) Single disposition of section 1250 property and property of 
different class. (i) For purposes of this subparagraph:
    (a) Section 1250 property, section 1245 property (as defined in 
section 1245(a)(3)), and other property shall each be treated as a 
separate class of property, and
    (b) The term qualifying property means property which may be 
acquired without recognition of gain under the applicable provision of 
section 1031 or 1033 (applied without regard to section 1250 or 1245) 
upon the disposition of property.
    (ii) If upon a sale of section 1250 property gain would be 
recognized under section 1250(a) and if such section 1250 property 
together with property of a different class or classes are disposed of 
in one transaction in which gain is not recognized in whole or in part 
under section 1031 or 1033 (without regard to sections 1245 and 1250), 
then:
    (a) The total amount realized shall be allocated between the 
different classes of property disposed of in proportion to their 
respective fair market values,
    (b) The amount realized upon the disposition of property of a class 
shall be deemed to consist of so much of the fair market value of 
qualifying property of the same class acquired as is not in excess of 
the amount realized from the property of such class disposed of,
    (c) The remaining portion (if any) of the amount realized upon the 
disposition of property of such class shall be deemed to consist of so 
much of the fair market value of any other property acquired as is not 
in excess of such remaining portion, and
    (d) For purposes of applying (c) of this subdivision, the fair 
market value

[[Page 507]]

of acquired property shall be taken into account only once and in such 
manner as the taxpayer determines.
    (iii) The amounts determined under this subparagraph in respect of 
property shall apply for all purposes of the Code.
    (iv) The application of this subparagraph may be illustrated by the 
following example:

    Example: (a) Green owns property consisting of land and a fully 
equipped factory building thereon. The property is condemned and 
proceeds of $100,000 are received. If the property were sold for 
$100,000, gain of $40,000 would be recognized of which $10,000 would be 
recognized as ordinary income under section 1250(a). Proceeds of $95,000 
are used to purchase property similar or related in service or use to 
the condemned property and under section 1033(a)(3)(A) (without regard 
to sections 1245 and 1250) recognition of gain is limited to $5,000. The 
fair market values by classes of the property disposed of, and of the 
property acquired, are summarized in the table below:

------------------------------------------------------------------------
                                           Fair market value of property
                                         -------------------------------
                                            Disposed of      Acquired
------------------------------------------------------------------------
Section 1245 property...................         $35,000         $55,000
Section 1250 property...................          45,000          28,000
Land....................................          20,000          12,000
Cash....................................  ..............           5,000
                                         -------------------------------
                                                 100,000         100,000
------------------------------------------------------------------------

    (b) The allocations under subdivision (ii) of this subparagraph are 
summarized in the table below:

----------------------------------------------------------------------------------------------------------------
                                                             Property acquired
         Property disposed of         ---------------------------------------------------------------    Cash
                                          Sec. 1245 Property       Sec. 1250 Property        Land      Remaining
----------------------------------------------------------------------------------------------------------------
$35,000 of section 1245 property.....                  $35,000  .......................  ...........  ..........
$45,000 of section 1250 property.....               \1\ 17,000                  $28,000  ...........  ..........
$20,000 of land......................                \1\ 3,000  .......................      $12,000  \1\ $5,000
                                      --------------------------------------------------------------------------
 Total...............................                   55,000                   28,000       12,000       5,000
----------------------------------------------------------------------------------------------------------------
\1\ Determined by taxpayer pursuant to subdivision (ii)(d) of this subparagraph.

    (c) Upon the disposition of the section 1245 property, only section 
1245 property is acquired, and thus gain (if any) would not be 
recognized under section 1245(a)(1). See section 1245(b)(4). Upon the 
disposition of the section 1250 property gain under section 1250(a) 
would not be recognized by reason of the application of section 
1250(d)(4)(A). See subparagraph (1) of this paragraph. If the gain 
realized on the disposition of the land is not less than $5,000, then 
under section 1033(a)(3)(A) the gain recognized would be $5,000, that 
is, an amount equal to the portion of the proceeds from the disposition 
of the land ($5,000) not invested in qualifying property.

    (7) Disposition of portion of property. A disposition described in 
section 1250(d)(4)(A) of a portion of an item of property gives rise to 
an addition to capital account described in the last sentence of 
paragraph (d)(2)(i) of Sec.  1.1250-5 (relating to property with 2 or 
more elements). If the addition to capital account is a separate 
improvement within the meaning of paragraph (d) of Sec.  1.1250-5, and 
thus an element, then immediately after the addition is made the amount 
of additional depreciation for such separate improvement shall be 
computed under subparagraph (5) of this paragraph by treating such 
portion and such addition as separate properties. If the addition is not 
a separate improvement, then immediately after the addition is made such 
property is considered under paragraph (c)(5)(ii) of Sec.  1.1250-5 as 
having a special element with the same amount of additional depreciation 
so computed. For purposes of computing applicable percentage, the 
holding period of the separate improvement or special element (as the 
case may be), which is determined under section 1250(e)(1), does not 
include the holding period of the property disposed of.
    (e) Sections 1071 and 1081 transactions--(1) General. This paragraph 
prescribes regulations under section 1250(d)(5) which apply in the case 
of a disposition of section 1250 property in a transaction in which gain 
(determined without regard to section 1250) is not recognized in whole 
or in part by reason of the application of section 1071 (relating to 
gain from sale or exchange to effectuate policies of FCC) or section 
1081 (relating to gain from sale or exchange in obedience to order of 
SEC).

[[Page 508]]

    (2) Involuntary conversion treatment under section 1071. If section 
1250 property is disposed of and gain (determined without regard to 
section 1250) is not recognized in whole or in part solely by reason of 
an election under the first sentence of section 1071(a) to treat the 
transaction as an involuntary conversion, the consequences of the 
transaction shall be determined under the principles of paragraph (d) of 
this section.
    (3) Basis reduction under sections 1071 or 1082(a)(2). (i) If 
section 1250 property is disposed of and gain (determined without regard 
to section 1250) is not recognized in whole or in part by reason of a 
reduction in basis of property pursuant to an election under section 
1071(a) or the application of section 1082(a)(2), then the amount of 
gain taken into account by the transferor under section 1250(a) shall 
not exceed the sum of:
    (a) The amount of gain recognized on such disposition (determined 
without regard to section 1250), plus
    (b) In case involuntary conversion treatment was also elected under 
section 1071(a), an amount equal to the cost of any stock purchased in a 
corporation which (without regard to section 1250) would result in 
nonrecognition of gain under section 1033(a)(3), as modified by section 
1071(a), plus
    (c) The portion of the gain computed under section 1250(a) (without 
regard to this paragraph) which is neither taken into account under (a) 
or (b) of this subdivision nor applied under subdivision (ii) of this 
subparagraph to reduce the basis of section 1250 property.
    (ii)(a) The amount of gain computed under section 1250(a) (without 
regard to this paragraph) which is not taken into account under 
subdivision (i) (a) or (b) of this subparagraph shall be applied to the 
amount by which the basis of the section 1250 property was reduced under 
section 1071(a) or 1082(a)(2), as the case may be, before other gain 
(which is not gain computed under section 1250(a)) is so applied.
    (b) If the basis of more than one item of section 1250 property was 
so reduced, the gain applied under (a) of this subdivision to all such 
section 1250 properties shall be applied to such items in proportion to 
the amounts of their respective basis reductions.
    (c) Any gain not applied under (a) of this subdivision shall be 
applied to the amount by which the basis of the nonsection 1250 property 
was reduced.
    (iii) If gain computed under section 1250 is applied under 
subdivision (ii) of this subparagraph to reduce the basis of section 
1250 property, the amount so applied shall be treated as additional 
depreciation in respect of such section 1250 property. For treatment of 
such section 1250 property as having a special element with additional 
depreciation consisting of such amount, see paragraph (c)(5)(i) of Sec.  
1.1250-5. For purposes of computing applicable percentage, such special 
element shall have a holding period beginning on the day after the date 
as of which the property's basis was so reduced.
    (4) Section 1081(d)(1)(A) transaction. No gain shall be recognized 
under section 1250(a) upon an exchange of property as to which gain is 
not recognized (without regard to section 1250) because of the 
application of section 1081(d)(1)(A) (relating to transfers within 
system group). For treatment of property in the hands of a transferee, 
the principles of paragraph (c)(3) of this section shall apply.
    (f) Property distributed by a partnership to a partner--(1) General. 
For purposes of section 1250 (d)(3) and (e)(2), the basis of section 
1250 property distributed by a partnership to a partner shall be 
determined by reference to the adjusted basis of such property to the 
partnership. Thus, if section 731 applies to a distribution of section 
1250 property by a partnership to a partner, then even though the 
partner's basis is not determined for other purposes by reference to the 
partnership's basis, (i) the amount of gain taken into account by the 
partnership under section 1250(a) is limited by section 1250(d)(3) to 
the amount of gain recognized to the partnership upon the distribution 
(determined without regard to section 1250), and (ii) the holding period 
of the property in the hands of the partner shall, under section 
1250(e)(2), include the holding period of the property in the hands of 
the partnership. For nonapplication of section 1250(d)(3) to a 
disposition to an organization (other

[[Page 509]]

than a cooperative described in section 521) which is exempt from the 
tax imposed by chapter 1 of the Code, see paragraph (c)(1) of this 
section.
    (2) Treatment of property distributed by partnership. (i) If section 
1250 property is distributed by a partnership to a partner in a 
distribution in which no part of the partnership's potential section 
1250 income in respect of the property was recognized as ordinary income 
to the partnership under paragraph (b)(2)(ii) of Sec.  1.751-1, the 
additional depreciation for the property in the hands of the distributee 
attributable to periods before the distribution shall be an amount equal 
to the total potential section 1250 income of the partnership in respect 
of the property immediately before the distribution, recomputed as if 
the applicable percentage for the property had been 100 percent. Under 
paragraph (c)(4) of Sec.  1.751-1, the potential section 1250 income is, 
in effect, the gain to which section 1250(a) would have applied if the 
property had been sold by the partnership immediately before the 
distribution at its fair market value at such time.
    (ii) If upon the distribution any potential section 1250 income in 
respect of the property was recognized to the partnership under 
paragraph (b)(2)(ii) of Sec.  1.751-1, then after the distribution the 
additional depreciation shall be an amount equal to (a) the total 
potential section 1250 income in respect of the property, as recomputed 
in subdivision (i) of this subparagraph, minus (b) the amount of 
potential section 1250 income which would have been recognized to the 
partnership under paragraph (b)(2)(ii) of Sec.  1.751-1 if the 
applicable percentage for the property had been 100 percent.
    (iii) If the partner's basis for the property immediately after the 
transaction exceeds the partnership's adjusted basis for the property 
immediately before the transaction, the excess may be an addition to 
capital account under paragraph (d)(2)(ii) of Sec.  1.1250-5 (relating 
to property with two or more elements).
    (3) Examples. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. (i) A partnership distributes a building to Smith on 
January 1, 1969, in a complete liquidation of his partnership interest 
to which section 736(a) does not apply. On the date of the distribution, 
the partnership's holding period for the property is 40 full months and, 
accordingly, the applicable percentage under section 1250(a)(2) is 80 
percent. On such date, the partnership's additional depreciation for the 
building ($6,250) is lower than the excess ($40,000) of its fair market 
value ($140,000) over adjusted basis ($100,000). Thus, under paragraph 
(c)(4) of Sec.  1.751-1, the partnership's potential section 1250 income 
in respect of the building is $5,000 (80 percent of $6,250). Assume that 
section 751(b) does not apply to the distribution. Accordingly, no gain 
would be recognized to the partnership under section 731(b) (without 
regard to the application of section 1250). Smith's basis for his 
partnership interest was $150,000, and under section 732(b) Smith's 
basis for the building is equal to his basis for his partnership 
interest. Thus, Smith's basis for the building is not determined by 
reference to the partnership's basis for the building. Nevertheless, 
under subparagraph (1) of this paragraph, no gain is recognized to the 
partnership under section 1250(a)(2) and Smith's holding period for the 
property includes the partnership's holding period.
    (ii) Six full months after Smith received the building in the 
distribution, or July 1, 1969, he sells it for $153,000. Assume that no 
depreciation was allowed or allowable to Smith for the building, and 
that the special rules under Sec.  1.1250-5 for property with two or 
more elements do not apply. Since Smith's holding period for the 
building includes its holding period in the hands of the partnership, 
his holding period is 46 full months (40 full months for the partnership 
plus 6 full months for Smith) and the applicable percentage under 
section 1250(a)(2) is 74 percent.
    (iii) Since no potential section 1250 income was recognized to the 
partnership under paragraph (b)(2)(ii) of Sec.  1.751-1, the additional 
depreciation for the building attributable to periods before the 
distribution is determined under the provisions of subparagraph (2)(i) 
of this paragraph. Under such provisions, the potential section 1250 
income to the partnership, which was actually $5,000 (that is, 80 
percent of $6,250), is recomputed as if the applicable percentage were 
100 percent, and thus such additional depreciation is $6,250 (that is, 
100 percent of $6,250). Since no depreciation was allowed or allowable 
for the building in Smith's hands, the additional depreciation for the 
building attributable to Smith's total holding period (46 full months) 
is $6,250. Since the gain realized ($3,000, that is, amount realized, 
$153,000, minus adjusted basis, $150,000), is lower than the additional 
depreciation ($6,250), the gain recognized to Smith under section 
1250(a)(2) is $2,220 (that is, 74 percent of $3,000).

[[Page 510]]

    Example 2. Assume the facts as in example (1) except that as a 
result of the distribution the partnership recognizes under paragraph 
(b)(2)(ii) of Sec.  1.751-1 potential section 1250 income of $1,000 
(that is, 80 percent of $1,250). The additional depreciation 
attributable to periods before the distribution, as determined under the 
provisions of subparagraph (2)(ii) of this paragraph, is $5,000, that 
is, (a) the total potential section 1250 income in respect of the 
property, recomputed in example (1) as if the applicable percentage were 
100 percent ($6,250), minus (b) the amount of potential section 1250 
income which would have been recognized to the partnership under 
paragraph (b)(2)(ii) of Sec.  1.751-1 if the applicable percentage for 
the property had been 100 percent ($1,250, that is, 100 percent of 
$1,250).

    (4) Treatment of partnership property after certain transactions. If 
under paragraph (b)(3) of Sec.  1.751-1 (relating to certain 
distributions of partnership property other than section 751 property 
treated as sales or exchanges) a partnership is treated as purchasing 
section 1250 property (or a portion thereof) from a distributee who 
relinquishes his interest in such property (or portion), then after the 
date of such purchase the following rules shall apply:
    (i) If only a portion of the property is treated as purchased, there 
shall be excluded from the additional depreciation for the remaining 
portion any additional depreciation in respect of the purchased portion 
for periods before such purchase.
    (ii) In respect of the purchased property (or portion), (a) as of 
the date of purchase the amount of additional depreciation shall be 
zero, and (b) for purposes of computing applicable percentage the 
holding period shall begin on the day after the date of such purchase.
    (5) Cross reference. See paragraph (f) of Sec.  1.1250-1 for the 
amount of additional depreciation for partnership property in respect of 
a partner who acquired his partnership interest in certain transactions 
when an election under section 754 (relating to optional adjustments to 
basis of partnership property) was in effect.
    (g) Disposition of principal residence--(1) In general. (i) Section 
1250(d)(7)(A) provides that section 1250(a) shall not apply to a 
disposition of property by a taxpayer to the extent the property is used 
by the taxpayer as his principal residence (within the meaning of 
section 1034(a) and the regulations thereunder, relating to a sale or 
exchange of residence). Thus, for example, if a doctor sells a house, of 
which one portion was used as his principal residence within the meaning 
of section 1034(a) and the other portion was properly subject to the 
allowance for depreciation as property used in his trade or business, 
then, by reason of the application of section 1250(d)(7)(A), section 
1250(a) does not apply in respect of the disposition of the portion used 
as his principal residence. The provisions of this subparagraph shall 
apply regardless of whether section 1034 applies. Thus, for example, if 
section 1034 did not apply to the sale because the doctor did not invest 
in a new principal residence within the period specified in section 
1034, nevertheless section 1250(a) would not apply to the disposition of 
the portion used as a principal residence.
    (ii) Section 1250(d)(7)(B) provides that section 1250(a) shall not 
apply to a disposition of section 1250 property by a taxpayer who, in 
respect of the property, satisfies the age and ownership requirements of 
section 121 (relating to exclusion from gross income of gain on sale or 
exchange of residence of individual who has attained age 65), but only 
to the extent the taxpayer satisfies the use requirements of section 121 
in respect of such property. Thus, if a taxpayer has attained the age of 
65 before the date on which he disposes of section 1250 property, and if 
during the 8-year period ending on the date of the disposition the 
property has been owned and used by the taxpayer solely as his principal 
residence for periods aggregating 5 years or more, then section 1250(a) 
does not apply in respect to the disposition. This result would not be 
changed even if the taxpayer does not or cannot make the election 
provided for in section 121 and even if section 121 applies to only a 
portion of the gain because the adjusted sales price exceeds the $20,000 
limitation in section 121(b)(1). If, however, only a portion of the 
property has been used as his principal residence for such periods 
aggregating 5 years or more, then, by reason of the application of 
section 1250(d)(7)(B), section 1250(a) is inapplicable only to the 
portion so used. For special rules for determining whether

[[Page 511]]

the age, ownership, and use requirements of section 121 are treated as 
satisfied, and for the manner of applying such requirements, see section 
121(d) and the regulations thereunder.
    (2) Concurrent operation of section 1250(d)(7) with other 
provisions. Upon the disposition of a principal residence, gain computed 
under section 1250(a) may not be recognized in whole or in part by 
reason of the application of both the provisions of section 1250(d)(7) 
and the provisions of one of the other exceptions or limitations 
enumerated in section 1250(d). Thus, for example, if an entire house is 
transferred as a gift, and if section 1250(d)(7) applies to only a 
portion of the house, then section 1250(d)(1) excepts the disposition of 
the entire house from the application of section 1250(a).
    (3) Special rule. If by reason of section 1250(d)(7) a disposition 
is partially excepted from the application of section 1250(a), and if no 
other paragraph of section 1250(d) excepts the disposition entirely from 
such application, then the gain to which section 1250(a) applies shall 
be an amount which bears the same ratio to (i) the gain computed under 
section 1250(a) (without regard to section 1250(d)(7)), as (ii) the fair 
market value of the portion of the property to which the exception in 
section 1250(d)(7) does not apply, bears to (iii) the total fair market 
value of the property. Thus, for example, if under paragraph (a)(2) of 
this section gain of $300 would be recognized as ordinary income under 
section 1250(a) (without regard to section 1250(d)(7)) upon a combined 
sale and gift of section 1250 property, and if the property has a fair 
market value of $25,000 of which $10,000 is properly allocable to a 
portion not used as a principal residence, then the amount of gain 
recognized as ordinary income under section 1250(a) would be $120 (10/25 
of $300).
    (4) Treatment of property in hands of transferee. If property is 
disposed of in a transaction to which section 1250(d)(7) applies, and if 
its basis in the hands of the transferee is determined by reference to 
its basis in the hands of the transferor by reason of the application of 
section 1250(d)(1) (relating to gifts) or section 1250(d)(3) (relating 
to certain tax-free transactions), then the treatment of the property in 
the hands of the transferee shall be determined under paragraph (a)(3) 
or (c)(3) (whichever is applicable) of this section
    (5) Treatment of property acquired in like kind exchange or 
involuntary conversion. If property is disposed of in a transaction to 
which section 1250(d)(7) (relating to principal residence) and section 
1250(d)(4) (relating to like kind exchanges and involuntary conversions) 
apply, then:
    (i) The basis of the property acquired shall be determined under the 
applicable provisions of paragraph (d) (2), (3), or (4) of this section, 
applied as if all gain computed under section 1250(a) (except any gain 
not recognized solely by reason of the application of section 
1250(d)(7)) were not taken into account by reason of section 
1250(d)(4)(A),
    (ii) The additional depreciation for the property acquired shall be 
determined in the manner prescribed in paragraph (d)(5) of this section, 
so applied, and
    (iii) For purposes of computing the applicable percentage, the 
holding period of the acquired property shall be determined under 
section 1250(e)(1).
    (6) Treatment of property acquired in section 1034 transaction. If a 
principal residence is disposed of in a transaction to which section 
1250(d)(7) applies, and if by reason of the application of section 1034 
(relating to sale or exchange of residence) the basis of property 
acquired in the transaction is determined by reference to the basis in 
the hands of the taxpayer of the property disposed of, then:
    (i) The additional depreciation for the acquired property 
immediately after the transaction shall be an amount equal to (a) the 
amount of the additional depreciation for the property disposed of, 
minus (b) the amount of any gain which would have been taken into 
account under section 1250(a) by the transferor upon the disposition if 
the applicable percentage for the property had been 100 percent,
    (ii) For purposes of computing the applicable percentage, the 
holding period of the acquired property includes the holding period of 
the disposed of property (see section 1250(e)(3)),
    (iii) If the adjusted basis of the acquired property exceeds the 
adjusted

[[Page 512]]

basis immediately before the transfer of the property disposed of, the 
excess is an addition to capital account under paragraph (d)(2)(ii) of 
Sec.  1.1250-5 (relating to property with more than one element), and
    (iv) If the property disposed of consisted of two or more elements 
within the meaning of paragraph (c) of Sec.  1.1250-5, see paragraph 
(e)(3) of Sec.  1.1250-5 for the amount of additional depreciation and 
the holding period for each element in the hands of the transferee.
    (h) Limitation for disposition of qualified low-income housing--(1) 
Limitation on gain. (i) Under section 1250(d)(8)(A), if section 1250 
property is disposed of and gain (determined without regard to section 
1250) is not recognized in whole or in part under section 1039 (relating 
to certain sales of low-income housing projects), then the amount of 
gain recognized by the transferor under section 1250(a) shall not exceed 
the greater of:
    (a) The amount of gain recognized under section 1039 (determined 
without regard to section 1250), or
    (b) The excess, if any, of the amount of gain which would, but for 
section 1250(d)(8)(A), be taken into account under section 1250(a), over 
the cost of the section 1250 property acquired in the transaction.

For purposes of this paragraph the term qualified housing project, 
approved disposition, reinvestment period, and net amount realized shall 
have the same meaning as in section 1039 and Sec.  1.1039-1.
    (ii) The principles of this subparagraph may be illustrated by the 
following examples:

    Example 1. (i) Taxpayer A owns a qualified housing project and makes 
an approved disposition of the project on January 1, 1971. The net 
amount realized upon the disposition is $550,000, of which $475,000 is 
attributable to section 1250 property. The adjusted basis of the section 
1250 property is $250,000 and the gain realized on the disposition of 
section 1250 property is $225,000. The additional depreciation for the 
property is $100,000, the applicable percentage is 48 percent, and if 
section 1250(d)(8)(A) did not apply to the disposition, $48,000 of gain 
would be recognized under section 1250(a). Within the reinvestment 
period, A purchases a replacement qualified housing project at a cost of 
$525,000, of which $425,000 is attributable to section 1250 property. A 
properly elects under section 1039(a) and the regulations thereunder to 
limit the recognition of gain (determined without regard to section 
1250) to $25,000, that is, the excess of the net amount realized 
($550,000) over the cost of the replacement housing project ($525,000).
    (ii) The amount of gain recognized under section 1250(a) is limited 
to $25,000, that is, the greater of (a) the amount of gain recognized 
without regard to section 1250(a) ($25,000), or (b) the excess of (1) 
the amount of gain which would be taken into account under section 
1250(a) if section 1250(d)(8)(A) did not apply ($225,000), over (2) the 
cost of the replacement section 1250 property ($425,000), or zero.
    Example 2. The facts are the same as in example (1) except that only 
$180,000 of the cost of the replacement housing project is attributable 
to section 1250 property. Thus, the gain recognized under section 
1250(a) is limited to $45,000, the greater of (a) the excess of (1) the 
amount of gain which would be taken into account under section 1250(a) 
if section 1250(d)(8)(A) did not apply ($225,000), over (2) the cost of 
the replacement section 1250 property ($180,000), or (b) the amount of 
gain recognized without regard to section 1250 ($25,000).

    (2) Replacement project consisting of more than one element. (i) If 
(a) section 1250 property is disposed of, (b) any portion of the gain 
which would have been recognized under section 1250(a) is not recognized 
by reason of section 1250(d)(8)(A), and (c) the cost of the replacement 
section 1250 property constructed, reconstructed, or acquired during the 
reinvestment period exceeds the net amount realized attributable to the 
section 1250 property disposed of, then the section 1250 property shall 
consist of two elements. For purposes of this paragraph, the 
reinvestment element is that portion of the section 1250 property 
constructed, reconstructed, or acquired during the reinvestment period 
the cost of which does not exceed the net amount realized attributable 
to the section 1250 property disposed of, reduced by any gain recognized 
with respect to such property. The additional cost element is that 
portion of the section 1250 property constructed, reconstructed, or 
acquired during the reinvestment period whose cost exceeds the net 
amount realized attributable to the section 1250 property disposed of.
    (ii) The principles of this subparagraph may be illustrated by the 
following example:


[[Page 513]]


    Example 1. (i) Taxpayer B disposes of a qualified housing project 
consisting of section 1250 property with an adjusted basis of $500,000 
and land with a basis of $100,000. The amount realized on the 
disposition is $750,000 of which $650,000 is attributable to the section 
1250 property. B constructs a replacement housing project at a cost of 
$1,000,000 of which $850,000 is attributable to section 1250 property. B 
elects in accordance with the provisions of section 1039(a) and the 
regulations there under not to recognize the $150,000 gain realized.
    (ii) Under section 1250(d)(8)(A) no gain is recognized under section 
1250(a). The replacement section 1250 property consists of the two 
elements. The reinvestment element has a cost of $650,000, i.e., that 
portion of the replacement section 1250 property the cost of which does 
not exceed the amount realized attributable to the section 1250 property 
disposed of ($650,000), reduced by any gain recognized with respect to 
such property (zero). The additional cost element has a cost of 
$200,000, that is, the excess of the cost of the replacement section 
1250 property ($850,000) over the amount realized attributable to the 
section 1250 property disposed of ($650,000).

    (3) Basis of property acquired. (i) If section 1250 property is 
disposed of and gain (determined without regard to section 1250) is not 
recognized in whole or in part under section 1039 (relating to certain 
sales of low-income housing projects), then the basis of the section 
1250 property and other property acquired in the transaction shall be 
determined in accordance with the rules of this subparagraph. Generally, 
the basis of the property acquired in a transaction to which section 
1039(a) applies is its cost reduced by the amount of any gain not 
recognized attributable to the property disposed of (see section 
1039(d)). In a case where the replacement section 1250 property 
constructed, reconstructed, or acquired within the reinvestment period 
is treated as consisting of more than one element under section 
1250(d)(8)(e), the aggregate basis of the property determined under 
section 1039(d) shall be allocated as follows: first, to the 
reinvestment element of the section 1250 property, in an amount equal to 
the amount determined under section 1250(d)(8)(E)(i) reduced by the 
amount of any gain not recognized attributable to the section 1250 
property disposed of; second, to the other replacement property (other 
than section 1250 property) in an amount equal to the amount of its cost 
reduced (but not below zero) by any remaining amount of gain not 
recognized; and finally, to the additional cost element of the section 
1250 property, in an amount equal to the amount determined under section 
1250(d)(8)(E)(ii) reduced by any amount of gain not recognized which has 
not been taken into account in determining the basis of the reinvestment 
element and the other replacement property that is not section 1250 
property. See paragraph (h)(2) of this section for definition of the 
terms reinvestment element and additional cost element.
    (ii) The principles of this subparagraph may be illustrated by the 
following examples:

    Example 1. The facts are the same as in example (1) of subparagraph 
(1)(ii) of this paragraph. The basis of the replacement section 1250 
property is $225,000, the amount of the reinvestment element ($425,000) 
minus the gain not recognized attributable to the section 1250 property 
disposed of ($200,000).
    Example 2. Taxpayer C disposes of a qualified housing project on 
January 1, 1971. The adjusted basis for the project is $3,800,000, of 
which $3,000,000 is attributable to section 1250 property and $800,000 
is attributable to land. The amount realized on the disposition is 
$5,000,000, of which $4,000,000 is attributable to the section 1250 
property and $1,000,000 is attributable to the land. The gain realized 
upon the disposition is $1,200,000, that is, amount realized 
($5,000,000) minus adjusted basis ($3,800,000), of which $1,000,000 is 
attributable to the section 1250 property disposed of. Within the 
reinvestment period, C purchases another qualified housing project at a 
cost of $5,500,000, of which $4,000,000 is attributable to section 1250 
property and $1,500,000 is attributable to other property. C makes an 
election under section 1039(a) and the regulations thereunder and none 
of the $1,200,000 gain realized on the disposition is recognized 
(determined without regard to section 1250). Under section 
1250(d)(8)(A), none of the gain realized is recognized under section 
1250(a). The basis of the replacement section 1250 property is 
$3,000,000, that is, the amount of the reinvestment element ($4,000,000) 
less the amount of gain not recognized attributable to section 1250 
property disposed of ($1,000,000). The basis of the other property 
acquired is $1,300,000, that is, its cost ($1,500,000) reduced by the 
remaining gain not recognized ($200,000).
    Example 3. The facts are the same as in example (2) except that the 
cost of the replacement section 1250 property is $4,500,000 and the cost 
of the other property is $1,000,000. Thus, the replacement section 1250 
property

[[Page 514]]

consists of two elements under section 1250(d)(8)(E). The reinvestment 
element (section 1250(d)(8)(E)(i)) has a basis of $3,000,000, that is 
$4,000,000 (that portion of the section 1250 property acquired the cost 
of which does not exceed the net amount realized attributable to the 
section 1250 property disposed of), reduced by $1,000,000 (the gain not 
recognized attributable to the section 1250 property disposed of). The 
basis of the other property is $800,000, that is, its cost ($1,000,000) 
reduced by the remaining gain not recognized ($200,000). The additional 
cost element (section 1250(d)(8)(E)(ii)) has a basis of $500,000, that 
is, the portion of the section 1250 property acquired the cost of which 
exceeds the net amount realized attributable to the section 1250 
property disposed of. This amount ($500,000) is not reduced by any 
amount of gain not recognized because all of the gain not recognized has 
already been taken into account in determining the basis of the 
reinvestment element and the other replacement property that is not 
section 1250 property.

    (4) Additional depreciation for property acquired. (i) If a 
qualified housing project is disposed of in a transaction to which 
section 1039(a) applies, the additional depreciation for the replacement 
property immediately after the transaction shall be an amount equal to 
(a) the amount of additional depreciation for the property disposed of, 
minus (b) the amount of additional depreciation necessary to produce the 
amount of gain recognized under section 1250(a). Thus, if no gain is 
recognized upon a disposition of a qualified housing project, the 
additional depreciation for the property acquired will be the same as 
for the property disposed of. On the other hand, if upon disposition of 
a project, gain of $40,000 was recognized under section 1250(a), and if 
the additional depreciation for the project and the applicable 
percentage were $100,000 and 80 percent, respectively, the additional 
depreciation for the replacement housing project would be $50,000, that 
is, $100,000 minus $50,000, the amount of additional depreciation 
necessary to produce $40,000 of recognized gain where the applicable 
percentage is 80 percent.
    (ii) If the property acquired in the transaction consists of more 
than one element of section 1250 property by reason of section 
1250(d)(8)(E), the additional depreciation under subdivision (i) of this 
subparagraph shall be allocated solely to the reinvestment element.
    (5) Additional limitation. If, in a transaction to which section 
1039(a) applies, gain is recognized by the taxpayer, the amount of gain 
recognized which is attributable to section 1250 property disposed of 
is, under section 1250(d)(8)(F)(i), limited to an amount equal to the 
net amount realized attributable to the section 1250 property disposed 
of reduced by the greater of (i) the adjusted basis of the section 1250 
property disposed of, or (ii) the cost of the section 1250 property 
acquired. The limitation of section 1250(d)(8)(F)(i) may be illustrated 
by the following example:

    Example: Taxpayer D owns property constituting a qualified housing 
project under section 1039(b)(1). In an approved disposition, the 
project is sold for $225,000. The net amount realized on the disposition 
is $225,000 of which $175,000 is attributable to the section 1250 
property disposed of. The adjusted basis of such property is $150,000 
and thus the gain realized upon the disposition of the section 1250 
property is $25,000. Assume that the total gain realized upon 
disposition of the project is $45,000. Within the reinvestment period, D 
purchases another qualified housing project at a cost of $200,000, of 
which $160,000 is attributable to section 1250 property. D elects, in 
accordance with section 1039(a) and the regulations thereunder, to limit 
the recognition of gain to $25,000, that is, the net amount realized 
($225,000), minus the cost of the replacement housing project 
($200,000). Under this subparagraph, $15,000 of the $25,000 gain 
recognized is attributable to the section 1250 property disposed of, 
that is, the net amount realized attributable to the section 1250 
property disposed of ($175,000), reduced by $160,000, the greater of the 
adjusted basis of the section 1250 property disposed of ($150,000) or 
the cost of the section 1250 property acquired ($160,000).

    (6) Allocation rule. (i) If, in a transaction to which paragraph 
(h)(1) of this section applies, the section 1250 property disposed of is 
treated as consisting of more than one element by reason of the 
application of section 1250(d)(8)(E) with respect to a prior 
transaction, then the amount of gain recognized, the net amount 
realized, and the additional depreciation with respect to each such 
element shall be allocated to the elements of the replacement section 
1250 property in accordance with the provisions of this subparagraph.

[[Page 515]]

    (ii) The portion of the net amount realized upon such a disposition 
which shall be allocated to each element of the section 1250 property 
disposed of is that amount which bears the same ratio to the net amount 
realized attributable to all the section 1250 property disposed of in 
the transaction as the additional depreciation for that element bears to 
the total additional depreciation for all elements disposed of. If any 
gain is recognized upon disposition of the section 1250 property, such 
gain shall be allocated to each element in the same proportion as the 
gain realized for that element bears to the gain realized for all 
elements disposed of. The additional depreciation for each reinvestment 
element of the replacement section 1250 property shall be the same as 
for the corresponding element of the property disposed of, decreased by 
the amount of additional depreciation necessary to produce the amount of 
gain recognized for such element. The additional depreciation for any 
additional cost element shall be zero.
    (iii) The principles of this subparagraph may be illustrated by the 
following example:

    Example: Taxpayer E disposes of a qualified housing project in an 
approved disposition. The net amount realized is $1,090,000 of which 
$900,000 is attributable to section 1250 property. The section 1250 
property consists of (1) a reinvestment element with an adjusted basis 
of $300,000, additional depreciation of $100,000, and an applicable 
percentage of 50 percent, and (2) an additional cost element with an 
adjusted basis of $200,000, additional depreciation of $50,000, and an 
applicable percentage of 80 percent. Gain of $400,000 is realized on the 
disposition of the section 1250 property, that is, amount realized 
($900,000) minus adjusted basis ($500,000). Within the reinvestment 
period, E purchases another qualified housing project at a cost of 
$1,000,000 of which $840,000 is attributable to section 1250 property. E 
elects, in accordance with section 1039 and the regulations thereunder, 
to limit recognition of gain (determined without regard to section 1250) 
to $90,000, that is, the excess of the net amount realized ($1,090,000) 
over the cost of the replacement project ($1,000,000). Under section 
1250(d)(8)(A), the amount of gain recognized under section 1250(a) is 
limited to $90,000 (see subparagraph (1) of this paragraph). Under 
section 1250(d)(8)(F)(ii) and this subparagraph, $600,000 of the 
$900,000 net amount realized attributable to the section 1250 property 
is allocated to the reinvestment element, that is, additional 
depreciation for the element ($100,000) over total additional 
depreciation ($150,000) times the net amount realized ($900,000). The 
remaining $300,000 is allocated to the additional cost element. Thus, 
the gain realized attributable to the reinvestment element is $300,000, 
that is, net amount realized ($600,000) minus adjusted basis ($300,000). 
The gain realized attributable to the additional cost element is 
$100,000, that is, net amount realized ($300,000) minus adjusted basis 
($200,000). Under subparagraph (5) of this paragraph, the gain 
recognized attributable to the section 1250 property is limited to 
$60,000, that is, the net amount realized attributable to the section 
1250 property disposed of ($900,000) minus the greater of the adjusted 
basis of such property ($500,000) or the cost of the section 1250 
property acquired in the transaction ($840,000). Under section 
1250(d)(8)(F)(ii) and this subparagraph, $45,000 of the $60,000 gain 
recognized is attributable to the reinvestment element, that is, $60,000 
multiplied by a fraction whose numerator is the gain realized 
attributable to the reinvestment element ($300,000) and whose 
denominator is the total gain realized attributable to all the section 
1250 property ($400,000). The remaining $15,000 of the gain recognized 
is attributable to the additional cost element. The new property 
acquired has no additional cost element. The reinvestment element of the 
new property acquired consists of 2 subelements corresponding to the 
reinvestment element and additional cost element of the property 
disposed of. The subelement corresponding to the reinvestment element 
has additional depreciation of $10,000, that is, its additional 
depreciation immediately before the disposition ($100,000), minus 
$90,000, the amount of additional depreciation necessary to produce 
$45,000 of section 1250(a) gain where the applicable percentage is 50 
percent. The subelement corresponding to the additional cost element has 
additional depreciation of $31,250, that is, its additional depreciation 
immediately before the disposition ($50,000), minus $18,750, the amount 
of additional depreciation necessary to produce $15,000 of section 
1250(a) gain where the applicable percentage is 80 percent.

[T.D. 7084, 36 FR 275, Jan. 8, 1971, as amended by T.D. 7193, 37 FR 
12957, June 30, 1972; T.D. 7400, 41 FR 5101, Feb. 4, 1976; 41 FR 7095, 
Feb. 17, 1976]



Sec.  1.1250-4  Holding period.

    (a) General. In general, for purposes only of determining the 
applicable percentage (as defined in section 1250 (1)(C) and (2)(B)) of 
section 1250 property, the holding period of the property shall be 
determined under the rules of

[[Page 516]]

section 1250(e) and this section and not under the rules of section 
1223. If the property is treated as consisting of two or more elements 
(within the meaning of paragraph (c)(1) of Sec.  1.1250-5), see 
paragraph (a)(2)(ii) of Sec.  1.1250-5 for application of this section 
to determination of holding period of each element. Section 1250(e) does 
not affect the determination of the amount of additional depreciation in 
respect of section 1250 property.
    (b) Beginning of holding period. (1) For the purpose of determining 
the applicable percentage, in the case of property acquired by the 
taxpayer (other than by means of a transaction referred to in paragraph 
(c) or (d) of this section), the holding period of the property shall 
begin on the day after the date of its acquisition. See section 
1250(e)(1)(A). Thus, for example, if a taxpayer purchases section 1250 
property on January 1, 1965, the holding period of the property begins 
on January 2, 1965. If he sells the property on October 1, 1966, the 
holding period on the day of the sale is 21 full months, and, 
accordingly, the applicable percentage is 99 percent. This result would 
not be changed even if the property initially had been used solely as 
the taxpayer's residence for a portion of the 21-month period. If, 
however, the property were sold on September 30, 1966, the holding 
period would be only 20 full months.
    (2) For the purpose of determining the applicable percentage in the 
case of property constructed, reconstructed, or erected by the taxpayer, 
the holding period of the property shall begin on the first day of the 
month during which the property is placed in service. See section 
1250(e)(1)(B). Thus, for example, if a taxpayer constructs section 1250 
property and places it in service on January 15, 1965, its holding 
period begins on January 1, 1965. If the taxpayer sells the property on 
December 31, 1966, its holding period on the day of sale is 24 full 
months, and, accordingly, the applicable percentage is 96 percent. For 
purposes of this subparagraph, property is placed in service on the date 
on which it is first used, whether in a trade or business, in the 
production of income, or in a personal activity. Thus, for example, a 
residence constructed by a taxpayer for his personal use is placed in 
service on the date it is occupied as a residence. For purposes of 
determining the date property is placed in service, it is immaterial 
when the period begins for depreciation with respect to the property 
under any depreciation practice under which depreciation begins in any 
month other than the month in which the property is placed in service. 
If one or more units of a single property are placed in service on 
different dates before the completion of the property, see paragraph 
(c)(3) of Sec.  1.1250-5 (relating to treatment of each such unit as an 
element).
    (c) Property with transferred basis. Under section 1250(e)(2), if 
the basis of property acquired in a transaction described in this 
subparagraph is determined by reference to its basis in the hands of the 
transferor, then the holding period of the property in the hands of the 
transferee shall include the holding period of the property in the hands 
of the transferor. The transactions described in this subparagraph are:
    (1) A gift described in section 1250(d)(1).
    (2) Certain transfers at death to the extent provided in paragraph 
(b)(2)(ii) of Sec.  1.1250-3.
    (3) Certain tax-free transactions to which section 1250(d)(3) 
applies. For application of section 1250 (d)(3) and (e)(2) to a 
distribution by a partnership to a partner, see paragraph (f)(1) of 
Sec.  1.1250-3.
    (4) A transfer described in paragraph (e)(4) of Sec.  1.1250-3 
(relating to transaction under section 1081(d)(1)(A)).
    (5) A transfer at death where the basis of the property in the hands 
of the transferee is determined under section 1022.
    (d) Principal residence acquired in certain transactions. The 
holding period of a principal residence acquired in a transaction to 
which section 1034 and paragraph (g)(6) of Sec.  1.1250-3 apply includes 
the holding period of the principal residence disposed of in such 
transaction. See section 1250(e)(3). The holding period of a principal 
residence acquired does not include the period beginning on the day 
after the date of the disposition and ending on the date of the 
acquisition.

[[Page 517]]

    (e) Application of transferred basis and principal residence rules. 
The determination of holding period under this section shall be made 
without regard to whether a transaction occurred prior to the effective 
date of section 1250 and without regard to whether there was any gain 
upon the transaction. Thus, for example, under paragraph (c) of this 
section a donee's holding period for property includes his donor's 
holding period notwithstanding that the gift occurred on or before 
December 31, 1963, or that there was no additional depreciation in 
respect of the property at the time of the gift.
    (f) Qualified low-income housing project acquired in certain 
transactions. The holding period of a reinvestment element (and of 
subelements thereof) of section 1250 property (as defined in paragraph 
(h) (2) of Sec.  1.1250-3) acquired in a transaction to which sections 
1039(a) and 1250(d)(8)(A) apply includes the holding period of the 
corresponding element of the section 1250 property disposed of. See 
section 1250(e)(4). The holding period of the additional cost element 
(as defined in paragraph (h)(2) of Sec.  1.1250-3) begins on the date 
the replacement project is acquired. The holding period of a 
reinvestment element of section 1250 property does not include the 
period beginning on the day after the date of the disposition and ending 
(1) on the date of the acquisition of the replacement housing project, 
or (2) on the date the replacement housing project constructed or 
reconstructed by the taxpayer is placed in service.
    (g) Cross reference. If the adjusted basis of the property in the 
hands of the transferee immediately after a transaction to which 
paragraph (c) or (d) of this section applies exceeds its adjusted basis 
in the hands of the transferor immediately before the transaction, the 
excess is an addition to capital account under paragraph (d)(2)(ii) of 
Sec.  1.1250-5 (relating to property with two or more elements).
    (h) Effective/applicability date. This section applies on and after 
January 19, 2017. For rules before January 19, 2017, see Sec.  1.1250-4 
as contained in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 7084, 36 FR 281, Jan. 8, 1971, as amended by T.D. 7400, 41 FR 
5103, Feb. 4, 1976; T.D. 9811, 82 FR 6241, Jan. 19, 2017]



Sec.  1.1250-5  Property with two or more elements.

    (a) Dispositions before January 1, 1970--(1) Amount treated as 
ordinary income. If section 1250 property consisting of two or more 
elements (described in paragraph (c) of this section) is disposed of 
before January 1, 1970, the amount of gain taken into account under 
section 1250(a)(2) shall be the sum, determined in three steps under 
subparagraphs (2), (3), and (4) of this paragraph, of the amounts of 
gain for each element.
    (2) Step 1. The first step is to make the following computations:
    (i) In respect of the property as a whole, compute the additional 
depreciation (as defined in section 1250(b)), and the gain realized. For 
purposes of this paragraph, in the case of a transaction other than a 
sale, exchange or involuntary conversion, the gain realized shall be 
considered to be the excess of the fair market value of the property 
over its adjusted basis.
    (ii) In respect of each element as if it were a separate property, 
compute the additional depreciation for the element, and the applicable 
percentage (as defined in section 1250(a)(2)) for the element. For 
additional depreciation in respect of an element of property acquired in 
certain transactions, see paragraph (e) of this section. For purposes of 
determining additional depreciation, the holding period of an element 
shall be determined under section 1223, applied by treating the element 
as a separate property. However, for the purpose of determining 
applicable percentage, the holding period for an element shall, except 
to the extent provided in paragraphs (c)(5), (e), and (f) of this 
section, be determined in accordance with the rules prescribed in Sec.  
1.1250-4.
    (3) Step 2. The second step is to determine the amount of gain for 
each element in the following manner:
    (i) If the amount of additional depreciation in respect of the 
property as a whole is equal to the sum of the additional depreciation 
in respect of each element having additional depreciation, and if such 
amount is not more than the gain realized, then the amount of gain to be 
taken into account for an element is the product of

[[Page 518]]

the additional depreciation for the element, multiplied by the 
applicable percentage for the element.
    (ii) If subdivision (i) of this subparagraph does not apply, the 
amount of gain to be taken into account for an element is the product 
of:
    (a) The additional depreciation for the element, multiplied by
    (b) The applicable percentage for the element, and multiplied by
    (c) A ratio, computed by dividing (1) the lower of the additional 
depreciation in respect of the property as a whole or the gain realized, 
by (2) the sum of the additional depreciation in respect of each element 
having additional depreciation.
    (4) Step 3. The third step is to compute the sum of the amounts of 
gain for each element, as determined in step 2.
    (5) Examples. The provisions of this subparagraph may be illustrated 
by the following examples:

    Example 1. Gain of $35,000 is realized upon a sale, before January 
1, 1970, of section 1250 property which consists of four elements (W, X, 
Y, and Z). Since on the date of the sale the amount of additional 
depreciation in respect of the property as a whole ($24,000) is equal to 
the sum of the additional depreciation in respect of each element having 
additional depreciation and is less than the gain realized, the 
additional depreciation for each element is determined under 
subparagraph (3)(i) of this paragraph. The amount of gain taken into 
account under section. 1250(a)(2) is $7,500, as determined in the 
following table in accordance with the additional facts assumed.

------------------------------------------------------------------------
                                 Additional     Applicable     Gain for
           Element             depreciation x   percentage=    element
------------------------------------------------------------------------
W............................       $12,000 x            0=            0
X............................         6,000 x           50=       $3,000
Y............................             0 x           63=            0
Z............................         6,000 x           75=        4,500
                              ------------------------------------------
  Totals.....................          24,000  ............        7,500
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1), except that in 
respect of the property as a whole the additional depreciation is 
$20,000 because with respect to element Y additional depreciation 
allowed was $4,000 less than straight line. Accordingly, the sum of the 
additional depreciation for each element having additional depreciation 
is $24,000, that is, $4,000 greater than the additional depreciation in 
respect of the property as a whole. Thus, the additional depreciation 
for each element is determined under subparagraph (3)(ii) of this 
paragraph. The ratio referred to in subparagraph (3)(ii)(c) of this 
paragraph is twenty twenty-fourths, that is, the lower of additional 
depreciation in respect of the property as a whole ($20,000) or the gain 
realized ($35,000), divided by the sum of the additional depreciation in 
respect of each element having additional depreciation ($24,000). The 
amount of gain taken into account under section 1250(a)(2) is $6,250, as 
determined in the following table:

----------------------------------------------------------------------------------------------------------------
                                                                     Additional    Applicable
                              Element                               depreciation   percentage   Ratio=  Gain for
                                                                          x            x                 element
----------------------------------------------------------------------------------------------------------------
W.................................................................     $12,000 x          0 x   20:24=         0
X.................................................................       6,000 x         50 x   20:24=    $2,500
Y.................................................................           0 x         63 x   20:24=         0
Z.................................................................       6,000 x         75 x   20:24=     3,750
                                                                   ---------------------------------------------
  Totals..........................................................        24,000  ...........  .......     6,250
----------------------------------------------------------------------------------------------------------------

    (b) Dispositions after December 31, 1969--(1) Amount treated as 
ordinary income. If section 1250 property consisting of two or more 
elements (described in paragraph (c) of this section) is disposed of 
after December 31, 1969, the amount of gain taken into account under 
section 1250(a) shall be the sum, determined in 5 steps under 
subparagraphs (2), (3), (4), (5), and (6) of this paragraph, of the 
amount of gain for each element. Steps 3 and 4 are used only if the gain 
realized exceeds the additional depreciation attributable to periods 
after December 31, 1969, in respect of the property as a whole.
    (2) Step 1. The first step is to make the following computations:
    (i) In respect of the property as a whole, compute the additional 
depreciation (as defined in section 1250(b)) attributable to periods 
after December 31, 1969, and the gain realized. For purposes of this 
paragraph, in the case of a transaction other than a sale, exchange, or 
involuntary conversion, the gain realized shall be considered to be the 
excess of the fair market value of the property over its adjusted basis.
    (ii) In respect of each element as if it were a separate property, 
compute the additional depreciation for the element attributable to 
periods after December 31, 1969, and the applicable percentage (as 
defined in section 1250(a)(1)) for the element. For additional 
depreciation in respect of an element of property acquired in certain 
transactions, see

[[Page 519]]

paragraph (e) of this section. For purposes of determining additional 
depreciation, the holding period of an element shall be determined under 
section 1223, applied by treating the element as a separate property. 
However, for the purpose of determining applicable percentage, the 
holding period for an element shall, except to the extent provided in 
paragraphs (c)(5), (e), and (f) of this section, be determined in 
accordance with the rules prescribed in Sec.  1.1250-4.
    (3) Step 2. The second step is to determine the amount of gain 
recognized for each element under section 1250(a) (1) in the following 
manner:
    (i) If the amount of additional depreciation in respect of the 
property as a whole attributable to periods after December 31, 1969, is 
equal to the sum of the additional depreciation in respect of each 
element having such additional depreciation, and if such amount is not 
more than the gain realized, then the amount of gain to be taken into 
account for an element under section 1250(a)(1) is the product of the 
additional depreciation attributable to periods after December 31, 1960, 
for the element, multiplied by the applicable percentage for the element 
determined under section 1250(a)(1).
    (ii) If subdivision (i) of this subparagraph does not apply, the 
amount of gain to be taken into account under section 1250(a)(1) for an 
element is the product of:
    (a) The additional depreciation attributable to periods after 
December 31, 1969, for the element multiplied by
    (b) The applicable percentage for the element determined under 
section 1250(a)(1) for the element, and multiplied by
    (c) A ratio, computed by dividing (1) the lower of the additional 
depreciation in respect of the property as a whole which is attributable 
to periods after December 31, 1969, or the gain realized, by (2) the sum 
of the additional depreciation attributable to periods after December 
31, 1969, in respect of each element having such additional 
depreciation.
    (4) Step (3). If the gain realized exceeds the additional 
depreciation in respect of the property as a whole attributable to 
periods after December 31, 1969.
    (i) Compute the additional depreciation attributable to periods 
before January 1, 1970, and the remaining gain (or remaining potential 
gain in the case of a transaction other than a sale, exchange, or 
involuntary conversion), in respect of the property as a whole.
    (ii) Compute the additional depreciation attributable to periods 
before January 1, 1970, and the applicable percentage determined under 
section 1250(a)(2) in respect of each element as if it were a separate 
property. For additional depreciation in respect of an element of 
property acquired in certain transactions, see paragraph (e) of this 
section. For purposes of determining additional depreciation, the 
holding period of an element shall be determined under section 1223, 
applied by treating the element as a separate property. However, for the 
purpose of determining applicable percentage, the holding period of an 
element shall, except to the extent provided in paragraphs (c)(5), (e), 
and (f) of this section, be determined in accordance with the rules 
prescribed in Sec.  1.1250-4.
    (5) Step (4). The fourth step is to compute the gain recognized 
under section 1250(a)(2) for each element (if computation was required 
under step (3)) in the following manner:
    (i) If the amount of additional depreciation in respect of the 
property as a whole attributable to periods before January 1, 1970, is 
equal to the sum of the additional depreciation in respect of each 
element having such additional depreciation, and if such amount is not 
more than the remaining gain (or remaining potential gain), then the 
amount of gain to be taken into account for an element under section 
1250(a)(2) is the product of the additional depreciation attributable to 
periods before January 1, 1970, for the element, multiplied by the 
applicable percentage determined under section 1250(a)(2) for the 
element.
    (ii) If subdivision (i) of this subparagraph does not apply, the 
amount of gain to be taken into account for an element under section 
1250(a)(2) is the product of:

[[Page 520]]

    (a) The additional depreciation attributable to periods before 
January 1, 1970, for the element, multiplied by,
    (b) The applicable percentage for the element determined under 
section 1250(a)(2), and multiplied by,
    (c) A ratio, computed by dividing (1) the lower of the additional 
depreciation in respect of the property as a whole which is attributable 
to periods before January 1, 1970,

or the remaining gain (or remaining potential gain), by (2) the sum of 
the additional depreciation attributable to periods before January 1, 
1970, in respect of each element having additional depreciation.
    (6) Step (5). The fifth step is to compute the sum of the amount of 
gain for each element, as determined in steps (2) and (4).
    (7) Examples. The provisions of this subparagraph may be illustrated 
by the following examples:

    Example 1. Gain of $60,000 is realized upon a sale, after the 
December 31, 1969, of section 1250 property which was constructed by the 
taxpayer after such date. The property consists of four elements (W, X, 
Y, and Z). Since on the date of sale the amount of additional 
depreciation attributable to periods after December 31, 1969, in respect 
of the property as a whole ($32,000), is equal to the sum of the 
additional depreciation in respect of each element having such 
additional depreciation and is less than the gain realized, the gain 
recognized for each element is determined under subparagraph (3)(i) of 
this paragraph. The amount of gain taken into account under section 
1250(a)(1) is $28,500, as determined in the following table in 
accordance with the additional facts assumed:

------------------------------------------------------------------------
                                  Additional
                                 depreciation     Applicable    Gain for
           Element              after Dec. 31,    percentage=   element
                                    1969 x       (1250(a)(1))
------------------------------------------------------------------------
W............................         $14,000 x           80=    $11,200
X............................           6,000 x           90=      5,400
Y............................           2,000 x           95=      1,900
Z............................          10,000 x          100=     10,000
                              ------------------------------------------
  Total......................            32,000  ............     28,500
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1), except that the 
property was acquired by the taxpayer before January 1, 1970. Since the 
gain realized ($60,000) exceeds the additional depreciation attributable 
to periods after December 31, 1969 ($32,000), section 1250(a)(2) applies 
to the remaining gain of $28,000. Since the additional depreciation in 
respect of the property as a whole attributable to periods before 
January 1, 1970 ($21,000), is equal to the sum of the additional 
depreciation in respect of each element having such additional 
depreciation and is less than the remaining gain ($28,000), the amount 
of gain recognized for each element under section 1250(a)(2) is 
determined under subparagraph (5)(i) of this paragraph. The amount of 
gain taken into account under section 1250(a)(1) is $28,500 the same as 
in example (1). The amount of gain taken into account under section 
1250(a)(2) is $3,900, as determined in the following table in accordance 
with the additional facts assumed:

----------------------------------------------------------------------------------------------------------------
                                                                     Additional
                                                                    depreciation      Applicable      Gain for
                            Element                                before Jan. 1,     percentage=     element
                                                                       1970 x        (1250(a)(2))  (1250)(a)(2))
----------------------------------------------------------------------------------------------------------------
W..............................................................            $8,000 x            0=           $0
X..............................................................             6,000 x           10=          600
Y..............................................................             2,000 x           15=          300
Z..............................................................             5,000 x           60=        3,000
                                                                ------------------------------------------------
  Total........................................................              21,000  ............        3,900
----------------------------------------------------------------------------------------------------------------

    Example 3. (i) The facts are the same as in example (2) except that 
element Y has a deficit in additional depreciation attributable to 
periods after December 31, 1969, of $6,000 and thus the additional 
depreciation attributable to periods after December 31, 1969, in respect 
of the property as a whole is $24,000. The sum of the additional 
depreciation for each element having additional depreciation is $30,000, 
or $6,000 more than the additional depreciation in respect of the 
property as a whole. Thus, the gain recognized for each element under 
section 1250(a)(1) is determined under subparagraph (3)(ii) of this 
paragraph. The ratio referred to in subparagraph (3)(ii) (c) of this 
paragraph is 24:30, that is, the lower of the additional depreciation in 
respect of the property as a whole attributable to periods after 
December 31, 1969 ($24,000), or the gain realized ($60,000), divided by 
the sum of the additional depreciation in respect of each element having 
such additional depreciation ($30,000). The amount of gain taken into 
account under section 1250(a)(1) is $21,280, as determined in the 
following table:

----------------------------------------------------------------------------------------------------------------
                                                                    Additional    Applicable
                             Element                               depreciation  percentage x   Ratio=  Gain for
                                                                         x       (1250(a)(1))            element
----------------------------------------------------------------------------------------------------------------
W................................................................     $14,000 x          80 x   24:30=    $8,960
X................................................................       6,000 x          90 x   24:30=     4,320
Y................................................................     (6,000) x          95 x   24:30=         0
Z................................................................      10,000 x         100 x   24:30=     8,000
                                                                  --------------------------------------
  Total..........................................................        24,000  ............  .......    21,280
----------------------------------------------------------------------------------------------------------------

    (ii) In addition, gain is recognized under section 1250(a)(2) since 
there is a remaining potential gain of $36,000, that is, gain realized 
($60,000) minus the additional depreciation attributable to periods 
after December

[[Page 521]]

31, 1969 ($24,000). The gain recognized in respect of each element and 
the gain recognized under section 1250(a)(2) ($3,900) are the same as in 
example (2), since the additional depreciation attributable to periods 
before January 1, 1970 ($21,000) is less than the remaining gain 
($36,000).

    (c) Element--(1) General. For purposes of this section, in the case 
of section 1250 property there shall be treated as separate elements the 
separate improvements, units, remaining property, special elements, and 
low-income housing elements which are respectively referred to in 
paragraphs (c) (2), (3), (4), (5), and (6) of this section.
    (2) Separate improvements. There shall be treated as an element each 
separate improvement (as defined in paragraph (d)(1) of this section) to 
the property.
    (3) Units. If before completion of section 1250 property one or more 
units thereof are placed in service, each such unit of the section 1250 
property shall be treated as an element.
    (4) Remaining property. The remaining property which is not taken 
into account under subparagraph (2) or (3) of this paragraph shall be 
treated as an element.
    (5) Special elements. (i) If the basis of section 1250 property is 
reduced in the manner described in paragraph (b)(2)(ii) of Sec.  1.1250-
3 (relating to property acquired from a decedent prior to his death) or 
in paragraph (e)(3)(iii) of Sec.  1.1250-3 (relating to basis reduction 
under section 1071 or 1082(a)(2)), then such property shall be 
considered as having a special element with additional depreciation 
equal to the amount of additional depreciation included in the 
depreciation adjustments (referred to in paragraph (d)(1) of Sec.  
1.1250-2) to which the basis reduction is attributable. For purposes of 
computing applicable percentage, the holding period of a special element 
under this subdivision shall be determined under paragraph (b)(2)(ii) or 
(e)(3)(iii) (whichever is applicable) of Sec.  1.1250-3.
    (ii) If a disposition described in section 1250(d)(4)(A) (relating 
to like kind exchanges and involuntary conversions) of a portion of an 
item of property gives rise to an addition to capital account (described 
in the last sentence of paragraph (d)(2)(i) of this section) which is 
not a separate improvement, then such property shall be considered as 
having a special element with additional depreciation and, for purposes 
of computing applicable percentage, a holding period determined under 
paragraph (d)(7) of Sec.  1.1250-3.
    (6) Low-income housing elements. If, in an approved disposition of a 
qualified housing project, a replacement qualified housing project is 
treated as consisting of more than one element of section 1250 property 
by reason of section 1250(d)(8)(E) (see paragraph (h)(2) of Sec.  
1.1250-3), the elements determined under such section shall be treated 
as elements for purposes of this section. For definition of the terms 
qualified housing project and approved disposition, see section 1039(b) 
and the regulations thereunder.
    (7) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A taxpayer constructs an apartment house which he places 
in service in three stages. The total cost is $1 million, of which 
$350,000 is allocable to the first stage, $500,000 to the second stage, 
and $150,000 to the third stage. The first stage, which is placed in 
service on January 1, 1965, consists of 300 apartments and certain 
facilities including a central heating system and a common lobby. The 
second stage, which is placed in service on July 15, 1965, consists of 
550 apartments and certain facilities including the motor for a central 
air-conditioning system. The third stage, which is placed in service on 
January 19, 1966, consists of the residue of the apartment house. On 
December 31, 1968, the taxpayer disposes of the apartment house. On such 
date, the apartment house has three elements which are described in the 
table below:

------------------------------------------------------------------------
                                                 Full months
    Stage         Kind of element        Cost     in holding  Applicable
                                                    period    percentage
------------------------------------------------------------------------
1             Unit..................   $350,000           48          72
2             Unit..................    500,000           42          78
3             Remaining property....    150,000           36          84
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1) except that on 
January 1, 1969, two new floors, which were added after the apartment 
house was completed, are placed in service and that on July 1, 1972, the 
taxpayer disposes of the building. Assume further that the two new 
floors are one separate improvement (within the meaning of paragraph (d) 
of this section). On the date disposed of, the property consists of four 
elements, that is, the three elements described in example (1) and the 
separate improvement.


[[Page 522]]


    (d) Separate improvement--(1) Definition. For purposes of this 
section, with respect to any section 1250 property, the term separate 
improvement means an addition to capital account described in 
subparagraph (2) of this paragraph which qualifies as an improvement 
under the 1-year test prescribed in subparagraph (3) of this paragraph 
and which satisfies the 36-month test prescribed in subparagraph (4) of 
this paragraph.
    (2) Addition to capital account. (i) In the case of any section 1250 
property, an addition to capital account described in this subparagraph 
is any addition to capital account in respect of such property after its 
initial acquisition or completion by the taxpayer or by any person who 
held the property during a period included in the taxpayer's holding 
period (see Sec.  1.1250-4) for the property. An addition to the capital 
account of section 1250 property may arise, for example, if there is an 
expenditure for section 1250 property which is an improvement, 
replacement, addition, or alteration to such property (regardless of 
whether the cost thereof is capitalized or charged against the 
depreciation reserve). In such a case, the addition to capital account 
is the gross addition, unreduced by amounts attributable to replaced 
property, to the net capital account and not the net addition to such 
account. Thus, if a roof has an adjusted basis of $20,000, and is 
replaced by constructing a new roof at a cost of $50,000, the gross 
addition of $50,000 is an addition to capital account. (The adjusted 
basis of the old roof is no longer included in the capital account for 
the property.) For purposes of this section, the status of an addition 
to capital account is not affected by whether or not it is treated as a 
separate property for purposes of determining depreciation adjustments. 
In case of an addition to the capital account of property arising after 
December 31, 1963, upon a disposition referred to in section 1250(d)(4) 
(relating to like kind exchanges and involuntary conversions) of a 
portion of an item of such property, the amount of such addition (and 
its basis for all purposes of the Code) shall be the basis thereof 
determined under paragraph (d) (2), (3), or (4) (whichever is 
applicable) of Sec.  1.1250-3, applied by treating such portion and such 
addition as separate properties.
    (ii) An addition to capital account may be attributable to an excess 
of the adjusted basis of section 1250 property in the hands of a 
transferee immediately after a transaction referred to in section 
1250(e)(2) (relating to holding period of property with transferred 
basis) over its adjusted basis in the hands of the transferor 
immediately before the transaction. Thus, for example, such excess may 
arise from a gift which is in part a sale or exchange (see paragraph 
(a)(2) of Sec.  1.1250-3), from an increase in basis due to gift tax 
paid (see section 1015(d)), from a transfer referred to in paragraph 
(c)(2) of Sec.  1.1250-3 (relating to certain tax-free transactions) in 
which gain is partially recognized, or from a distribution by a 
partnership to a partner in which no gain is recognized by reason of the 
application of section 731. Similarly, an addition to capital account 
may be attributable to an excess of the adjusted basis of a principal 
residence acquired in a transaction referred to in section 1250(e)(3) 
over the adjusted basis of the principal residence disposed of, as well 
as to any increase in the adjusted basis of section 1250 property of a 
partnership by reason of an optional basis adjustment under section 
734(b) or 743(b).
    (iii) Whether or not an expenditure shall be treated as an addition 
to capital account described in this subparagraph, as distinguished from 
a separate item of property, may depend on how the property or 
properties are disposed of. Thus, for example, if a taxpayer, who owns a 
motel consisting of 10 buildings with common heating and plumbing 
systems, adds to the motel three new buildings which are connected to 
the common systems, and if the taxpayer sells the motel to one person in 
one transaction, then for purposes of this subparagraph the cost of the 
three new buildings shall be treated as an addition to the capital 
account of the motel and, if the 1-year and 36-month tests of 
subparagraphs (3) and (4) of this paragraph are satisfied, the motel 
consists of at least two elements. If, however, the 10-building group 
and the three-building group were individually sold in separate 
transactions to two different people

[[Page 523]]

each of whom would operate his group as a separate business, the motel 
would consist of two items of property.
    (3) One-year test for improvement. (i) An addition to capital 
account of section 1250 property for any taxable year (including a short 
taxable year and the entire taxable year in which the disposition 
occurs) shall be treated as an improvement only if the sum of all 
additions to the capital account of such property for such taxable year 
exceeds the greater of:
    (a) $2,000, or
    (b) One percent of the unadjusted basis of the property, determined 
as of the beginning (1) of such taxable year, or (2) of the holding 
period (within the meaning of Sec.  1.1250-4) of the property, whichever 
is the later.
    (ii) For purposes of this section, the term unadjusted basis means 
the adjusted basis of the property, determined without regard to the 
adjustments provided in section 1016(a) (2) and (3) (relating to 
adjustments for depreciation, amortization, and depletion). For purposes 
of this paragraph, as of any particular date the unadjusted basis of 
section 1250 property (a) includes the cost of any addition to capital 
account for the property which arises prior to such date (regardless of 
whether such addition qualified under this subparagraph as an 
improvement), and (b) does not include the cost of a component retired 
before such date.
    (iii) In respect of a particular disposition of section 1250 
property by a person:
    (a) There shall not be taken into account under the 1-year test for 
improvements in this subparagraph any addition to capital account which 
arises by reason of (or after) such disposition or which arises before 
the beginning of the holding period under Sec.  1.1250-4 of such person 
for the property, and
    (b) Such test shall be made in respect of each taxable year of such 
person (and of any prior transferor) any day of which is included under 
Sec.  1.1250-4 in such person's holding period for the property, except 
that (1) such test shall be made for a taxable year of such person only 
if such person actually owned the property on at least 1 day of such 
taxable year, and (2) such test shall be made for a taxable year of such 
prior transferor only if such prior transferor actually owned the 
property on at least 1 day of such taxable year.
    (iv) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. The unadjusted basis of section 1250 property as of the 
beginning of January 1, 1960, is $300,000. During the taxable year 
ending on December 31, 1960, the only additions to the capital account 
for the property are addition A on January 1, 1960, costing $1,000, and 
addition B on July 1, 1960, costing $600. Since the sum of the amounts 
added to capital account for such taxable year is less than $2,000, A 
and B are not treated as improvements. This result would not be changed 
if addition C, costing $600, were added on December 15, 1960, since 
although the sum of the additions ($1,000 plus $600 plus $600, or 
$2,200) exceeds $2,000, such sum is less than 1 percent of the 
unadjusted basis of the property as of the beginning of 1960 ($3,000, 
that is, 1 percent of $300,000). If however, C cost $1,500, then A, B, 
and C would each be considered an improvement since the sum of the 
amounts added to capital account $3,100) would exceed $3,000.
    Example 2. Green and his son both use the calendar year as the 
taxable year. On February 1, 1965, Green makes addition A to a piece of 
section 1250 property. On June 15, 1965, Green transfers such property 
to his son as a gift which is in part a sale (see paragraph (a) of Sec.  
1.1250-3). Addition B arises by reason of the transfer. On August 1, 
1965, the son makes addition C to the property. For purposes of 
determining the amount of gain recognized under section 1250(a) to Green 
upon the transfer, the determination of whether addition A is an 
improvement is made without taking into account additions B and C. For 
purposes of determining the amount of gain recognized under section 
1250(a) upon a subsequent disposition of the property by the son, 
additions B and C would be taken into account in the determination of 
whether A is an improvement, and A would be taken into account in the 
determination of whether B and C are improvements.
    Example 3. Assume the same facts as in example (2). Assume further 
that on September 15, 1965, the son transfers the property to a 
corporation in exchange for cash and stock in the corporation in a 
transaction qualifying under section 351 (see paragraph (c) of Sec.  
1.1250-3), and that the corporation uses a fiscal year ending November 
30. For purposes of determining the amount of gain recognized under 
section 1250(a) upon a subsequent disposition by the corporation, the 
one-year

[[Page 524]]

test under subdivision (i) of this subparagraph is made for the entire 
taxable year of Green and of the son ending on December 31, 1965, and in 
respect of the corporation's taxable year ending November 30, 1965. 
Accordingly, if on December 7, 1965, addition D is made by the 
corporation, then, upon a subsequent disposition by the corporation, D 
is taken into account for purposes of the determination in respect of 
the entire taxable year of Green and of the son ending on December 31, 
1965, and for the corporation's taxable year ending November 30, 1966, 
but not for purposes of the corporation's taxable year ending November 
30, 1965. If D were made on January 3, 1966, D would still be taken into 
account for purposes of the determination in respect of the 
corporation's taxable year ending November 30, 1966. However, since 
neither Green nor his son actually owned the property on any day of the 
taxable year ending December 31, 1966, no determination is made in 
respect of such taxable year of Green or of the son.

    (4) 36-month test for separate improvement. (i) If, during the 36-
month period ending on the last day of any taxable year (including a 
short taxable year and the entire taxable year in which the disposition 
occurs), the sum of the amounts treated under subparagraph (3) of this 
paragraph as improvements for such period exceeds the greatest of:
    (a) 25 percent of the adjusted basis of the property,
    (b) 10 percent of the unadjusted basis (determined under 
subparagraph (3)(ii) of this paragraph) of the property, or
    (c) $5,000,

Then each such improvement during such period shall be treated as a 
separate improvement, and thus as an element. For purposes of (a) and 
(b) of this subdivision, the adjusted basis (or unadjusted basis) of 
section 1250 property shall be determined as of the beginning of the 36-
month period, or as of the beginning of the holding period of the 
property (within the meaning of Sec.  1.1250-4), whichever is the later.
    (ii) In respect of a particular disposition of section 1250 property 
by a person:
    (a) There shall not be taken into account under the 36-month test 
for separate improvements in this subparagraph any amount treated under 
subparagraph (3) of this paragraph as an improvement which arises by 
reason of (or after) the disposition or which arises before the 
beginning of the holding period under Sec.  1.1250-4 of such person for 
the property, and
    (b) Such test shall be made in respect of each 36-month period 
ending on the last day of each taxable year of such person (and of any 
prior transferor) if at least 1 day of such period is included under 
Sec.  1.1250-4 in such person's holding period for the property, except 
that (1) such test shall be made for a 36-month period ending on the 
last day of a taxable year of such person only if such person actually 
owned the property on at least 1 day of such period, and (2) such test 
shall be made for a 36-month period ending on the last day of a taxable 
year of such prior transferor only if such prior transferor actually 
owned the property on at least 1 day of such period.
    (iii) For illustration of the principles of subdivision (ii) of this 
subparagraph, see examples (2) and (3) in subparagraph (3)(iv) of this 
paragraph.
    (5) Example. The application of this paragraph may be illustrated by 
the following example:

    Example: (i) On December 31, 1967, X, a calendar year taxpayer, 
purchases an item of section 1250 property at a cost of $100,000. In the 
table below, the adjusted basis and unadjusted basis of the property are 
shown for the beginning of January 1 of each taxable year and it is 
assumed that each addition to capital was added on January 1 of the year 
shown.

----------------------------------------------------------------------------------------------------------------
                                                                                          1 percent
                                                                   Adjusted  Unadjusted       of
                               Year                                  basis      basis     unadjusted   Addition
                                                                                            basis
----------------------------------------------------------------------------------------------------------------
1969.............................................................   $94,000   $100,000        $1,000   A-$10,000
1970.............................................................    97,030    110,000         1,100     B-4,000
1971.............................................................    94,041    114,000         1,140     C-6,000
1972.............................................................    92,799    120,000         1,200  ..........
1973.............................................................    86,158    120,000         1,200    D-18,000
----------------------------------------------------------------------------------------------------------------

    (ii) Since each addition to capital account for the property exceeds 
the greater of $2,000 or one percent of unadjusted basis, determined as 
of the beginning of the taxable year in which made, each addition to 
capital account qualifies as an improvement under subparagraph (2) of 
this paragraph.
    (iii) Since the beginning of the holding period of the property 
under Sec.  1.1250-4 (Jan. 1, 1968) is later than the beginning of the 
36-month period ending on December 31, 1969, the determination as to 
whether there are any separate improvements on the property as of 
December 31, 1969, is made by examining the adjusted basis (or 
unadjusted basis) of the property as of the beginning of January 1, 
1968. As of December 31, 1969, there

[[Page 525]]

were no separate improvements on the property since the only amount 
treated as an improvement for the period beginning on January 1, 1968, 
and ending on December 31, 1969, in addition A (costing $10,000), which 
is less than $25,000, that is, 25 percent of the adjusted basis 
($100,000) of the property as of the beginning of January 1, 1968.
    (iv) As of December 31, 1970, there were no separate improvements on 
the property since the sum of the amounts treated as improvements for 
the 36-month period ending on December 31, 1970, is $14,000 (that is, 
$10,000 for A, plus $4,000 for B), and this sum is less than $25,000, 
that is, 25 percent of the adjusted basis ($100,000) of the property as 
of the beginning of January 1, 1968.
    (v) As of December 31, 1971, there were no separate improvements on 
the property since the sum of the amounts treated as improvements for 
the 36-month period ending on December 31, 1971, is $20,000 (that is, 
$10,000 for A, plus $4,000 for B, plus $6,000 for C), and this sum is 
less than $23,500, that is, 25 percent of the adjusted basis ($94,000) 
of the property as of the beginning of January 1, 1969.
    (vi) As of December 31, 1972, there were no separate improvements on 
the property since the sum of the amounts treated as improvements for 
the 36-month period ending on December 31, 1972, is $10,000 (that is, 
$4,000 for B plus $6,000 for C), and this sum is less than $24,258 that 
is, 25 percent of the adjusted basis ($97,030) of the property as of the 
beginning of January 1, 1970.
    (vii) As of December 31, 1973, C and D are separate improvements 
(notwithstanding that as of December 31, 1971 and 1972, C was not a 
separate improvement) since the sum of the amounts added for the 36-
month period ending December 31, 1973, is $24,000 (that is, $6,000 for C 
plus $18,000 for D), and this sum exceeds the greatest of:
    (a) $23,510, that is, 25 percent of the adjusted basis ($94,041) of 
the section 1250 property as of the beginning of January 1, 1971,
    (b) $11,400, that is, 10 percent of the unadjusted basis ($114,000) 
of the property as of the beginning of such first day, or
    (c) $5,000.

    (e) Additional depreciation and holding period of property acquired 
in certain transactions--(1) Transferred basis. If property consisting 
of two or more elements is disposed of, and if the holding period of the 
property in the hands of the transferee for purposes of computing 
applicable percentage includes the holding period of the transferor by 
reason of the application of paragraph (c) (other than subparagraph (2) 
thereof) of Sec.  1.1250-4, then the additional depreciation for each 
element of the property in the hands of the transferee immediately after 
the transfer shall be computed in the manner set forth in this 
subparagraph. First, any element having a deficit in additional 
depreciation in the hands of the transferor immediately before such 
transfer shall be considered to have the same deficit in the hands of 
the transferee. Second, elements having additional depreciation in the 
hands of the transferor immediately before the transfer shall be 
considered to have additional depreciation in the hands of the 
transferee. The sum of the transferee's additional depreciation for all 
elements of the property having additional depreciation in the hands of 
the transferor shall be an amount equal to the additional depreciation 
in respect of the property as a whole immediately after the transfer 
increased by the sum of the deficits in addition depreciation for all 
elements having such deficits. In case there is more than one element 
having additional depreciation, the additional depreciation for any such 
element in the hands of the transferee shall be computed by multiplying 
(i) the amount computed under the preceding sentence by (ii) the 
additional depreciation for such element in the hands of the transferor 
divided by the sum of the additional depreciation for all such elements 
having additional depreciation in the hands of the transferor. For 
purposes of computing applicable percentage, the holding period for an 
element of such property in the hands of the transferee shall include 
the holding period of such element in the hands of the transferor.
    (2) Example. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following example:

    Example: Section 1250 property has additional depreciation of 
$16,000 of which $12,000 is additional depreciation for element X and 
$4,000 for element Y. The property is transferred to a corporation in 
exchange for cash of $6,000 and for stock in the corporation. Assume 
that recognition of gain under section 1250(a) is limited to $6,000 (the 
amount of cash received) by reason of the application of section 351(b) 
(relating to transfer to corporation controlled by transferor) and 
section 1250(d)(3) (relating to limitation on application of section 
1250 in certain tax-free transactions). Under paragraph (c)(3)(i) of 
Sec.  1.1250-3, the additional depreciation for the property in the 
hands of the corporation immediately after the transfer is $10,000, that

[[Page 526]]

is, the additional depreciation for the property in the hands of the 
transferor immediately before the transfer ($16,000) minus the gain 
under section 1250(a) recognized upon the transfer ($6,000). Under 
subparagraph (1) of this paragraph, in the hands of the corporation 
immediately after the transfer element X has additional depreciation of 
$7,500 (\12/16\ of $10,000) and element Y as additional depreciation of 
$2,500 (\4/16\ of $10,000). Under paragraph (d)(2)(ii) of this section 
there is an addition of $6,000 to the capital account for the property.

    (3) Principal residence. If a principal residence consisting of two 
or more elements is disposed of, and if for purposes of computing 
applicable percentage the holding period of the principal residence 
acquired includes the holding period of the principal residence disposed 
of by reason of the application of paragraph (d) of Sec.  1.1250-4, then 
the additional depreciation (or a deficit in additional depreciation) 
for an element of the principal residence acquired immediately after the 
transaction shall be determined in a manner consistent with the 
principles of subparagraph (1) of this paragraph. For purposes of 
computing applicable percentage, the holding period for an element of 
the principal residence acquired includes the holding period of such 
element of the principal residence disposed of, but not the period 
beginning on the day after the date of the disposition and ending on the 
date of the acquisition.
    (f) Holding period for small separate improvements--(1) General. 
This paragraph prescribes a special holding period solely for the 
purpose of computing the applicable percentage of a separate improvement 
(as defined in paragraph (d) of this section) which is treated as an 
element. See paragraph (a)(2)(ii) of this section for determination of 
holding period under section 1223 for purposes of computing additional 
depreciation. In respect of section 1250 property, if the amount of a 
separate improvement does not exceed the greater of:
    (i) $2,000, or
    (ii) One percent of the unadjusted basis (within the meaning of 
paragraph (d)(3)(ii) of this section) of such property, determined as of 
the beginning of the taxable year in which such separate improvement was 
made,

Then such separate improvement shall be treated for purposes of 
computing applicable percentage as placed in service on the first day, 
of a calendar month, which is the closest such first day to the middle 
of the taxable year. See the last sentence of section 1250(f)(4)(B). If 
two such first days are equally close to the middle of the taxable year, 
the earliest of such days is the applicable day.
    (2) Example. The application of this paragraph may be illustrated by 
the following example:

    Example: (i) The unadjusted basis of section 1250 property as of the 
beginning of January 1, 1960, is $100,000. During the taxable year 
ending on December 31, 1960, the only additions to the capital account 
for the property are addition A on March 10, 1960, costing $1,200 and 
addition B on September 16, 1960, costing $1,400. Since the sum of the 
additions ($2,600) exceeds the greater of $2,000 and 1 percent of 
unadjusted basis ($1,000, that is, 1 percent of $100,000), each addition 
is an improvement under the 1-year test of paragraph (d)(3) of this 
section. Assume that the 36-month test of paragraph (d)(4) of this 
section is satisfied and, therefore, each addition is a separate 
improvement treated as an element.
    (ii) Since each element is less than $2,000, the provisions of this 
paragraph apply. Since there are 366 days in 1960, the middle of the 
year is at the end of 183 days, or July 1. Thus, that first day of a 
calendar month in 1960, which is the closest first day (of a calendar 
month) to the middle of the taxable year, is July 1, 1960. Accordingly, 
for purposes of computing applicable percentage, elements A and B are 
each treated as placed in service on July 1, 1960.

[T.D. 7084, 36 FR 275, Jan. 8, 1971, as amended by T.D. 7193, 37 FR 
12957, June 30, 1972; T.D. 7400, 41 FR 5103, Feb. 4, 1976]



Sec.  1.1251-1  General rule for treatment of gain from disposition 
of property used in farming where farm losses offset nonfarm income.

    (a) Applicability. The provisions of section 1251, this section, and 
Sec. Sec.  1.1251-2 through 1.1251-4 shall apply with respect to any 
taxable year beginning after December 31, 1969, but only if (1) there is 
a farm net loss (as defined in section 1251(e)(2) and paragraph (b) of 
Sec.  1.1251-3) for the taxable year, or (2) there is a balance in the 
excess deductions account (as described in Sec.  1251-2) as of the close 
of the taxable year before subtracting any amount under paragraph 
(c)(1)(i) of Sec.  1251-2. See section 1251(a). In general, a taxpayer 
who

[[Page 527]]

has a farm net loss and certain other taxpayers are required to 
establish and maintain an excess deductions account as provided in 
section 1251(b). Certain additions and subtractions are made to the 
excess deductions account, and upon the disposition of farm recapture 
property any gain to the extent of the balance in the excess deductions 
account is recognized as ordinary income under section 1251(c)(1). See 
paragraph (b)(1) of this section. Farm recapture property is, in 
general, certain farming property (other than section 1250 property) 
described in paragraph (1), (3), or (4) of section 1231(b). See 
paragraph (a) of Sec.  1.1251-3.
    (b) Ordinary income--(1) General rule. In general, subject to the 
provisions of subparagraphs (2), (3), (4), and (5) of this paragraph, 
upon a disposition of an item of farm recapture property during a 
taxable year beginning after December 31, 1969, the amount of which:
    (i) In the case of a sale, exchange, or involuntary conversion, the 
amount realized, or
    (ii) In the case of any other disposition, the fair market value of 
such property

exceeds the adjusted basis of such property shall be recognized under 
section 1251(c)(1) as gain from the sale or exchange of property which 
is neither a capital asset nor property described in section 1231 (that 
is, shall be recognized as ordinary income). The amount of gain 
recognized as ordinary income under section 1251(c)(1) shall be 
determined separately for each item of farm recapture property in a 
manner consistent with the principles of subparagraphs (4) and (5) of 
Sec.  1.1245-1(a) (relating to gain from dispositions of certain 
depreciable property). Generally, such ordinary income treatment applies 
even though in the absence of section 1251(c)(1) no gain would be 
recognized under the Code. For example, if a corporation distributes 
farm recapture property as a dividend gain may be recognized as ordinary 
income to the corporation even though, in the absence of section 
1251(c)(1), section 311(a) would preclude any recognition of gain to the 
corporation. For purposes of section 1251, the term disposition shall 
have the same meaning as in paragraph (a)(3) of Sec.  1.1245-1. For the 
relation of section 1251 to other provisions of the Code, see paragraph 
(e) of this section.
    (2) Limitation as to dispositions of land--(i) In general. In the 
case of a disposition of land, gain shall be recognized as ordinary 
income under section 1251(c)(1) only to the extent of the land's 
potential gain. See section 1251(c)(2)(C).
    (ii) Potential gain. For purposes of section 1251, the term 
potential gain means in respect of land an amount equal to the excess of 
its fair market value over its adjusted basis, but limited to the extent 
of the deductions allowable in respect to such land pursuant to an 
election (if any) under sections 175 (relating to soil and water 
conservation expenditures) and 182 (relating to expenditures by farmers 
for clearing land) for the taxable year of disposition and the four 
immediately preceding taxable years regardless of whether any such 
preceding taxable year begins before December 31, 1969. See section 
(e)(5).
    (iii) Cross reference. For additional recapture of certain 
deductions allowed under sections 175 and 182 in respect of farm land, 
see section 1252.
    (3) Exceptions and special rules. The amount of gain to be 
recognized as ordinary income under section 1251(c)(1) after applying 
subparagraph (2) of this paragraph, if applicable, shall be subject to 
the exceptions and special rules of section 1251(d) and Sec.  1.1251-4.
    (4) Limitation as to amount in excess deductions account--(i) In 
general. The aggregate of the amount of gain recognized as ordinary 
income under section 1251(c)(1) (after applying subparagraphs (2) and 
(3) of this paragraph, if applicable) shall not exceed the amount in the 
excess deductions account at the close of the taxable year after 
subtracting from the account the amount specified in section 
1251(b)(3)(A) and paragraph (c)(1)(i) of Sec.  1.1251-2. See section 
1251(c)(2)(A). For transfer of amount in an excess deductions account, 
see section 1251(b)(5).
    (ii) Dispositions taken into account. If the aggregate of the amount 
to which section 1251(c)(1) applies is limited for any taxable year by 
the application of subdivision (i) of this subparagraph, section 
1251(c)(1) shall apply in respect

[[Page 528]]

of dispositions of items of farm recapture property in the order made. 
See section 1251(c)(2)(B).
    (5) Relationship to section 1245. If property is disposed of which 
qualifies as both section 1245 property (as defined in section 
1245(a)(3)) as well as farm recapture property, then gain shall be 
recognized as ordinary income under section 1251(c)(1) only to the 
extent that the amount of any gain realized (in the case of a sale, 
exchange, or involuntary conversion), or to the extent that the excess 
of the fair market value of the property over its adjusted basis (in the 
case of any other disposition), was not recognized as ordinary income 
under section 1245(a)(1). The amount of gain recognized as ordinary 
income under section 1245(a)(1) upon a disposition of farm recapture 
property (i) is taken into account under paragraph (b)(2) of Sec.  
1.1251-3 for purposes of computing farm net loss (or farm net income) 
and (ii) is not under paragraph (c)(1)(ii) of Sec.  1.1251-2 subtracted 
from the excess deductions account.
    (6) Examples. The principles of this paragraph may be illustrated by 
the following examples:

    Example 1. A, an unmarried individual who uses the calendar year as 
his taxable year, makes one disposition of farm recapture property 
during 1970. On June 30, 1970, he sells for $75,000 farm recapture 
property (other than land) with an adjusted basis of $43,000 for a 
realized gain of $32,000 none of which is recognized under section 1245. 
The balance in A's excess deductions account is $39,000 at the close of 
1970 (after making the applicable additions and subtractions under 
section 1251(b) (2) and (3)(A)). Hence, the entire gain of $32,000 is 
recognized as ordinary income under section 1251(c)(1), and the balance 
remaining in A's excess deductions account is $7,000. If, however, the 
original balance in the excess deductions account were only $15,000, 
then only $15,000 would be recognized as ordinary income under section 
1251(c)(1) and A's excess deductions account balance would be reduced to 
zero. The remaining gain of $17,000 may be treated as gain from the sale 
or exchange of property described in section 1231.
    Example 2. M, a calendar year corporation makes one disposition of 
farm recapture property during 1975. On January 15, 1975, M distributes 
as a dividend to its shareholders land which it had acquired on March 3, 
1970. On that date, the excess of the fair market value ($67,500) over 
the adjusted basis of land ($45,000) is $22,500 and the sum of the 
deductions allowable in respect of such land under sections 175 and 182 
is $5,000 for 1970 and $13,000 for the taxable year of disposition and 
the four immediately preceding taxable years. Thus, the potential gain 
(as defined in subparagraph (2)(ii) of this paragraph) is limited to 
$13,000. At the end of M's taxable year (after making the applicable 
additions and subtractions under section 1251(b) (2) and (3)(A) there is 
a balance of $25,000 in the excess deductions account of M. Since such 
balance exceeds the potential gain, M recognizes $13,000 as ordinary 
income under section 1251(c)(1) even though, in the absence of that 
provision, section 311(a) would preclude recognition of gain to M. The 
balance in M's excess deductions account is reduced by $13,000, from 
$25,000 to $12,000. With respect to the treatment of the remaining gain 
($9,500) from the disposition of the land, see section 1252 and example 
(2) of paragraph (e) Sec.  1.1252-1.
    Example 3. Assume the same facts as in example (2), except that M 
makes a second disposition of farm recapture property during 1975. On 
June 5, 1975. M sells for $55,000 a breeding herd of cattle having an 
adjusted basis of $35,000 for a realized gain of $20,000. M had acquired 
the herd on April 1, 1971. Assume further that $6,000 of the $20,000 
gain realized is treated as ordinary income under section 1245(a)(1). 
Thus, the amount of gain M would recognize as ordinary income under 
section 1251(c)(1), computed before applying the excess deductions 
account limitation, is $14,000. In accordance with the computation in 
example (1) of paragraph (c)(2) of Sec.  1.1251-2, the excess deductions 
account limitations limit the maximum amount of gain which can be 
recognized as ordinary income under section 1251(c)(1) upon the 
disposition of the land and the breeding herd to $25,000. Under 
subparagraph (4)(ii) of this paragraph, the amount of such limitation, 
$25,000, is assigned to each property in the order of disposition. Thus, 
the amount of gain recognized as ordinary income under section 1251 is 
$13,000 (as in example (1) of this subparagraph) on the disposition of 
the land and $12,000 on the disposition of the breeding herd. The 
remaining gain of $2,000 (i.e., $14,000 minus $12,000) on the 
disposition of the breeding herd may be treated as gain from the sale or 
exchange of property described in section 1231.

    (c) Instances of nonapplication--(1) In general. Section 1251 does 
not apply with respect to dispositions of farm recapture property by a 
taxpayer during a taxable year if at the close of such year after making 
the necessary additions and subtractions under section 1251(b) (2) and 
(3)(A), there is no balance in the taxpayer's excess deductions account.

[[Page 529]]

    (2) Losses. Section 1251(c)(1) does not apply to losses. Thus, 
section 1251(c)(1) does not apply if a loss is realized upon a sale, 
exchange or involuntary conversion of property, all of which is farm 
recapture property, nor does the section apply to a disposition of such 
property other than by way of sale, exchange, or involuntary conversion 
if at the time of the disposition the fair market value of such property 
is not greater than its adjusted basis.
    (3) Certain dispositions of interests in land. Section 1251(c)(1) 
does not apply to dispositions of interests in land with respect to 
which no deductions were allowable pursuant to an election under section 
175 (relating to soil and water conservation expenditures) and 182 
(relating to expenditures by farmers for clearing land) for the taxable 
year of disposition and the four immediately preceding taxable years. 
For possible application of section 1252 in such a case, see example (1) 
of paragraph (e) of Sec.  1.1252-1.
    (d) Partnerships. [Reserved]
    (e) Relation of section 1251 to other provisions--(1) General. The 
provisions of section 1251 apply (after applying paragraph (b)(5) of 
this section, relating to section 1245 property) notwithstanding any 
other provision of subtitle A of the Code. Thus, unless an exception or 
special rule under section 1251(d) and Sec.  1.1251-4 applies, gain 
under section 1251(c)(1) is recognized notwithstanding any contrary 
nonrecognition provision or income characterizing provision. For 
example, section 1251 overrides section 1231 (relating to property used 
in a trade or business). Accordingly, gain recognized under section 
1251(c)(1) upon a disposition of farm recapture property will be treated 
as ordinary income to the extent of the balance in the taxpayer's excess 
deductions account, and only the remaining gain, if any, from the 
disposition may be considered as gain from the sale or exchange of a 
capital asset if section 1231 is applicable. See example (3) of 
paragraph (d)(6) of this section.
    (2) Nonrecognition sections overridden. The nonrecognition of gain 
provisions of subtitle A of the Code which section 1251 overrides 
include, but are not limited to, sections 267(d), 311(a), 336, 337, and 
512(b)(5). See section 1251(d) and Sec.  1.1251-4 for the extent to 
which 1251(c)(1) overrides sections 332, 351, 361, 371(a), 374(a), 721, 
1031, and 1033.
    (3) Treatment of gain not recognized under section 1251(c)(1). For 
treatment of gain not recognized under section 1251(c)(1), the 
principles of paragraph (f) Sec.  1.1251-6 shall be applicable. Thus 
section 1251 does not prevent gain which is not recognized under section 
1251 from being considered as gain under another provision of the Code, 
such as for example, section 1252(a)(1) (relating to treatment of gain 
from disposition of farm land). See example (1) of paragraph (e) of 
Sec.  1.1252-1.
    (4) Exempt income. With regard to exempt income, the principles of 
paragraph (e) of Sec.  1.1245-6 shall be applicable.
    (5) Normal retirement of asset in multiple asset account. Section 
1251(c)(1) does not require recognition of gain upon normal retirements 
of farm recapture property in a multiple asset account as long as the 
taxpayer's method of accounting, as described in paragraph (e)(2) of 
Sec.  1.167(a)-8 (relating to accounting treatment of asset 
retirements), does not require recognition of such gain.
    (6) Installment method--(i) In general. Gain from a disposition to 
which section 1251(c)(1) applies may be reported under the installment 
method if such method is otherwise available under section 453 of the 
Code. In such case, the income (other than interest) on each installment 
payment shall be deemed to consist of gain to which section 1251(c)(1) 
applies until all such gain has been reported, and the remaining portion 
(if any) of such income shall be deemed to consist of gain to which 
section 1251(c)(1) does not apply. For treatment of amounts as interest 
on certain deferred payments, see section 483. For adjustments in the 
excess deductions account, see paragraph (c)(1)(ii) of Sec.  1.1251-2.
    (ii) Special rule. If a taxpayer disposes of property used in the 
trade or business of farming which qualifies as both section 1245 
property as well as farm recapture property and elects to report the 
gain from such disposition under the installment method, then the income 
(other than interest) on each installment payment shall (a) first be

[[Page 530]]

deemed to consist of gain to which section 1245(a)(1) applies until all 
such gain has been reported, (b) The remaining portion (if any) of such 
income shall be deemed to consist of gain to which section 1251(e)(1) 
applies until all such gain has been reported, and (c) finally the 
remaining portion (if any) of such income shall be deemed to consist of 
gain to which neither section 1245(a)(1) nor 1251 (c)(1) applies. See 
paragraph (d)(3) of Sec.  1.1252-1 with respect to the installment 
method in regard to the disposition of property which is both farm 
recapture property as well as farm land (as defined in section 
1252(a)(2) and paragraph (a)(3)(i) of Sec.  1.1252-1).

[T.D. 7418, 41 FR 18814, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec.  1.1251-2  Excess deductions account.

    (a) Establishment and maintenance of account--(1) General rule. With 
respect to any taxable year beginning after December 31, 1969, any 
taxpayer who:
    (i) Has a farm net loss (as defined in section 1251(e)(2) and in 
paragraph (b) of Sec.  1.1251-3) for such a taxable year, or
    (ii) Has an excess deductions account balance as of the close of 
such a taxable year

shall establish (if not previously established) and maintain for 
purposes of section 1251 an excess deductions account. See section 
1251(b)(1). Once an excess deductions account is established (or 
succeeded to under paragraph (e) of this section in the case of certain 
corporate transactions and gifts) all entries (including the entries 
prescribed by paragraph (f) of this section with respect to married 
taxpayers who file joint returns) with respect to the account must be 
part of the taxpayer's permanent records for all taxable years for which 
the account must be maintained. For purposes of applying section 1251 
and this section, the term taxpayer in the case of a partnership means 
each partner of such partnership and in the case of an estate or trust 
means the estate or trust regardless of whether it is taxable under 
subpart A or E, subchapter J, chapter 1 of the Code.
    (2) Distributions from estate or trust. If farm recapture property 
is distributed from an estate or trust in a transaction to which section 
1251(d) (1) or (2) (relating to exceptions for gifts and transfers at 
death) applies, then the excess deductions account balance of the estate 
or trust shall be succeeded to by the distributee in the amount, if any, 
and manner prescribed in paragraph (e)(2) of this section. For purposes 
of the preceding sentence only, the rules of paragraph (e)(2) of this 
section shall be applied by treating each distribution as a gift at the 
time made. Thus; for example, if all of the farm recapture property of 
an estate or trust is distributed to a distributee on the date the 
estate or trust terminates, the distributee will succeed on that date to 
the excess deductions account balance of the estate or trust.
    (3) Exception. A taxpayer is not required to maintain an excess 
deductions account under subparagraph (1) of this paragraph for a 
taxable year if:
    (i) For such taxable year there would be no additions to the 
taxpayer's excess deductions account, and
    (ii) For the immediately preceding taxable year the balance in the 
taxpayer's excess deductions account was reduced to zero by reason of 
section 1251 (b)(3) (relating to subtractions from the account) or 
section 1251(b)(5) (relating to transfer of account).
    (b) Additions to account--(1) General rule. For each taxable year, 
there shall be added to the excess deductions account an amount equal to 
the taxpayer's farm net loss. See section 1251(b)(2)(A).
    (2) Exceptions. In the case of an individual and, in the case of an 
electing small business corporation (as defined in section 1371(b)), 
subparagraph (1) of this paragraph shall apply for a taxable year:
    (i) Only if the taxpayer's nonfarm adjusted gross income (as defined 
in paragraph (d) of Sec.  1.1251-3) for such year exceeds $50,000, and
    (ii) Only to the extent the taxpayer's farm net loss for such year 
exceeds $25,000.

The limitations of this subparagraph apply to a person (other than a 
trust) to whom the tax rates set forth in section 1 are applicable and 
as prescribed in subparagraph (3) of this paragraph in respect of an 
electing small business corporation.

[[Page 531]]

    (3) Electing small business corporation--(i) Taxable years ending 
before December 11, 1971. For taxable years ending before December 11, 
1971, in the case of an electing small business corporation (as defined 
in section 1371(b):
    (a) For purposes of subparagraph (2) of this paragraph, the term the 
taxpayer means such corporation or any one of its shareholders, and the 
term such year, in the case of a shareholder, means his taxable year 
with which or within which the taxable year of the corporation ends (see 
paragraph (d)(2) of Sec.  1.1251-3 for special rules relating to the 
computation of nonfarm adjusted gross income of a shareholder of an 
electing small business corporation), and
    (b) The limitations in subparagraph (2) of this paragraph shall not 
apply to the corporation for a taxable year if on any day of such year 
there is a taxpayer who is a shareholder having, for his taxable year 
with which or within which the taxable year of such corporation ends, a 
farm net loss (as defined in paragraph (b) of Sec.  1.1251-3).

For purposes of determining whether a shareholder of such corporation 
has a farm net loss, there shall not be taken into account his pro rata 
share of farm net income or loss of any other electing small business 
corporation for such corporation's taxable year ending with or within 
his taxable year.
    (c) The provisions of this subdivision (i) do not apply for purposes 
of determining whether the shareholder must make an addition to his 
excess deductions account and the amount of such addition.
    (ii) Taxable years ending after December 10, 1971. [Reserved]
    (4) Married individuals--(i) Lower limitations for separate returns. 
If married taxpayers file separate returns, then for purposes of this 
paragraph each spouse shall be treated as a separate individual. 
However, in such case, (a) the amount specified in subparagraph (2)(i) 
of this paragraph shall be $25,000 in lieu of $50,000, and (b) the 
amount specified in subparagraph (2)(ii) of this paragraph shall be 
$12,500 in lieu of $25,000. The lower limitations in the preceding 
sentence shall not apply if the spouse of the taxpayer does not have any 
nonfarm adjusted gross income for the taxable year. See section 
1251(b)(2)(C).
    (ii) Joint return. If married taxpayers for a taxable year file a 
joint return under section 6013, then for purposes of this paragraph 
they shall for such taxable year be treated as a single taxpayer. For 
rules applicable to establishing, maintaining, and allocating a joint 
excess deductions account, see paragraph (f) of this section.
    (5) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. For 1971, the M Corporation which uses the claendar year 
as its taxable year and which is not an electing small business 
corporation has a farm net loss of $40,000 and nonfarm taxable income of 
$45,000. Since subparagraph (2) of this paragraph does not apply to M, 
it is required to make a $40,000 addition to its excess deductions 
account.
    Example 2. For 1971, A, an unmarried individual who uses the 
calendar year as his taxable year, has a farm net loss of $33,000 and 
nonfarm adjusted gross income of $65,000. Under subparagraph (2) of this 
paragraph, A is required to make an addition of $8,000 to his excess 
deductions account (that is, the excess of the farm net loss, $33,000, 
over the $25,000 amount referred to in subparagraph (2)(ii) of this 
paragraph). If, however, A were a trust, the limitation in subparagraph 
(2) of this paragraph would not apply and such trust would be required 
to add $33,000 (the amount of the entire farm net loss) to its excess 
deductions account.
    Example 3. H and W each use the calendar year as the taxable year. 
For 1971, H, a married taxpayer who files a separate return, has a farm 
net loss of $45,000 and nonfarm adjusted gross income of $60,000. H's 
spouse W does not have any nonfarm adjusted gross income for 1971. Thus, 
the lower limitations in subparagraph (4)(i) of this paragraph do not 
apply. Accordingly, H is required to make an addition of $20,000 to his 
excess deductions account (that is, the excess of the farm net loss, 
$45,000, over the $25,000 amount referred to in subparagraph (2)(ii) of 
this paragraph).
    Example 4. Assume the same facts as in example (3), except that for 
1971 W has a farm net loss of $10,000 and nonfarm adjusted gross income 
of $30,000. Thus, the lower limitations in subparagraph (4)(i) of this 
paragraph do apply and H is required to make an addition of $32,500 to 
his excess deductions account (that is, the excess of his farm net loss, 
$45,000, over the $12,500 amount referred to in subparagraph (4)(i)(b) 
of this paragraph). Since, however, W did not have a farm net loss in 
excess of $12,500, she would not be required to make an addition to her

[[Page 532]]

excess deductions account. For the result if H and W were to file a 
joint return, see example (1) of paragraph (f)(6) of this section.
    Example 5. For 1970, the M Corporation, which uses the calendar year 
as its taxable year and which is an electing small business corporation, 
has a farm net loss of $35,000 and nonfarm adjusted gross income of 
$60,000. A, B, and C, the sole equal shareholders of M, are cash method 
taxpayers and each uses a fiscal year ending on March 31. For the 
taxable year ending March 31, 1971, A has a farm net loss of $5,000. 
Thus, as M's taxable year ends within the taxable year of A during which 
A has a farm net loss, the limitations in subparagraph (2) of this 
paragraph do not apply with respect to M for 1970. See subparagraph (1) 
of this paragraph, to add $35,000 to its excess deductions account.
    Example 6. Assume the same facts as in example (5), except that A's 
farm net loss occurred in his fiscal year ending March 31, 1970, and no 
shareholder of M has a farm net loss for the fiscal year ending March 
31, 1971. Thus, the limitations in subparagraph (2) of this paragraph do 
apply with respect to M for 1970, and accordingly M is required to add 
$10,000 to its excess deductions account for 1970 (that is, the excess 
of M's farm net loss $35,000, over the $25,000 amount referred to in 
subparagraph (2)(ii) of this paragraph).
    Example 7. Assume the same facts as in example (6), except that M 
has $45,000 of nonfarm adjusted gross income for 1970 and A, for his 
taxable year ending March 31, 1971, has $40,000 of nonfarm adjusted 
gross income, computed without regard to his interest in M. Assume the M 
paid no dividends. Since, under paragraph (d)(2) of Sec.  1.1251-3, A's 
income from M under section 1373(b) is computed on the basis of M's 
nonfarm adjusted gross income, A's gross income from M is $15,000 (\1/3\ 
of $45,000), and A's total nonfarm adjusted gross income is $55,000. 
Accordingly, M would be required to add $10,000 to its excess deductions 
account for 1970 for the reasons stated in example (6).
    Example 8. Assume the same facts as in example (7). Assume further 
that A is one of two equal shareholders in N, another electing small 
business corporation with a taxable year ending on January 31, and that 
N for its taxable year ending on January 31, 1971, has a $42,000 nonfarm 
loss and farm net income of $23,000. Assume that N paid no dividends. 
Thus, A for purposes of subparagraph (2)(i) of this paragraph, would 
only have a total of $34,000 of nonfarm adjusted gross income ($55,000) 
computed per example (7) minus $21,000 (A's share of N's nonfarm net 
operating loss (\1/2\ of $42,000) computed in accordance with paragraph 
(d)(2) of Sec.  1.1251-3)). Assuming that no other shareholder of M has 
nonfarm adjusted gross income in excess of $50,000, by reason of the 
$50,000 limitation in subparagraph (2)(i) of this paragraph, M makes no 
addition for 1971 to its excess deductions account. (N would make no 
addition to its excess deductions account as it does not have a farm net 
loss.) If, however, N were to have a nonfarm loss of only $8,000, A for 
purposes of subparagraph (2)(i) of this paragraph would have a total of 
$51,000 of nonfarm adjusted gross income ($51,000 of nonfarm adjusted 
gross income ($55,000, minus \1/2\ of N's nonfarm loss of $8,000)). 
Hence, with respect to M the result would be the same as in example (7) 
(and N would make no addition to its excess deductions account since it 
does not have a farm net loss).
    Example 9. D and E are equal individual shareholders in corporations 
X, Y, and Z, the stock of each corporation having recently been 
purchased from a different unrelated person. X, Y, and Z are electing 
small business corporations. D, E, and the corporations all use the 
calendar year as the taxable year. For 1970, the farm net income of D 
and E (determined without regard to their respective pro rata shares of 
the farm net income or loss of X, Y, and Z) are $100,000 and zero, 
respectively. For 1970, the farm net income or loss of the corporations 
are losses of $80,000 and $20,000 for X and Z, respectively, and income 
of $60,000 for Y. For 1970, the determinations under subparagraph 
(3)(ii) of this paragraph as to whether a shareholder of corporation X 
or Z (no determination is necessary with respect to Y since Y does not 
have a farm net loss) has a farm net loss are made as follows:

                             Determinations as to whether D or E has a farm net loss
----------------------------------------------------------------------------------------------------------------
                                                                       As to X                   As to Z
                                                             ---------------------------------------------------
                                                                   D            E            D            E
----------------------------------------------------------------------------------------------------------------
Farm net income (determined without regard to X, Y, and Z)..     $100,000           $0     $100,000           $0
Pro rata (\1/2\) share of corporation's farm net income (or
 loss):
  Of X......................................................  ...........  ...........     (40,000)     (40,000)
  Of Y......................................................       30,000       30,000       30,000       30,000
  Of Z......................................................     (10,000)     (10,000)  ...........  ...........
                                                             ---------------------------------------------------
    Farm net income (or loss) for purposes of determination.     $120,000      $20,000      $90,000    ($10,000)
----------------------------------------------------------------------------------------------------------------


[[Page 533]]


Accordingly, since the determination as to X indicates that neither D 
nor E has a farm net loss, the limitations of subparagraph (2) of this 
paragraph apply to X. Thus, assuming that X, D, or E has nonfarm 
adjusted gross income in excess of $50,000, X will add $55,000 to its 
excess deductions account, i.e., the excess of the farm net loss, 
$80,000, over the $25,000 amount referred to in subparagraph (2)(ii) of 
this paragraph. Since, however, the determination as to Z indicates that 
E has a farm net loss, such limitations do not apply to Z. Thus, the 
addition for 1970 to Z's excess deductions account is the entire amount 
of its farm net loss, $20,000.

    (c) Subtractions from account--(1) General rule. Under section 
1251(b)(3), if there is any amount in the excess deductions account at 
the close of a taxable year (determined after making any addition 
required under paragraph (b) of this section for such year but before 
making any reduction under this paragraph for such year), then the 
excess deductions account shall be reduced (but not below zero) by 
subtracting:
    (i) An amount equal to (a) the farm net income (as defined in 
section 1251 (e)(3) and in paragraph (c) of Sec.  1.1251-3) for such 
year, plus (b) the amount (as determined in subparagraph (3) of this 
paragraph) necessary to adjust the account for deductions for any 
taxable year which did not result in a reduction of the taxpayer's tax 
under subtitle A of the Code for such taxable year or any preceding 
taxable year, and
    (ii) After making any addition to the excess deductions account 
under paragraph (b) of this section and any reduction under subdivision 
(i) of this subparagraph for the taxable year, an amount equal to the 
sum of the amounts recognized as ordinary income solely by reason of the 
application of section 1251(c)(1). See section 1251(b)(3)(B). Thus, no 
amount shall be subtracted under this subdivision for gain recognized by 
reason of the application of section 1245(a)(1) or 1252(a)(1). For 
effect on computation of farm net loss or income of gain recognized 
under section 1245(a)(1) upon a disposition of farm recapture property, 
see paragraph (b)(2) of Sec.  1.1251-3. In the case of an installment 
sale of farm recapture property, the taxpayer's excess deductions 
account shall be reduced under this subdivision in the year of such sale 
by an amount equal to the gain (computed in the year of sale) to be 
recognized as ordinary income under section 1251(c)(1).
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples in which it is assumed that 
there is no subtraction for lack of tax benefit under subparagraph (3) 
of this paragraph:

    Example 1. Assume the same facts as in example (3) of paragraph 
(b)(6) of Sec.  1.1251-1. M's excess deductions account balance as of 
the close of 1975 is computed, in accordance with the additional facts 
assumed, in the table below:

                      M's Excess Deductions Account
 
 (1) Balance January 1, 1975............................         $26,000
(2) Additions for 1975..................................               0
                                         -----------------
(3) Subtotal............................................          26,000
(4) Subtractions for 1975 (farm net income \1\).........           1,000
                                         -----------------
(5) Excess deductions account limitation on gain                  25,000
 recognized as ordinary income under section 1251(c)(1)
 for 1975...............................................
(6) Subtraction for disposition of farm recapture
 property:..............................................
    (a) Gain from disposition of land to         $13,000
     which section 1251(c)(1) applies
     (computed before applying
     limitation.........................
    (b) Gain from disposition of                  14,000
     breeding herd to which section
     1251(c)(1) applies (computed before
     applying limitation)...............
                                         ----------------
    (c) Sum of lines (a) and (b)........          27,000
    (d) Excess deductions account                 25,000
     limitation (amount in line (5))....
                                         ================
(e) Gain recognized as ordinary income    ..............          25,000
 under section 1251(c)(1) (lower of line
 (6)(c) or line (6)(d)..................
                                                         ---------------
(7) Balance December 31, 1975...........  ..............               0
------------------------------------------------------------------------
 
\1\ Computed by treating the section 1245 gain of $6,000 under paragraph
  (b)(1)(ii) of Sec.   1.1251-3 as gross income derived from the trade
  or business of farming.


[[Page 534]]


For allocation of the $25,000 of gain recognized as ordinary income to 
the land and herd, and for treatment of the gain recognized in excess of 
$25,000 see example (3) of paragraph (b)(6) of Sec.  1.1251-1.
    Example 2. A is an unmarried individual who uses the calendar year 
as his taxable year. In 1971, A makes a single disposition of farm 
recapture property (other than land) realizing a gain of $46,000 of 
which $15,000 is recognized as ordinary income under section 1245(a)(1). 
The gain to which section 1251(c)(1) applies (computed before applying 
the excess deductions account limitation in section 1251(c)(2)(A) and 
paragraph (b)(4)(i) of Sec.  1.1251-1) is $31,000 (i.e., $46,000 minus 
$15,000). The treatment of the gain realized on the disposition in 
excess of the $15,000 recognized as ordinary income under section 
1245(a)(1) and the balance in A's excess deductions account as of the 
close of 1971 is computed, in accordance with the facts assumed, in the 
table below:

                      A's Excess Deductions Account
 
 (1) Balance January 1, 1971............................         $50,000
(2) Additions for 1971:
    (a) Farm net loss for 1971 \1\......          $5,000
    (b) Less amount in paragraph                  25,000
     (b)(2)(ii) of this section.........
    (c) Total additions for 1971........  ..............               0
                                                         ---------------
(3) Subtotal............................  ..............          50,000
(4) Subtractions for 1971...............  ..............               0
                                                         ---------------
(5) Excess deductions account limitation on gain                  50,000
 recognized as ordinary income under section 1251(c)(1)
 for 1971...............................................
(6) Subtraction for dispositions of farm
 recapture property:
    (a) Gain to which section 1251(c)(1)          31,000
     applies (computed before applying
     limitation)........................
    (b) Limitation (amount in line (5)..          50,000
                                         ================
    (c) Gain recognized as ordinary       ..............          31,000
     income under section 1251(c)(1)
     lower of line 6(a) or line 6(b)....
                                                         ---------------
(7) Balance December 31, 1971...........          19,000
------------------------------------------------------------------------
 
\1\ Computed by treating the section 1245 gain of $15,000 under
  paragraph (b)(1)(ii) of Sec.   1.1251-3 as gross income derived from
  the trade or business of farming.

    (3) Amount necessary to adjust the excess deductions account with 
respect to deductions which did not result in a reduction of the 
taxpayer's tax--(i) In general. Under section 1251(b)(3)(A), a 
subtraction is made from the excess deductions account to adjust the 
account for deductions that did not result in a reduction of the 
taxpayer's tax for the taxable year or any preceding taxable year. The 
amounts to be subtracted are determined under subdivisions (ii) and 
(iii) of this subparagraph in accordance with the rules in subdivision 
(iv) of this subparagraph. This subtraction shall be made before 
determining the amount of gain to which section 1251(c) applies. The 
amount subtracted under subdivision (ii) of this subparagraph is a 
temporary subtraction made solely to determine the amount in the excess 
deductions account for purposes of the limitation in section 1251(c)(2).
    (ii) Temporary subtraction. The amount temporarily subtracted from 
the excess deductions account for a taxable year is the sum of the farm 
portion of (a) any net operating loss for such taxable year which does 
not reduce taxable income (computed without regard to the deduction 
under section 172(a)) in a prior year, and (b) any net operating loss 
from a prior taxable year which is carried to such taxable year but 
which does not reduce taxable income (computed without regard to the 
deduction under section 172(a)) in such taxable year.
    (iii) Permanent subtraction. The amount permanently subtracted from 
the excess deductions account for a taxable year is the excess of the 
farm portion of any net operating loss which may be carried to the 
preceding year (reducing by the portion of such loss which reduced 
taxable income (computed without regard to the deduction under section 
172(a)) for such preceding year) over the amount of such loss which may 
be carried to the taxable year, but the subtraction shall not be made 
earlier than the taxable year in which the excess deductions account is 
increased by reason of such loss.

[[Page 535]]

    (iv) Rules of application. For purposes of this subparagraph, the 
following rules shall apply:
    (a) The farm portion of a net operating loss is that portion of such 
loss attributable to the trade or business of farming. Such portion and 
the remaining portion (hereinafter referred to as the nonfarm loss) 
shall be absorbed pro rata. If a farm net loss is not added to the 
excess deductions account in the year in which such loss occurs, the net 
operating loss (if any) for such year shall be treated as a nonfarm 
loss.
    (b) In the case of an individual (other than a trust), the farm 
portion of a net operating loss shall be decreased by an amount, if any, 
equal to the excess of $25,000 (or the amount determined under paragraph 
(b)(2)(ii) of this section) over the nonfarm adjusted gross income. Such 
amount shall be added to the nonfarm portion of such net operating loss.
    (c) The amounts considered as reducing taxable income under 
subdivision (ii) of this subparagraph in the taxable year shall be 
determined on the basis of a tentative computation of taxable income for 
such year in which the gain realized from the disposition of property to 
which section 1251(c)(1) applied shall be computed without regard to the 
excess deductions account limitation.
    (v) Example. The provisions of this subparagraph may be illustrated 
by the following example:

    Example: A is an unmarried individual who uses the calendar year as 
his taxable year. For the years 1970 through 1974, A's items of income 
and deductions are as shown in the table below. A's personal deductions 
are disregarded. A had no income or loss for any year prior to 1970. 
Based upon such amounts and the computations shown below, A must 
recognize as ordinary income under section 1251(c)(1), $35,325 for 1971, 
$10,000 for 1972, $3,925 for 1973, and $150,000 for 1974.

----------------------------------------------------------------------------------------------------------------
         Amounts assumed               1970            1971            1972            1973            1974
----------------------------------------------------------------------------------------------------------------
(a) Farm net income.............      ($250,000)         $20,000          $5,000       ($75,000)       ($10,000)
(b) Nonfarm income..............          55,000        (82,000)          30,000          10,000         200,000
(c) Gain which would be           ..............          88,000          10,000           2,000         150,000
 recognized as ordinary income
 under 1251(c) (computed without
 regard to the EDA limitation)
 (hereinafter referred to as
 farm property disposition).....
(d) Personal exemption..........             625             675             750             750             750
(e) Net operating loss (NOL)           (195,000)  ..............  ..............        (45,000)  ..............
 (computed per section 172(c))..
----------------------------------------------------------------------------------------------------------------
 
                                            I. COMPUTATIONS FOR 1971
 
1. Excess Deductions Account (EDA) Limitation for 1971:
  a. EDA on December 31, 1970:
    1970 Farm net loss..........................................................         250,000
      Less......................................................................        (25,000)
                                 ----------------
                                                                                         225,000         225,000
  b. Less farm net income for 1971..............................................  ..............        (20,000)
                                                 -----------------
  c. EDA before temporary subtraction...........................................  ..............         205,000
  d. Less temporary subtraction per subdivision (ii)(b):
    Aggregate farm NOL carryover to 1971........................................         195,000
      Less tentative farm NOL deduction for 1971:
        Farm net income.........................................          20,000
        Nonfarm income..........................................        (82,000)
        Farm property disposition...............................          88,000
        Exemption...............................................           (675)
                                 ----------------
        Tentative taxable income................................          25,325
        Tentative NOL reducing taxable income...................          25,325        (25,325)
                                 --------------------------------
                                                                  ..............         169,675       (169,675)
                                                                 -----------------
  e. EDA limitation for 1971....................................................................          35,325
                                 =================
2. 1971 Taxable Income:
  a. Farm net income............................................................................          20,000
  b. Nonfarm income.............................................................................       ($82,000)
  c. Farm property disposition..................................................................          88,000
  d. Exemption..................................................................................           (675)

[[Page 536]]

 
  e. Section 1202 deduction:
    Farm property disposition...................................................         $88,000
    Less amount treated as ordinary income under section 1251(c) (lesser of               35,325
     amount of gain on line 1(e))...............................................
                                 ----------------
    Capital gain................................................................          52,675
    Less 50 percent deduction...................................................          26,337        (26,338)
                                 ---------------------------------
  f. 1971 Taxable income........................................................  ..............         (1,013)
                                                 =================
 
                                            II. COMPUTATIONS FOR 1972
 
1. Excess Deductions Account Limitation for 1972:
  a. EDA (line 1(c) above)......................................................................         205,000
  b. Less recapture in 1971.....................................................................        (35,325)
  c. Less farm net income for 1972..............................................................         (5,000)
  d. Less permanent subtraction per subdivision (iii):
    1970 Farm NOL carryover to 1971.............................................         195,000  ..............
      Less 1970 farm NOL carryover to 1972 (computed per section 172(b)(2)):
        Farm NOL to 1971........................................        $195,000  ..............  ..............
        Less 1971 taxable income computed per
         section 172(b)(2):
          Farm net income.......................         $20,000
          Nonfarm income........................        (82,000)
          Farm property disposition.............          88,000
                                 ----------------
                                                          26,000        (26,000)
                                                 ----------------
        Farm NOL carryover to 1972..............         169,000      ($169,000)
                                 --------------------------------
                                                                  ..............          26,000       ($26,000)
                                 -------------------------------------------------------------------------------
  e. EDA before making temporary subtractions...................................................         138,675
  f. Less temporary subtraction per subdivision (ii)(b):
    Farm NOL carryover to 1972..................................................         169,000
      Farm net income...........................................           5,000
      Nonfarm income............................................          30,000
      Farm recapture disposition................................          10,000
      Exemption.................................................           (750)
                                 ----------------
      Tentative taxable income..................................          44,250
      Tentative NOL reducing taxable income.....................          44,250        (44,250)
                                 --------------------------------
                                                                  ..............         124,750       (124,750)
                                 -------------------------------------------------------------------------------
  g. EDA limitation for 1972....................................................................          13,925
                                 =================
2. Taxable Income for 1972:
  a. Farm net income............................................................................           5,000
  b. Nonfarm income.............................................................................          30,000
  c. Farm property disposition..................................................................          10,000
  d. Exemption..................................................................................           (750)
  e. Section 1202 deduction:
    Farm property disposition...................................................          10,000
    Less amount treated as ordinary income under section 1251(c) (lesser of               10,000               0
     amount of gain on line 1(g))...............................................
                                 ---------------------------------
  f. Taxable income before NOL deduction........................................................          44,250
  g. Net operating loss deduction...............................................................        (44,250)
 
  h. Taxable income for 1972....................................................................               0
                                 =================
 
                                           III. COMPUTATIONS FOR 1973
 
1. Excess Deductions Account Limitation for 1973:
  a. Line 1(e) above............................................................................         138,675
  b. Less recapture in 1972.....................................................................        (10,000)
  c. Less permanent subtraction per subdivision (iii):
    1970 Farm NOL carryover to 1972.............................         169,000
    Less 1970 Farm NOL reducing taxable income in 1972..........        (44,250)
                                 -----------------
                                                                         124,750         124,750
    Less 1970 Farm NOL carryover to 1973 computed per section
     172(b)(2):
      Farm NOL to 1972..........................................         169,000

[[Page 537]]

 
      1972 Taxable income computed per section 172(b)(2):
        Farm net income                                   $5,000
        Nonfarm income                                    30,000
        Farm recapture disposition                        10,000
                                 -----------------
                                                          45,000       ($45,000)
                                                 -----------------
      Farm NOL carryover to 1973................................         124,000      ($124,000)
                                                 -----------------
                                                                  ..............             750          ($750)
                                 -----------------
  d. EDA before making temporary subtractions...................................................        $127,925
  e. Less temporary subtraction per subdivision   ..............  ..............  ..............               0
   (ii)(a)-zero (since 1973 farm loss treated as
   nonfarm addition to NOL per subdivision
   (iv)(a)).....................................
  f. Less temporary subtraction per subdivision   ..............  ..............        $124,000
   (ii)(b): Aggregate farm NOL carryover to 1973
    Less tentative farm NOL deduction for 1973:
      Farm net income...........................................       ($75,000)
      Nonfarm income............................................          10,000
      Farm property disposition.................................          30,000
      Exemption.................................................           (750)
                                 ----------------
      Tentative taxable income..................................        (44,250)
      Tentative NOL reducing taxable income.....................               0               0
                                                 -----------------
                                                                                         124,000       (124,000)
                                                 -----------------
  g. EDA limitation for 1973....................................................................           3,925
                                 =================
2. Taxable Income 1973:
  a. Farm net income............................................................................        (75,000)
  b. Nonfarm income.............................................................................          10,000
  c. Farm property disposition..................................................................          20,000
  d. Exemption..................................................................................           (750)
  e. Section 1202 deduction:
    Farm property disposition...................................................          20,000
    Less amount treated as ordinary income under section 1251(c) (lesser of                3,925
     amount of gain on line 1(g))...............................................
                                 -----------------
    Capital gain................................................................          16,075
    Less 50 percent deduction...................................................           8,038         (8,037)
                                 ---------------------------------
  f. Taxable income for 1973....................................................................        (53,787)
                                 =================
 
                                            IV. COMPUTATIONS FOR 1974
 
1. Excess Deductions Account Limitation for 1974:
  a. Line 1(d) above............................................................................         127,925
  b. Less recapture in 1973.....................................................................        (13,925)
  c. Farm loss for 1974.........................................          10,000
    Plus farm NOL deduction (see Sec.   1.1251-3(b)(3)).........          45,000
                                 ----------------
                                                                          55,000          55,000
Less............................................................................          25,000
                                 ----------------
                                                                                          30,000          30,000
  d. Less permanent subtraction per subdivision (iii):
    1970 Farm NOL carryover to 1973.............................................         124,000
    Less 1970 farm NOL carryover to 1974 per section 172(b)(2)..................         124,000
                                 ----------------
                                                                                               0               0
                                                 -----------------
  e. EDA before making temporary subtractions...................................................         154,000
  f. Less temporary subtraction per subdivision (ii)(b):
    Aggregrate farm NOL carryover to 1974.......................................         124,000
    Less tentative farm NOL deduction in 1974:
      Farm net income...........................................        (10,000)
      Nonfarm income............................................         200,000
      Farm property disposition.................................         150,000
      Exemption.................................................           (750)
                                 ----------------
      Tentative taxable income..................................         339,250
      Tentative NOL deduction...................................         169,000

[[Page 538]]

 
    Farm portion of tentative NOL deduction.....................................         124,000
                                 ----------------
                                                                                               0               0
                                 -----------------
  g. EDA limitation for 1974....................................................................        $154,000
                                 =================
2. Taxable Income 1974:
  a. Farm net income............................................................................        (10,000)
  b. Nonfarm income.............................................................................         200,000
  c. Farm property disposition..................................................................         150,000
  d. Exemption..................................................................................           (750)
  e. Section 1202 deduction:
      Farm property disposition.................................................        $150,000
      Less amount treated as ordinary income under section 1251(c) (lesser of            150,000               0
       amount of gain on line 1(g)).............................................
                                 ---------------------------------
  f. Taxable income before NOL deduction........................................................         339,250
  g. Net operating loss deduction...............................................................       (169,000)
                                 -----------------
  h. Taxable income.............................................................................         170,250
----------------------------------------------------------------------------------------------------------------

    (vi) Electing small business corporation. (a) In the case of an 
electing small business corporation, the amounts to be subtracted under 
subdivisions (ii) and (iii) of this subparagraph, shall be the sum of 
the amounts under such subdivisions computed with respect to each 
shareholder of the corporation for the taxable year of the shareholder 
with which or within which the taxable year of the corporation ends, by 
applying (b) of this subdivision (vi), in lieu of subdivision (iv)(a) of 
this subparagraph.
    (b) For purposes of (a) of this subdivision, the farm portion of a 
shareholder's net operating loss is that portion of the net operating 
loss of such shareholder attributable to the corporation's farm net 
loss, and such portion and the remaining portion shall be considered to 
be absorbed pro rata. If a corporation's farm net loss is not added to 
its excess deduction account in the year in which such loss occurs, no 
portion of a shareholder's net operating loss for the taxable year of 
the shareholder with which or within which such taxable year of the 
corporation ends shall be attributable to such corporation's farm net 
loss.
    (d) Exception for taxpayers using certain accounting methods--(1) 
General rule. Under section 1251(b)(4), except to the extent that a 
taxpayer has succeeded to an excess deductions account as provided in 
paragraph (e) of this section (relating to receipt of farm recapture 
property in certain corporate and gift transactions), additions to the 
account shall not be required by a taxpayer who elects to compute 
taxable income from the trade or business of farming (as defined in 
paragraph (e)(1) of Sec.  1.1251-3:
    (i) By using inventories for all property which may be inventoried 
except as to property to which subdivision (ii) of this subparagraph 
applies, and
    (ii) In accordance with subparagraph (3) of this paragraph, by 
charging to capital account all expenditures paid or incurred which are 
properly chargeable to capital account including such expenditures which 
the taxpayer may, under chapter 1 of the Code or regulations prescribed 
thereunder, otherwise treat or elect to treat as expenditures which are 
not chargeable to capital account.

For rules as to procedure of making the election, effect of a change in 
method of accounting upon making the election, and conditions for 
revoking the election, see subparagraphs (4), (5), and (6), 
respectively, of this paragraph.
    (2) Inventories. The absence of property which may be inventories 
shall not preclude a taxpayer from making an election under section 
3251(b)(4). Any acceptable inventory method will satisfy the requirement 
of subparagraph (1)(i) of this paragraph.
    (3) Property chargeable to capital account--(i) In general. Property 
subject to the capitalization requirement prescribed in subparagraph 
(1)(ii) of this paragraph includes all property described in section 
1231(b) (1) and (3),

[[Page 539]]

without regard to any holding period therein provided, which is used in 
the trade or business of farming. Thus, for example, property subject to 
the capitalization requirement includes property used in the trade or 
business of farming of a character subject to the allowance for 
depreciation and real property so used regardless of the period held, 
and livestock used in the trade or business of farming which is held for 
draft, breeding, dairy, or sporting purposes regardless of the period 
held.
    (ii) Expenditures which must be capitalized. Expenditures subject to 
the requirement of subparagraph (1)(ii) of this paragraph are all 
expenditures, whether direct or indirect, paid or incurred, which are 
properly chargeable to capital account. For examples of the meaning of 
the term properly chargeable to capital account, see Sec. Sec.  1.61-4, 
1.162-12, 1.263(a)-1, and 1.263(a)-2, and paragraph (a)(4) (ii) and 
(iii) of Sec.  1.446-1. Other examples of expenditures referred to in 
subparagraph (1)(ii) of this paragraph are expenditures under sections 
175 (relating to soil and water conservation), 180 (relating to 
fertilizer, etc.), 182 (relating to land clearing), and 266 (relating to 
certain carrying charges) which (without regard to section 1251) a 
taxpayer may treat or elect to treat as expenditures which are not 
chargeable to capital account. Thus, for example, with respect to 
developing a farm, ranch, orchard, or grove, amounts properly chargeable 
to capital account include amounts paid or incurred for upkeep, taxes, 
interest, and other carrying charges, water for irrigation, fertilizing, 
controlling undergrowth, and the cultivating and spraying of trees. For 
a further example, with respect to a produced animal, amounts properly 
chargeable to capital account for the animal include all expenditures 
paid or incurred for producing the animal, such as for stud, breeding, 
and veterinary services, as well as all amounts paid or incurred with 
respect to the brood animal during the gestation period of the produced 
animal including all amounts paid or incurred for feed, maintenance, 
utilities, indirect overhead, depreciation, insurance, and carrying 
charges. Direct and indirect expenditures properly chargeable to capital 
account with respect to raising an animal may include, in addition to 
expenditures for feed, maintenance, etc., expenditures for training. 
Direct and indirect expenditures with respect to feed may include, in 
the case of a grazing operation, fees for the rental of grazing land, 
and the portion of all labor, taxes, interest, fencing costs, and 
carrying charges paid or incurred by the taxpayer allocable to grazing. 
For purposes of this subparagraph, reasonable allocations shall be made 
by the taxpayer of items between animals held for different purposes and 
as to each animal held. However, all amounts allocated to a brood animal 
during the period of gestation are, for purposes of this subparagraph, 
entirely chargeable to the capital of the produced animal.
    (iii) Unharvested crops. With respect to unharvested crops to which 
section 1231(b)(4) applies, see section 268 and paragraph (g) of Sec.  
1.1016-5 (relating, respectively, to disallowance of certain deductions 
and to adjustments to basis).
    (iv) Changes in character of property. If, in a taxable year 
subsequent to the first taxable year to which an election under section 
1251(b)(4) applies, property which was not subject to the requirements 
of subparagraph (1)(ii) of this paragraph becomes subject to such 
requirements, then the following rules shall apply:
    (a) The adjusted basis of such property at the beginning of the 
taxable year in which it becomes subject to the requirements of 
subparagraph (1)(ii) of this paragraph shall be equal to the amount its 
adjusted basis would have been on such date had it been accounted for in 
accordance with such requirements (taking into account, if applicable, 
the depreciation which would have been allowed as determined by the 
taxpayer using a period, salvage value, and methods that would have been 
proper).
    (b) At the beginning of the taxable year in which such property 
becomes subject to the requirements of subparagraph (1)(ii) of this 
paragraph:
    (1) If such property was not included in the opening inventory, the 
amount equal to the excess of its adjusted basis as computed in (a) of 
this subdivision

[[Page 540]]

over its adjusted basis as of the close of the preceding taxable year, 
or
    (2) If such property was included in the opening inventory, such 
opening inventory shall be reduced by the inventory value of such 
property included therein and the amount of the difference between the 
adjusted basis for the property computed in (a) of this subdivision and 
such inventory value,

Shall be added to gross income for such taxable year and shall be 
treated as gross income derived from the trade or business of farming 
under paragraph (b)(1)(ii) of Sec.  1.1251-3, except that if the 
difference in (b)(2) of this subdivision represents an excess of such 
inventory value over the adjusted basis for the property computed in (a) 
of this subdivision then such excess shall be subtracted from gross 
income for such taxable year and shall be treated as a deduction allowed 
which is directly connected with carrying on the trade or business of 
farming under paragraph (b)(1)(i) of Sec.  1.1251-3.
    (c) If any deductions for depreciation are treated as amounts which 
would have been allowed in a prior taxable year or years for purposes of 
(a) of this subdivision, such deduction shall be treated as having been 
allowed for purposes of applying sections 1245 and 1250 in the same 
taxable year or years and thus included in the amount of adjustments 
reflected in adjusted basis within the meaning of paragraph (a)(1)(ii) 
of Sec.  1.1245-2 or depreciation adjustments within the meaning of 
paragraph (d)(1) of Sec.  1.1250-2 (as the case may be).
    (d) For purposes of this subparagraph (3), if during a taxable year 
property becomes subject to the requirements of subparagraph (1)(ii) of 
this paragraph, it shall be considered subject to such requirements on 
each day it is held during such year.
    (e) The adjusted basis under (a) of this subdivision of property of 
a character subject to the allowance for depreciation shall be its basis 
for which deductions may be computed under section 167.
    (v) Example. The provisions of subdivision (iv) of this subparagraph 
may be illustrated by the following example:

    Example: On January 1, 1974, A, an individual taxpayer who in a 
previous year had elected under section 1251(b)(4) to compute income 
from the trade or business of farming by using inventories and by 
charging to capital account all items properly chargeable to capital 
under the rules of subdivision (ii) of this subparagraph, purchases a 
herd of six-month-old feeder calves for $13,000. During 1974, in 
connection with such herd, A incurred raising costs of $4,000 and 
carrying charges of $1,600 which would have been properly chargeable to 
capital account within the meaning of subparagraph (1)(ii) of this 
paragraph if the herd had not been included in inventory. A determines 
under his unit-livestock method that on December 31, 1974, the inventory 
value of the herd is $17,000. On March 1, 1975, A decides to use one-
half of the herd for breeding purposes with such part of the herd 
becoming subject to the capitalization requirements. On January 1, 1975, 
the adjusted basis for the animals held for breeding purposes, computed 
under the provisions of subdivision (iv)(a) of this subparagraph, is 
$9,300 (that is, the aggregate of one-half of the purchase price of 
$13,000 for the entire herd of feeder calves, $6,500, one-half of the 
carrying charges of $1,600 incurred during 1974 in connection with the 
entire herd, $800, and one-half of the $4,000 of raising costs incurred 
during 1974 for the entire herd, $2,000). There is no adjustment for the 
depreciation which would have been allowed since no animal in the herd 
had reached an acceptable breeding age. Therefore, A as of January 1, 
1975, must under the provisions of subdivision (iv)(b)(2) of this 
subparagraph subtract $8,500 from his opening inventory value of 
$17,000. However, A has not changed his method of accounting with 
respect to such animals. Under the provisions of subdivision (iv)(b)(2) 
of this subparagraph, A for 1975 will add $800 to his gross income (that 
is, the difference between the adjusted basis for the calves to be used 
for breeding purposes, $9,300, over the inventory value of such animals, 
$8,500). Such amount under the provisions of subdivision (iv)(b) shall 
be treated as gross income derived from the trade or business of farming 
under paragraph (b)(1) of Sec.  1.1251-3.

    (4) Time and manner of making election--(i) In general. The election 
under section 1251(b)(4) for any taxable year beginning after December 
31, 1969, shall be filed within the time prescribed by law (including 
extensions thereof) for filing the return for such taxable year. Such 
election shall be made and filed by attaching a statement of such 
election signed by the taxpayer to the return for the first taxable year 
for which the election is made. The statement shall contain a 
declaration that the taxpayer is making an election

[[Page 541]]

under section 1251(b)(4) of the Code and that taxable income from the 
trade or business of farming is computed by using inventories for all 
property, which may be inventoried and by charging to capital account 
all expenditures paid or incurred which are properly chargeable to 
capital account (including such expenditures which the taxpayer may, 
under chapter 1 of the Code or regulations prescribed thereunder, 
otherwise treat or elect to treat as expenditures which are not properly 
chargeable to capital account). Additionally, the statement must contain 
the information prescribed by subparagraph (5) of this paragraph, if 
applicable.
    (ii) Joint return. If for a taxable year taxpayers file a joint 
return under section 6013, the election referred to in subparagraph (1) 
of this paragraph must be made by both such taxpayers in accordance with 
the provisions of subdivision (i) of this subparagraph. If, however, in 
such case either of such taxpayers has for a previous taxable year made 
such an election, then only the taxpayer who has not made such election 
is required to comply with the provisions of subdivision (i) of this 
subparagraph. The taxpayer who previously made such an election shall 
attach a statement to the return specifying the taxable year for which 
the election was made and with whom the election was filed.
    (5) Change in method of accounting, etc.--(i) In general. If, in 
order to comply with an election made under section 1251(b)(4), a 
taxpayer must change his method of accounting (in computing taxable 
income from the trade or business of farming) by placing in inventory a 
class of items not previously treated as in an inventory or by charging 
to capital account a class of items which had been consistently treated 
as an expense or as part of inventory (see paragraph (e)(2)(ii)(b) of 
Sec.  1.446-1), the taxpayer will be deemed to have obtained the consent 
of the Commissioner as to such change in method of accounting solely as 
to such items and there shall be taken into account in accordance with 
section 481 of the Code and the regulations thereunder those adjustments 
which are determined to be necessary by reason of such change solely as 
to such items in order to prevent amounts from being duplicated or 
omitted. For purposes of section 481(a)(2), such change in method of 
accounting with respect to only such items shall be treated as a change 
not initiated by the taxpayer and, thus, under paragraph (a)(2) of Sec.  
1.481-1, no part of the adjustments required under section 481 with 
respect to such items shall be based on amounts which are taken into 
account in computing income (or which should have been taken into 
account had the new method of accounting been used) for taxable years 
beginning before January 1, 1954, or ending before August 17, 1954.
    (ii) Additional information. If, in order to comply with an election 
made under subparagraph (1) of this paragraph a taxpayer (or in the case 
of a joint return one or both taxpayers) changes his method of 
accounting, then in addition to the information required to be filed 
under subparagraph (4) of this paragraph the taxpayer must file on Form 
3115 as part of such election all the information described in paragraph 
(e)(3) of Sec.  1.446-1 (relating to change in method of accounting), 
but the time prescribed in paragraph (e)(3) of Sec.  1.446-1 for filing 
Form 3115 shall not apply.
    (iii) Election made before May 7, 1976. If an election referred to 
in subparagraph (1) of this paragraph was made before May 7, 1976, the 
taxpayer shall file not later than August 5, 1976, such information 
referred to in subparagraph (4) of this paragraph not previously 
required by applicable regulations to be filed in order to make such 
election, and, in addition, if subdivision (ii) of this subparagraph 
applies, the taxpayer shall file not later than August 5, 1976, on Form 
3115 the information referred to in subdivision (ii) of this 
subparagraph with the district director, or the director of the internal 
revenue service center, with whom the election was filed. For this 
purpose, Form 3115 shall be attached to a statement clearly identifying 
the election referred to in subparagraph (1) of this paragraph and the 
first taxable year to which it applied.
    (6) Revocability of election--(i) In general. An election referred 
to in subparagraph (1) of this paragraph is binding on the taxpayer or 
in the case of a

[[Page 542]]

joint return both taxpayers) for the taxable year of such election and 
for all subsequent taxable years (regardless of whether they continue to 
file a joint return) and may not be revoked except with the consent of 
the Commissioner. Since revocation would constitute a change in method 
of accounting, in order to secure the Commissioner's consent to the 
revocation of such an election and to a change of the taxpayer's method 
of accounting, all the provisions of paragraph (e)(3) of Sec.  1.446-1 
must be met including the requirement that Form 3115 must be filed 
within 180 days after the beginning of the taxable year in which it is 
desired to make the change. See section 481 and the regulations 
thereunder (relating to certain adjustments required by such changes).
    (ii) Revocation of elections made prior to May 7, 1976. If on or 
before May 7, 1976, an election under section 1251(b)(4) has been made, 
such election may be revoked without permission of the Commissioner by 
filing on or before August 5, 1976, with the district director or the 
director of the internal revenue service center with whom the election 
was filed a statement of revocation of an election under section 
1251(b)(4). If such election to revoke is for a period which falls 
within one or more taxable years for which an income tax returns shall 
be filed for any such taxable years for which the computation of taxable 
income is affected by reason of such revocation.
    (e) Transfer of excess deductions account--(1) Certain corporate 
transactions--(i) In general. Under section 1251(b)(5)(A), in the case 
of a transfer described in section 1251(d)(3) and paragraph (c)(2) of 
Sec.  1.1251-4 to which section 371(a) (relating to exchanges pursuant 
to certain receivership and bankruptcy proceedings), 374(a) (relating to 
exchanges pursuant to certain railroad reorganizations), or 381 
(relating to carryovers in certain corporate acquisitions) applies, the 
acquiring corporation shall succeed to and take into account as of the 
close of the day of distribution or transfer the excess deductions 
account of the transferor. Determinations under this subdivision shall 
be made under subdivisions (ii), (iii), and (iv) of this subparagraph 
regardless of whether section 381 applies. For treatment as farm 
recapture property of stock or securities received in certain transfers 
to controlled corporations to which section 1251(d)(3) (but not section 
1251(b)(5)(A)) applies, see section 1251(d)(6) and paragraph (f) of 
Sec.  1.1251-4.
    (ii) Acquiring corporation. For purposes of subdivision (i) of this 
subparagraph, determinations as to which corporation is the acquiring 
corporation shall be made under paragraph (b)(2) of Sec.  1.381(a)-1.
    (iii) Certain operating rules. For purposes of subdivision (i) of 
this subparagraph, the operating rules of section 381(b) and Sec.  
1.381(b)-1 shall apply. Thus, for example, except in the case of a 
reorganization qualifying under section 368(a)(1)(F) (whether or not 
such reorganization also qualifies under any other provision of section 
368(a)(1)), the amount of the excess deductions account of the 
transferor shall be computed, as of the close of the date of 
distribution or transfer (as determined under paragraph (b) of Sec.  
1.381(b)-1), as if the taxable year of the transferor closed on such 
date (regardless of whether the taxable year actually closed). In the 
case of a reorganization qualifying under section 368(a)(1)(F) (whether 
or not such reorganization also qualifies under any other provision of 
section 368(a)(1)), the acquiring corporation's excess deductions 
account shall be treated for purposes of section 1251 just as the 
transferor corporation's excess deductions account would have been 
treated if there had been no reorganization.
    (iv) Excess deductions account balance. For purposes of subdivision 
(i) of this subparagraph, the amount in the transferor's excess 
deductions account as of the close of the date of distribution or 
transfer referred to in subdivision (iii) of this subparagraph shall be 
the amount in such account determined after making all the applicable 
additions and subtractions under section 1251(b) (other than 
subtractions under paragraph (5)(A) of section 1251(b) and this 
subparagraph) for the taxable year ending (or considered ending) on such 
date including a subtraction by reason of gain (if any) recognized under 
section 1251(c)(1) by reason of a disposition

[[Page 543]]

which is in part a sale or exchange and in part a gift transaction to 
which section 1251(d)(1) and paragraph (a)(2) of Sec.  1.1251-4 apply.
    (2) Certain gifts--(i) In general. If farm recapture property is 
disposed of by gift (including for purposes of this paragraph in a 
transaction which is in part a sale or exchange and in part a gift or a 
transaction treated under paragraph (a)(2) of this section as a gift), 
and if such gift is made during any 1-year period (described in 
subdivision (ii) of this subparagraph) for which the potential gain 
limitation percentage (as computed in subdivision (iii) of this 
subparagraph) exceeds 25 percent, then the provisions of subdivision 
(iv) of this subparagraph shall apply in respect of such gift.
    (ii) One-year period. For purposes of this subparagraph, a 1-year 
period is a period of 365 days beginning on the date a gift is made by 
the donor.
    (iii) Potential gain limitation percentage. Under this subdivision, 
the potential gain limitation percentage for any such 1-year period is a 
percentage equal to (a) the sum of the potential gains (determined as of 
the first day of such period) on each item of farm recapture property 
held by such taxpayer on such first day disposed of by gift by the 
taxpayer during such period, divided by (b) the sum of the potential 
gains (determined as of the first day of such period) on all farm 
recapture property held by such taxpayer on such first day.
    (iv) Allocation ratio. With respect to each gift of property (to 
which the provisions of this subdivision apply) made during a taxable 
year, each donee shall succeed (at the time the first of such gifts is 
made during such taxable year) to the same proportion of (a) the donor's 
excess deductions account determined, as of the close of such taxable 
year of the donor, after making all the applicable additions and 
subtractions under section 1251(b) (other than subtractions under 
section 1251(b)(5) and this paragraph), as (b) the potential gain 
(determined immediately prior to the time the first of such gifts is 
made during such taxable year) on the property (held by the donor 
immediately prior to such time) received by such donee bears to (c) The 
aggregate potential gain (determined immediately prior to such time) on 
all farm recapture property held by the donor immediately prior to such 
time.
    (v) Definitions and certain special rules. For purposes of this 
subparagraph:
    (a) The term potential gain means an amount equal to the excess of 
the fair market value of property over its adjusted basis, but, in the 
case of land, limited under paragraph (b)(2)(ii) of Sec.  1.1251-1 to 
the extent of the deductions allowable in respect of such land pursuant 
to an election (if any) under sections 175 (relating to soil and water 
conservation expenditures) and 182 (relating to expenditures by farmers 
for clearing land) for the taxable year of disposition and the four 
immediately preceding taxable years regardless of whether any such 
preceding taxable year begins before December 31, 1969. See section 
1251(e)(5).
    (b) Property held on the first day of a one-year period shall 
include property received by gift during such one-year period and the 
potential gain with respect to such property, for purposes of making the 
computations under this subparagraph, shall be the potential gain in the 
hands of the donor reduced by the amount of gain (in the case of an 
exchange which is part a sale and part a gift) taken into account by the 
donor.
    (c) Property held by a taxpayer on the first day of a one-year 
period which property becomes farm recapture property in the hands of 
such taxpayer during such one-year period shall be considered to be farm 
recapture property on each day of such one-year period.
    (vi) Part-sale-part-gift transaction. If property is disposed of in 
a transaction which is in part a sale or exchange and in part a gift, 
then for purposes of subdivisions (iii)(a) and (iv)(b) of this 
subparagraph the potential gain with respect to the property transferred 
shall be reduced by the amount of gain taken into account by the 
transferor.
    (vii) Joint return. For application of the provisions of this 
subparagraph with respect to a taxable year for which a joint return is 
filed, see paragraph (f)(4) of this section.
    (3) Examples. The provisions of subparagraph (2) of this paragraph 
may be illustrated by the following examples

[[Page 544]]

in which it is assumed that all taxpayers are unmarried individuals.

    Example 1. The only farm recapture property A owns is a farm, 
consisting of farm land and certain farm equipment which is farm 
recapture property. During the period involved, there was no deduction 
allowable under section 175 or 182 to any person owning an interest in 
the farm. A, who uses the calendar year as his taxable year, makes a 
series of gifts of undivided interests in the farm. In these 
circumstances, computations may be made by reference to percentages of 
undivided interests in the farm. The potential gain limitation 
percentages for each applicable 1-year period are computed, in 
accordance with the additional facts assumed, in the table below:

------------------------------------------------------------------------
                                 9/1/70    8/1/71     3/1/72     5/1/73
      Date Gift to donee      ------------------------------------------
                                   C          D         E          F
------------------------------------------------------------------------
(1) Percent of undivided             20%       10%        10%        60%
 interest in entire farm
 given as gift by A on date
 indicated...................
(2) Percent of undivided            100%       80%        70%        60%
 interest in entire farm held
 by A immediately before gift
(3) Potential gain:..........
    (a) On all property held    $100,000   $96,000   $140,000   $125,000
     by A on date of gift....
    (b) Limitation percentage        30%       25%     14.28%       100%
     (sum of amounts in line
     (1) during 1-year period
     beginning on date of
     gift divided by line
     (2))....................
------------------------------------------------------------------------

    (ii) Under subparagraph (2)(iv) of this paragraph, C, D, and F each 
succeed to the proportion of A's excess deductions account at each 
applicable time as computed in accordance with the additional facts 
assumed, in the table below:

----------------------------------------------------------------------------------------------------------------
                                                                       Taxable year ending--
                                                 ---------------------------------------------------------------
                                                   Dec. 31, 1970   Dec. 31, 1971   Dec. 32, 1972   Dec. 31, 1973
----------------------------------------------------------------------------------------------------------------
Gift to donee to which subparagraph (2)(iv) of                 C               D               E               F
 this paragraph applies during taxable year.....
(4) Potential gain (determined immediately prior
 to time first gift to which subparagraph
 (2)(iv) of this paragraph applies is made):
    (a) On property received by donee to which           $20,000         $12,000  ..............        $125,000
     such subparagraph (2)(iv) applies (line
     (3)(a) multiplied by line (1) divided by
     line (2))..................................
    (b) Aggregate potential gain on all farm            $100,000         $96,000  ..............        $125,000
     recapture property held by donor (line
     (3)(a))....................................
(5) Allocation ratio (line (4)(a), divided by                20%           12.5%  ..............            100%
 line (4)(b))...................................
(6) Excess deductions account of A:.............
    (a) At end of previous taxable year.........               0        $160,000        $210,000        $200,000
(b) Net increase (decrease) for taxable year            $200,000         $80,000       ($10,000)         $36,000
 (determined before making any subtractions
 under section 1251(b)(5) and this paragraph)...
    (c) At 12/31 (so determined)................        $200,000        $240,000        $200,000        $236,000
    (d) Less: Portion to which donee succeeds            $40,000         $30,000              $0        $236,000
     (line (5), multiplied by line (6)(c))......
    (e) At 12/31 (to line (6)(a) following              $160,000        $210,000        $200,000              $0
     taxable year)..............................
----------------------------------------------------------------------------------------------------------------

    Since the potential gain limitation percentage for the 1-year period 
beginning on September 1, 1970, exceeds 25 percent, a portion of A's 
excess deductions account, under the provisions of subparagraph (2)(iv) 
of this paragraph, is succeeded to by C and D. Similarly, since such 
percentage for the 1-year period beginning May 1, 1973, exceeds 25 
percent, such provisions apply to the gift made to F. Since, however, 
such percentage is 25 percent or less for all 1-year periods in which 
the gift to E falls (i.e., 25 percent and 14.28 percent for the 1-year 
periods beginning, respectively, on August 1, 1971, and March 1, 1972) 
such provisions do not apply to the gift to E.
    Example: 2. (i) G uses the calendar year as his taxable year and H 
uses a taxable year ending June 30. As of the close of 1972, G has 
$100,000 in his excess deductions account, determined before any 
subtractions under section 1251(b)(5) and this paragraph. G owns only 
three items of farm recapture property, none of which is land. On May 1, 
1972, G makes a gift of farm recapture property No. 1 to his son and on 
September 1, 1972, G sells to H for $80,000 farm recapture property No. 
2 in a transaction which is in part a sale and in part a gift. G owns 
throughout all relevant periods farm recapture property No. 3. The 
potential gain limitation percentage for G's one-year period beginning 
May 1, 1972, is

[[Page 545]]

computed in accordance with the additional facts assumed in the table 
below:

------------------------------------------------------------------------
                    Farm Recapture Property
---------------------------------------------------------------   Total
             No. 1                No. 2     No. 3
------------------------------------------------------------------------
(1) Fair market value 5/1/72..   $25,000   $100,000   $800,000
(2) Adjusted basis 5/1/72.....   $10,000    $60,000   $795,000
                               -----------------------------------------
(3) Potential gain (line (1),    $15,000    $40,000     $5,000   $60,000
 minus line (2))..............
                               =========================================
(4) Sum of potential gains on    $15,000    $20,000  .........   $35,000
 properties disposed of by
 gift during period less gain
 taken into account by
 transferor on part-sale-part-
 gift.........................
(5) Potential gain limitation   ........  .........  .........  58\1/3\%
 percentage (total line (4),
 divided by total line (3))...
------------------------------------------------------------------------


Since the potential gain limitation percentage for the one-year period 
beginning on May 1, 1972, exceeds 25 percent, the provisions of 
subparagraph (2)(iv) of this paragraph apply to the gift to the son and 
that portion of the disposition to H which is a gift.
    (ii) The portion of G's excess deductions account determined, as of 
the close of 1972, before any subtraction under section 1251(b)(5) and 
this paragraph, allocated to the son and to H as of May 1, 1972, is 
computed in the table below:

------------------------------------------------------------------------
                                             Property
                                  -----------------------------   Total
                                     No. 1     No. 2    No. 3
------------------------------------------------------------------------
(1) Potential gain under part (i)   $15,000   $40,000   $5,000   $60,000
 of this example (since the first
 day of the one-year period is
 the same as the time as of which
 the first gift was made during
 the taxable year)...............
(2) Potential gain less amount       15,000    20,000  .......  ........
 taken into account by transfer
 on part-sale-part-gift..........
(3) Allocation percentage (line         25%  33\1/3\%  .......  ........
 (2), divided by $60,000)........
(4) Excess deductions account at   ........  ........  .......   100,000
 close of taxable year (determine
 before making any subtractions
 under section 1251(b)(5) and
 this paragraph).................
(5) Portion to which donee           25,000    33,333  .......    58,333
 succeeds on 5/1/72..............
(6) G's excess deductions account  ........  ........  .......   $41,667
 12/31/72........................
------------------------------------------------------------------------

Accordingly, the amount of G's excess deduction account succeeded to as 
of May 1, 1972, is $25,000 by the son and $33,333 by H.

    (f) Joint return--(1) Joint excess deductions account. If for a 
taxable year a taxpayer and his spouse file a joint return under section 
6013, then for such taxable year each taxpayer shall (if necessary) 
establish and maintain a joint excess deductions account. Such joint 
excess deductions account shall consist of the aggregate of the 
separately maintained excess deductions account of each spouse. A 
separately maintained excess deductions account shall be computed under 
the rules of paragraphs (b) and (c) of this section, except that for 
each taxable year a joint return is filed:
    (i) The $50,000 amount in the nonfarm adjusted gross income 
limitation in paragraph (b)(2)(i) of this section shall be considered 
satisfied if the combined nonfarm adjusted gross income of both spouses 
exceeds $50,000,
    (ii) The $25,000 amount in the farm net loss exclusion in paragraph 
(b)(2)(ii) of this section shall be allocated between the two spouses in 
proportion to the farm net loss of each spouse having a farm net loss, 
and
    (iii) The separately maintained excess deductions account of each 
spouse shall be reduced, if necessary, below zero, by the amount of such 
spouse's farm net income (computed as if a separate return were filed) 
plus the amount of gain (computed under subparagraph (3) of this 
paragraph) which is recognized as ordinary income under section 
1251(c)(1) in respect of a disposition of farm recapture property owned 
by the taxpayer.
    (2) Surviving spouse. For purposes of this paragraph, a joint return 
does not include a return of a surviving spouse (as defined in section 2 
relating to a spouse who died during either of his two taxable years 
immediate preceding the taxable year) which is treated as a joint return 
of a husband and wife under section 6013.

[[Page 546]]

    (3) Application of excess deductions account limitation in joint 
return year. In the case of a taxable year for which a joint return is 
filed, the aggregate of the amount of gain recognized as ordinary income 
under section 1251(c)(1) (after applying paragraph (b) (2)(o) and (3) of 
Sec.  1.125-1, if applicable) shall not exceed the amount in the joint 
excess deductions account (that is, the aggregate of the separately 
maintained excess deductions account of each spouse) at the close of the 
taxable year after subtracting from each such separately maintained 
account the amount specified in section 1251(b) (3) (A) and paragraph 
(c) (1) (i) of this section as modified by the rules of this paragraph. 
For the amount of limitation for a taxable year for which a separate 
return is filed, see paragraph (b)(4) of this section. For 
determinations as to which dispositions are taken into account for any 
taxable year, see paragraph (b)(4) of Sec.  1.1251-1.
    (4) Certain gifts--(i) In general. If farm recapture property is 
transferred as a gift by a spouse to a person other than a spouse during 
a taxable year for which a joint return is filed, the spouses shall for 
purposes of applying the provisions of section 1251(b) (5) (B) and 
paragraph (e)(2) of this section be treated as a single taxpayer. Thus, 
under paragraph (e)(2) of Sec.  1.1251-2, the potential gain limitation 
percentage and the proportion for allocating the amount in the joint 
excess deductions account to one or more donees shall be determined by 
treating the spouses as a single taxpayer. However, with respect to each 
gift by a spouse, such spouse's separately maintained excess deductions 
account shall be reduced (below zero, if necessary) by the amount of the 
joint excess deductions account balance to which the donee of such gift 
succeeded under paragraph (e)(2)(iv) of this section.
    (ii) Gift between spouses. If farm recapture property is transferred 
by gift by one spouse to another spouse during a taxable year for which 
a joint return is filed, such gift shall not affect the balance in the 
joint excess deductions account but its effect on the separately 
maintained excess deductions account of each spouse shall be determined 
as if separate returns were filed, but only after applying subdivision 
(i) of this subparagraph.
    (5) Allocation of joint excess deductions account upon filing 
separate returns--(i) In general. If for any reason a taxpayer and his 
spouse cease to file a joint return, then except as provided in this 
subparagraph the amount of the separately maintained excess deductions 
account of each spouse as of the close of the last taxable year for 
which a joint return was filed shall be the amount of such spouse's 
excess deductions account as of the beginning of the first taxable year 
for which they cease filing a joint return.
    (ii) Deficit. If under subparagraph (4)(i) of this paragraph one of 
the spouses has a deficit in his separately maintained excess deductions 
account as of the close of the last taxable year for which a joint 
return was filed, then as of the beginning of the first taxable year for 
which they cease filing a joint return:
    (a) The spouse who had such deficit shall have an excess deductions 
account of zero, and
    (b) The other spouse shall have an excess deductions account equal 
to the amount prescribed in subdivision (i) of this subparagraph minus 
the amount of such deficit.
    (6) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 3. Assume the same facts as in example (4) of paragraph 
(b)(5) of this section, except that H and W file a joint return under 
section 6013 and that H has a farm net loss of only $40,000. Thus, since 
the nonfarm adjusted gross income for calendar year 1971 was $60,000 for 
H and $30,000 for W, their combined nonfarm adjusted gross income 
exceeds $50,000, thereby satisfying under subparagraph (1)(i) of this 
paragraph the $50,000 limitation of paragraph (b)(2)(i) of this section. 
Assume further that for 1971 only W makes a dispostion of farm recapture 
property (other than land and section 1245 property). As a result of 
such disposition, W realizes a gain of $14,000. Accordingly, for 1971, 
the separately maintained excess deductions accounts of H and W, their 
joint excess deductions account, and the treatment of the gain realized 
by W on the disposition of the farm recapture property are computed, in 
accordance with the facts assumed in the table below:

[[Page 547]]



                                           Excess Deductions Accounts
----------------------------------------------------------------------------------------------------------------
                                                                   H's                 W's                Joint
----------------------------------------------------------------------------------------------------------------
(1) Balance Jan. 1, 1971............................  ........   $10,000  ........    $5,000  ........   $15,000
(2) Additions for 1971:
  (a) Farm net loss for 1971........................   $40,000  ........   $10,000  ........   $50,000  ........
  (b) Less amount in paragraph (b)(2)(ii) of this       20,000  ........     5,000  ........    25,000  ........
   section as allocated under subparagraph (1)(ii)
   of this paragraph................................
                                                     ----------          ----------          ----------
  (c) Total additions for 1971......................  ........    20,000  ........     5,000  ........    25,000
                                                               ----------          ----------          ---------
(3) Subtotal........................................  ........    30,000  ........    10,000  ........    40,000
(4) Subtractions for 1971...........................  ........         0  ........         0  ........
                                                               ----------          ----------          ---------
(5) Excess deductions account limitation on gain      ........    30,000  ........    10,000  ........    40,000
 recognized as ordinary income under section
 1251(e)(1) for 1971................................
(6) Subtraction for dispositions of farm recapture
 property:
  (a) Gain to which section 1251(c)(1) applies               0  ........    14,000  ........    14,000  ........
   (computed before applying limitation)............
  (b) Limitation (amount in line (5))...............    30,000  ........    10,000  ........    40,000  ........
                                                     ==========          ==========          ==========
  (c) Gain recognized as ordinary income under        ........  ........  ........    14,000  ........    14,000
   section 1251(c)(1), computed for joint account
   (lower of line 6(a) or line 6(b) subject to
   provisions as to separately maintained accounts
   of subparagraph (1)(iii).........................
                                                               ----------          ----------          ---------
(7) Balance Dec. 31, 1971...........................  ........    30,000  ........   (4,000)  ........    26,000
----------------------------------------------------------------------------------------------------------------


If for 1972, H and W were to file separate returns, then the separately 
maintained excess deductions account balances as of January 1, 1972, 
would be $26,000 and zero respectively. See subparagraph (5)(ii) of this 
paragraph.

[T.D. 7418, 41 FR 18816, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec.  1.1251-3  Definitions relating to section 1251.

    (a) Farm recapture property--(1) In general. (i) The term farm 
recapture property means any property (other than section 1250 property 
as defined in section 1250(c)) which, in the hands of the taxpayer is or 
was property:
    (a) Which is described in section 1231(b)(1) (relating to business 
property held for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977), section 
1231(b)(3) (relating to livestock), or section 1231(b)(4) (relating to 
an unharvested crop), and
    (b) Which, at the time the property qualifies under (a) of this 
subdivision, is used in the trade or business of farming (as defined in 
paragraph (e) of this section).
    (ii) The term farm recapture property also includes:
    (a) Property acquired by gift and property acquired in a transaction 
to which section 1251(b)(5)(A) applies, if such property was farm 
recapture property within the meaning of subdivision (i) of this 
subparagraph in the hands of the transferor, and
    (b) Property the basis of which in the hands of the taxpayer holding 
such property is determined by reference to the basis of other property 
which in the hands of such taxpayer was farm recapture property within 
the meaning of subdivision (i) of this paragraph. For purposes of (b) of 
this subdivison (ii) property whose basis is determined in accordance 
with the last sentence of section 1033(c) shall be considered as having 
as basis determined by reference to the property whose conversion gave 
rise to the application of such section.
    (iii) Leasehold of farm recapture property. If property is farm 
recapture property under this subparagraph, a leasehold of such property 
is also farm recapture property is also farm recapture property to the 
same extent as described in, and in accordance with the principles of 
paragraph (a)(2) of Sec.  1.1245-3.
    (iv) If property described in subdivision (ii) of this subparagraph 
is stock or securities received in certain corporate transactions 
described in section 1251(d)(6), see paragraph (f) of Sec.  1.1251-4 for 
determination as to extent such stock or securities is farm recapture 
property.

[[Page 548]]

    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following example:

    Example: On December 15, 1971, A, an individual calendar year 
taxpayer engaged in the trade or business of farming (as defined in 
paragraph (e) of this section) exchanges in a transaction which 
qualifies under section 1031(a) (relating to an exchange of property 
held for productive use or investment) tractor No. 1 which A acquired on 
March 1, 1971, for tractor No. 2. Under subparagraph (1)(i) of this 
paragraph, tractor No. 1 is farm recapture property as the tractor was 
used in the trade or business of farming and was held for a period in 
excess of 6 months. Under subparagraph (1)(ii) of this paragraph, 
tractor No. 2 is farm recapture property as the basis of tractor No. 2 
in the hands of A is determined with reference to the adjusted basis of 
tractor No. 1.

    (b) Farm net loss--(1) In general. The term farm net loss means the 
amount by which:
    (i) The deductions allowed or allowable for the taxable year by 
chapter 1 of subtitle A of the Code which are directly connected with 
the carrying on of the trade or business of farming, exceed
    (ii) The gross income derived from such trade or business.
    (2) Disposition of farm recapture property. For purposes of 
subparagraph (1) of this paragraph, no gain or loss (regardless of how 
treated) resulting from the disposition of farm recapture property shall 
be taken into account, except that under subparagraph (1)(ii) of this 
paragraph gain upon disposition of such property which is recognized as 
ordinary income by reason of section 1245(a)(1) shall be taken into 
account. Thus, for example, if land used in the trade or business of 
farming were disposed of and gain of $3,000 was realized, then none of 
such gain would be taken into account in computing farm net loss and 
farm net income even if all or a portion of such gain is recognized as 
ordinary income by reason of section 1251(c)(1), section 1252(a)(1), or 
both. If such land were disposed of at a loss, the result would be the 
same. See paragraph (d)(1)(ii) of this section with respect to the 
exclusion of gain or loss from the disposition of farm recapture 
property from the computation of nonfarm adjusted gross income.
    (3) Amount of deduction under section 172(a) attributable to farm 
net loss. (i) If all or a portion of a net operating loss (within the 
meaning of section 172(c)) for a taxable year is absorbed in another 
taxable year as a carryover or carry back, then for purposes of 
determining the amount of deductions referred to in subparagraph (1)(i) 
of this paragraph for such other taxable year the portion of the amount 
absorbed in such other taxable year which is attributable to amounts 
directly connected with the carrying on of the trade or business of 
farming shall be an amount equal to the amount absorbed, multiplied by a 
fraction the numerator of which is the amount of the farm net loss for 
the taxable year the net operating loss arose (but not in excess of the 
net operating loss for such year) and the denominator of which is the 
amount of the net operating loss for such year.
    (ii) No portion of a farm net loss added to the excess deductions 
account in the year a net operating loss arose (or which would have been 
added to such account but for the application of the $25,000 or $12,500 
farm net loss exclusion under paragraph (b) (2)(ii) or (4)(i)(b) of 
Sec.  1.1251-2) shall be taken into account under subparagraph (1)(i) of 
this paragraph in any other taxable year. Accordingly the same farm net 
loss shall not be added to the excess deductions account more than once 
and a farm net loss for any taxable year shall not be subject to the 
$25,000 or $12,500 exclusion more than once.
    (iii) If a net operating loss for a current taxable year 
attributable in whole or part to a farm net loss is carried back and 
absorbed in a preceding taxable year no redetermination shall be made 
with respect to (a) the amount of gain recognized as ordinary income 
under section 1251(c)(1) and paragraph (b) of Sec.  1.1251-1 in any 
taxable year preceding the current taxable year, and (b) the amount of 
the taxpayer's excess deductions account allocated under paragraph 
(e)(2) of Sec.  1.1251-2 to a donee as of the close of any taxable year 
preceding the current taxable year.
    (4) Special rules as to estates and trusts. In the case of an estate 
or trust, computations of amounts under this paragraph shall be made 
without regard to

[[Page 549]]

any deductions under section 651 or 661. If on the termination of an 
estate or trust the beneficiaries succeeding to its property are allowed 
a deduction under section 642(h) (relating to unused loss carryovers and 
excess deductions on termination available to beneficiaries), to the 
extent the carryover or excess deduction is attributable to a farm loss 
it shall have the same character in the hands of the beneficiary as in 
the hands of the estate or trust. The amount of a carryover or of excess 
deductions from a particular taxable year of an estate or trust 
succeeded to under section 642(h) shall be allocated between amounts 
attributable to a farm net loss and other amounts in the same proportion 
as the farm net loss for such year bears to the amount of such carryover 
or of excess deductions. If there is more than one beneficiary, the 
total farm net loss succeeded to by all the beneficiaries shall be 
allocated to each beneficiary in proportion to the deduction of each 
under section 642(h).
    (c) Farm net income. The term farm net income means the amount by 
which the amount referred to in paragraph (b)(1)(ii) of this section 
exceeds the amount referred to in paragraph (b)(1)(i) of this section.
    (d) Nonfarm adjusted gross income--(1) In general. The term nonfarm 
adjusted gross income means adjusted gross income (taxable income in the 
case of a taxpayer other than an individual) computed without regard to:
    (i) Income or deductions taken into account in computing farm net 
loss and farm net income,
    (ii) Gains and losses (regardless of how treated) resulting from the 
disposition of farm recapture property, and
    (iii) In the case of an estate or trust, the principles of paragraph 
(b)(4) of this section, to the extent applicable, shall apply.
    (2) Special rules. The following rules in addition to the rules of 
subparagraph (1) of this paragraph, shall apply in computing the 
adjusted gross income of a shareholder of an electing small business 
corporation:
    (i) The amount of any distribution described in section 1373 (c)(2) 
made by the corporation shall be disregarded,
    (ii) For purposes of computing the amount includible in the gross 
income of a shareholder under section 1373(b), the corporation's 
undistributable taxable income shall equal the corporation's nonfarm 
adjusted gross income (as defined in subparagraph (1) of this paragraph) 
minus the amount described in section 1373(c)(1), and
    (iii) For purposes of computing a shareholder's deduction under 
section 1374, the corporation's net operating loss shall be computed 
without regard to the items referred to in subparagraph (1) (i) and (ii) 
of this paragraph.
    (e) Trade or business of farming--(1) In general. For purposes of 
section 1251, the term trade or business of farming includes any trade 
or business with respect to which the taxpayer may compute gross income 
under Sec.  1.61-4, expenses under Sec.  1.162-12, make an election 
under section 175, 180, or 182, or use an inventory method referred to 
in Sec.  1.471-6. Such term does not include any activity not engaged in 
for profit within the meaning of section 183 and section 183-2.
    (2) Horse racing. If a taxpayer is engaged in the raising of horses, 
including horses which are bred or purchased, then for purposes of 
section 1251 the term trade or business of farming also includes the 
racing of such horses by the taxpayer. Thus, for example, if a taxpayer 
purchases a yearling and develops it to the racing stage, the term trade 
or business of farming includes the racing of such horse.
    (3) Several businesses of farming. If a taxpayer is engaged in more 
than one trade or business of farming, all such trades and businesses 
shall be treated as one trade or business.

[T.D. 7418, 41 FR 18826, May 7, 1976, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]



Sec.  1.1251-4  Exceptions and limitations.

    (a) Exception for gifts--(1) General rule. Section 1251(d)(1) 
provides that no gain shall be recognized under section 1251(c)(1) upon 
a disposition by gift. For purposes of this paragraph, the term gift 
shall have the same meaning as in paragraph (a) of Sec.  1.1245-4 and, 
with respect to the application of this paragraph, principles 
illustrated by the examples of paragraph (a)(2) of Sec.  1245-4 shall 
apply. For reduction in amount of

[[Page 550]]

charitable contribution in case of a gift of farm recapture property, 
see section 170(e) and Sec.  1.170A-4.
    (2) Disposition in part a sale or exchange and in part a gift. Where 
a disposition of farm recpature property is in part a sale or exchange 
and in part a gift, the amount of gain recognized as ordinary income 
under section 1251(c)(1) shall not exceed:
    (i) In the case of farm recapture property other than land, the 
excess of the amount realized over adjusted basis, and
    (ii) In the case of land, the lower of the amount in subdivision (i) 
of this subparagraph or the potential gain (as defined in paragraph 
(b)(2)(ii) of Sec.  1.1251-1.
    (3) Treatment of land in hand of transferee. See paragraph (g) of 
this section for treatment of transferee in the case of a disposition of 
land to which this paragraph applies.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A, a calendar year taxpayer, makes one disposition of 
farm recapture property during 1976. On March 2, 1976, A makes a gift to 
B (also a calendar year taxpayer) of a parcel of land which he had on 
January 15, 1971. On the date of such disposition, the excess of the 
fair market value ($65,000) over the adjusted basis of the land 
($40,000) is $25,000 and the sum of the deductions allowable in respect 
of such land under sections 175 and 182 is $21,000 for 1971 and $3,000 
(attributable to 1975) for the taxable year of disposition and the four 
immediately preceding taxable years. Thus, the potential gain (as 
defined in paragraph (b)(2)(ii) of Sec.  1.1251-1) is limited to $3,000. 
At the end of 1976 (after making the applicable additions and 
subtractions under section 1251(b) (2) and (3)(A)), there is a balance 
in A's excess deductions account of $25,000. However, upon making the 
gift, A recognizes no gain under section 1251(c)(1) or section 
1252(a)(1). See subparagraph (a)(1) of this paragraph and paragraph 
(a)(1) of Sec.  1.1252-2. For treatment of the land in the hands of B, 
see example (1) of paragraph (g)(3) of this section. For effect of the 
gift on the excess deductions accounts of A and B, see paragraph (e)(2) 
of Sec.  1.1251-2.
    Example 2. Assume the same facts as in example (1), except that A 
transfers the land to B for $50,000. Thus, the gain realized is $10,000 
(amount realized, $50,000, minus adjusted basis $40,000), and A has made 
a gift of $15,000 (fair market value, $65,000, minus amount realized, 
$50,000). Since under subparagraph (2)(ii) of this paragraph, the 
potential gain ($3,000) is lower than the gain realized ($10,000), the 
gain to which section 1251(c)(1) could apply is limited by subparagraph 
(2)(ii) of this paragraph to $3,000. Thus, as A has $25,000 in his 
excess deductions account, $3,000 is recognized as ordinary income under 
section 1251(c)(1). See example (2) of paragraph (a)(4) of Sec.  1.1252-
2 for computation of gain of $7,000 which is recognized as ordinary 
income by A under section 1252(a)(1). For treatment of the land in the 
hands of B, see example (2) of paragraph (g)(3) of this section.

    (b) Exception for transfers at death--(1) General rule. Section 
1251(d)(2) provides that, except as provided in section 691 (relating to 
income in respect of a decedent), no gain shall be recognized under 
section 1251(c)(1) upon a transfer at death. For purposes of this 
paragraph, the term transfer at death shall have the same meaning as in 
paragraph (b) of Sec.  1.1245-4 and, with respect to the application of 
this paragraph, principles illustrated by the examples of paragraph 
(b)(2) of Sec.  1.1245-4 shall apply.
    (2) Treatment of land in hands of transferee. If as of the date a 
person acquires land which is farm recapture property from a decedent 
such person's basis is determined, by reason of the application of 
section 1014(a), solely by reference to the fair market value of the 
property on the date of the decedent's death or on the applicable date 
provided in section 2032 (relating to alternate valuation date), then on 
such date the potential gain in respect to such land is zero.
    (c) Certain corporate transactions--(1) Limitation on amount of 
gain. Under section 1251(d)(3), upon a transfer of property described in 
subparagraph (2) of this paragraph, the amount of gain recognized as 
ordinary income by the transferor under section 1251(c)(1) shall not 
exceed an amount equal to the excess (if any) of (i) the amount of gain 
recognized to the transferor on the transfer (determined without regard 
to section 1251) over (ii) the amount (if any) of gain recognized as 
ordinary income under section 1245(a)(1). For purposes of this 
subparagraph, the principles of paragraph (c)(1) of Sec.  1.1245-4 shall 
apply. Thus, in case of a transfer of both farm recapture property and 
property other than farm recapture property in a single transaction, the 
amount realized from the disposition of

[[Page 551]]

the farm recapture property (as determined in a manner consistent with 
the principles of paragraph (a)(5) of Sec.  1.1245-1) shall be deemed to 
consist of that portion of the fair market value of each property 
acquired which bears the same ratio to the fair market value of such 
acquired property as the amount realized from the disposition of farm 
recapture property bears to the total amount realized. The preceding 
sentence shall be applied solely for purposes of computing the portion 
of the total gain (determined without regard to section 1251) which is 
eligible to be recognized as ordinary income under section 1251(c)(1). 
Section 1251(d)(3) does not apply to a disposition of property to an 
organization (other than a cooperative described in section 521) which 
is exempt from the tax imposed by chapter 1 of the Code.
    (2) Transfers covered. The transfers referred to in subparagraphs 
(1) of this paragraph are transfers of farm recapture property in which 
the basis of such property in the hands of the transferee is determined 
by reference to its basis in the hands of the transferor by reason of 
the application of any of the following provisions:
    (i) Section 332 (relating to distributions in complete liquidation 
of an 80-percent-or-more controlled subsidiary corporation). For the 
application of section 1251(d)(3) to such a complete liquidation, the 
principles of paragraph (c)(3) of Sec.  1.1245-4 shall apply. Thus, for 
example, the provisions of subparagraph (1) of this paragraph do not 
apply to a liquidating distribution of farm recapture property by an 80-
percent-or-more controlled subsidiary to its parent if the parent's 
basis for the property is determined, under section 334(b)(2), by 
reference to its basis for the stock of the subsidiary.
    (ii) Section 351 (relating to transfer to corporation controlled by 
transferor).
    (iii) Section 351 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 371(a) (relating to exchanges pursuant to certain 
receivership and bankruptcy proceedings).
    (v) Section 374(a) (relating to exchanges pursuant to certain 
railroad reorganizations).
    (3) Partnerships. For the application of section 1251 to 
partnerships, see paragraph (e) of this section.
    (4) Treatment of land in hands of transferee. See paragraph (g) of 
this section for treatment of transferee in the case of a disposition of 
land to which this paragraph applies.
    (5) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) A, an individual calendar year taxpayer, makes one 
disposition of farm recapture property during 1971. On January 20, 1971. 
A transfers farm recapture property (other than land and section 1245 
property), having an adjusted basis of $22,000, to corporation M in 
exchange for stock in M worth $35,000 plus $15,000 in cash in a 
transaction qualifying under section 351. Thus, the amount realized is 
$50,000, and the gain realized is the excess of the amount realized, 
$50,000, over the adjusted basis, $22,000, or $28,000. Without regard to 
section 1251, A would recognize gain of $15,000 under section 351(b), 
and M's basis for the farm recapture property would be determined under 
section 362(a) by reference to its basis in the hands of A. Assume 
further that the balance in A's excess deductions account (after making 
the applicable additions and subtractions under section 1251(b) (2) and 
(3)(A)) at the close of 1971 is $20,000. Thus, since such balance in the 
excess deductions account ($20,000) is lower than the gain realized 
($28,000), is subparagraph (1) of this paragraph did not apply, gain of 
$20,000 would be recognized as ordinary income under section 1251(c)(1). 
However, subparagraph (1) of this paragraph limits the amount of gain to 
be recognized as ordinary income under section 1251(c)(1) to $15,000.
    (ii) If, however, A transferred the farm recapture property to M 
solely in exchange for stock worth $50,000, then, because of the 
application of subparagraph (1) of this paragraph he would not recognize 
any gain under section 1251(c)(1). If, instead, A transferred the farm 
recapture property to M in exchange for stock worth $25,000 and $25,000 
cash, only $20,000 (the amount of such balance in the excess deductions 
account) of the gain of $25,000 recognized under section 351(b) would be 
recognized as ordinary income under section 1251(c)(1). The remaining 
$5,000 of gain recognized under section 351(b) may be treated as gain 
from the sale or exchange of property described in section 1231. In the 
hands of M, the property received from A is farm recapture property 
under the provisions of paragraph (a)(11)(ii) of Sec.  1.1251-3. For 
treatment of the property received by A in such transaction; see section 
1251(d)(6) and paragraph (f) of this section.

[[Page 552]]

    Example 2. Assume the same facts as in subdivision (i) of example 
(1), except that the farm recapture property is section 1245 property. 
Assume further than $5,000 is recognized as ordinary income under 
section 1245(a)(1), and that as of the close of 1971, A has a balance of 
$15,000 in his excess deductions account (after making the applicable 
additions and subtractions under section 1251(b) (2) and (3)(A) which, 
under paragraph (b) of Sec.  1.1251-3, is computed by treating the 
$5,000 of gain to which section 1245 applies as gross income derived 
from the trade or business of farming). The amount of gain recognized as 
ordinary income under section 1251(c)(1) is $10,000, computed as 
follows:

(1) Amount of gain under section 1251(c)(1) (determined
 without regard to subparagraph (1) of this paragraph):......
    (a) Portion of gain realized ($28,000) in excess of          $23,000
     amount recognized as ordinary income under section
     1245(a)(1) ($5,000).....................................
    (b) Excess deductions account balance....................     15,000
    (c) Lower of (a) or (b)..................................     15,000
                                                              ==========
(2) Limitation in subparagraph (1) of this paragraph:
    (a) Gain recognized (determined without regard to section     15,000
     1251)...................................................
    (b) Minus: Gain recognized as ordinary income under            5,000
     section 1245(a)(1)......................................
                                                              ----------
    (c) Difference...........................................     10,000
                                                              ==========
    (3) Lower of line (1)(c) or line (2)(c)..................     10,000
                                                              ==========
 

    (d) Limitation for like kind exchanges and involuntary conversions--
(1) General rule. Under section 1251(d)(4), if farm recapture property 
is disposed of and gain (determined without regard to section 1251) is 
not recognized in whole or in part under section 1031 (relating to like 
kind exchanges) or section 1033 (relating to involuntary conversions), 
then the amount of gain recognized as ordinary income by the transferor 
under section 1251(c)(1) shall not exceed an amount equal to the excess 
(if any) of (i) the amount of gain recognized on such disposition 
(determined without regard to section 1251) or (ii) the amount (if any) 
of gain recognized as ordinary income under section 1245(a)(1).
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. (i) A, an individual calendar year taxpayer, owns a herd 
of breeding cattle having an adjusted basis of $75,000 which he acquired 
on March 30, 1970, A receives insurance proceeds of $90,000. Thus, the 
gain realized is $15,000 (that is, the excess of the amount realized, 
$75,000), A makes no other disposition of farm recapture property during 
1970. Assume that had the herd been sold at its fair market value on 
March 15, 1970, no gain would have been recognized as ordinary income 
under section 1245(a)(1). As of the close of 1970, A has a balance of 
$12,000 in his excess deductions account (after making the applicable 
additions and subtractions under section 1251(b) (2) and (3)(A)). Thus, 
since the balance in the excess deductions account, $12,000, is lower 
than the gain realized, $15,000, the amount of gain which would be 
recognized under section 1251(c)(1) (determined without regard to 
subparagraph (1) of this paragraph) would be $12,000.
    (ii) Assume further that A spends $72,000 of the insurance proceeds 
to purchase another breeding herd, $10,000 to purchase stock in the 
acquisition of control of a corporation which owns property similar or 
related in service or use to the destroyed breeding herd, and retains 
cash of $8,000. Both of the acquisitions by A qualify under section 
1033(a)(3)(A), and A properly elects under section 1033(a)(3)(A) and the 
regulations thereunder to limit recognition of gain to $8,000 (that is, 
the amount by which the amount realized from the conversion, $90,000 
exceeds the cost of the stock and other property acquired to replace the 
converted property, $72,000 plus $10,000). Thus, since $8,000 is the 
amount of gain which would be recognized under section 1033(a)(3) 
(determined without regard to section 1251), and since that amount is 
lower than the gain of $12,000 which would be recognized under section 
1251(c)(1) (determined without regard to subparagraph (1) of this 
paragraph), under subparagraph (1) of this paragraph the amount of gain 
recognized under section 1251(c)(1) is limited to $8,000. The stock 
purchased for $10,000 qualifies under paragraph (a)(1)(ii)(b) of Sec.  
1.1251-3 as farm recapture property.
    Example 2. (i) A, an individual calendar year taxpayer, owns land 
which he had acquired on March 7, 1970, having an adjusted basis of 
$48,000, and a fair market value of $67,500. On January 15, 1975, A, as 
a result of a condemnation action, receives $67,500 (its fair market 
value) for the land. The aggregate of the deductions allowable in 
respect of such land under sections 175 and 182 is $18,000, with $5,000 
of such aggregate attributable to 1970 and $13,000 of such aggregate 
attributable to 1970 and $13,000 of such aggregate attributable to 1975 
and the four preceding taxable years. Thus, the potential gain (as 
defined in paragraph (b)(2)(ii) of Sec.  1.1251-1) is limited to 
$13,000, since that amount is lower than $19,500 (the excess of the fair 
market value of the land, $67,500, over its adjusted basis, $48,000). 
The gain realized by A is also $19,500. At the end of A's taxable year 
(after making the applicable additions and subtractions under section 
1251(b) (2) and (3)(A)) there is a balance of

[[Page 553]]

$21,000 in the excess deductions account of A. Since the potential gain, 
$13,000, is lower than both the excess deductions account balance, 
$21,000, and the gain realized, $19,500, A would recognize $13,000 as 
ordinary income under section 1251(c)(1) (determined without regard to 
subparagraph (1) of this paragraph).
    (ii) Assume further that A spends the entire amount received, 
$67,500, to purchase stock in the acquisition of control of a 
corporation which owns property similar or related in service or use to 
A's condemned land which qualifies under section 1033(a)(3)(A), and A 
properly elects under section 1033(a)(3)(A) and the regulations 
thereunder to limit recognition of gain to zero (that is, the amount by 
which the amount realized from the conversion, $67,500, exceeds the cost 
of the stock acquired to replace the converted land, $67,500). Thus, 
since no gain would be recognized under section 1033(a)(3) (determined 
without regard to section 1251), under subparagraph (1) of this 
paragraph, no gain is recognized under section 1251(c)(1). The stock 
purchased for $67,500 qualifies under paragraph (a)(1)(ii)(b) of Sec.  
1.1251-3 as farm recapture property. See example (1) of paragraph (d)(2) 
of Sec.  1.1252-2 for a computation of gain recognized as ordinary 
income under section 1252(a)(1).
    Example 3. B, an individual calendar year taxpayer, owns a herd of 
breeding cattle having an adjusted basis of $25,000 which he acquired on 
March 30, 1970. On March 15, 1976, the entire herd is destroyed by a 
blizzard and on March 20, 1976, B receives insurance proceeds of 
$90,000. Thus, the gain realized is $65,000 (that is, the excess of the 
amount realized, $90,000, over the adjusted basis, $25,000). B makes no 
other disposition of farm recapture property during 1976. B spends 
$60,000 of the insurance proceeds to purchase another breeding herd and 
retains cash of $30,000. The acquisition by B qualifies under section 
1033(a)(3)(A), and B properly elects under section 1033(a)(3)(A) and the 
regulations thereunder to limit recognition of gain to $30,000 (that is, 
the amount by which the amount realized from the conversion, $90,000, 
exceeds the cost of the property acquired to replace the converted 
property, $60,000). Assume that the amount of gain recognized under 
section 1245(a)(1) is $20,000, and that as of the close of 1976 B has a 
balance of $100,000 in his excess deductions account (after making the 
applicable additions and subtractions under section 1251(b) (2) and 
(3)(A) which, under paragraph (b) of Sec.  1.1251-3, is computed by 
treating the $20,000 of gain to which section 1245 applies as gross 
income derived from the trade or business of farming). The amount of 
gain recognized as ordinary income under section 1251(c)(1) is $10,000, 
computed as follows:

(1) Amount of gain under section 1251(c)(1) (determined
 without regard to subparagraph (1) of this paragraph):
    (a) Portion of gain realized ($65,000) in excess of          $45,000
     amount recognized as ordinary income under section
     1245(a)(1) ($20,000)....................................
    (b) Excess deductions account balance....................    100,000
    (c) Lower of (a) or (b)..................................     45,000
                                                              ==========
(2) Limitation in subparagraph (1) of this paragraph:
    (a) Gain recognized (determined without regard to section     30,000
     1251)...................................................
    (b) Minus: Gain recognized as ordinary income under          $20,000
     section 1245(a)(1)......................................
                                                              ----------
    (c) Difference...........................................     10,000
                                                              ==========
(3) Lower of line (1)(c) or line (2)(c)......................     10,000
                                                              ==========
 

    (3) Application to single disposition of farm recapture property of 
one class and property of different class. (i) If upon a sale of farm 
recapture property of one class gain would be recognized under section 
1251(c)(1), and if such farm recapture property together with property 
of a different class or classes is disposed of in a single transaction 
in which gain is not recognized in whole or in part under section 1031 
(without regard to section 1251(c)(1), then rules consistent with the 
principles of paragraph (d)(6) of Sec.  1.1250-3 (relating to gain from 
disposition of certain depreciable realty) shall apply for purposes of 
allocating the amount realized to each of the classes of property 
disposed of and for purposes of determining what property the amount 
realized for each class consists of.
    (ii) For purposes of this subparagraph, the classes of property 
other than farm recapture property are (a) section 1245 property, (b) 
section 1250 property, and (c) other property.
    (iii) For purposes of this subparagraph, the classes of farm 
recapture property are (a) hand, (b) farm recapture property other than 
land which is section 1245 property and (c) farm recapture property 
other than land which is not section 1245 property.
    (4) Treatment of land received in like kind exchange or involuntary 
conversion. The aggregate of the deductions allowed under sections 175 
and 182 in respect of land acquired in a transaction described in 
subparagraph (1) of this paragraph shall include the aggregate of the 
deductions allowable under sections 175 and 182 in respect of the land

[[Page 554]]

transferred or converted (as the case may be) in such transaction minus 
the amount of gain taken into account under sections 1251(c) and 1252(a) 
with respect to the land transferred or converted. Upon a subsequent 
disposition of such land, such deductions shall be treated as having 
been allowable in the same taxable year as they were allowable with 
respect to the land transferred or converted.
    (e) Partnerships. [Reserved]
    (f) Property transferred to controlled corporation. [Reserved]
    (g) Treatment of land received by a transferee in a disposition by 
gift and certain tax-free transactions--(1) General rule. If farm 
recapture property which is land is disposed of in a transaction which 
is either a gift to which paragraph (a)(1) of this section applies or a 
completely tax-free transfer to which section 1251(b)(5)(A) applies, 
then for purposes of section 1251:
    (i) The aggregate of the deductions allowable under sections 175 and 
182 in respect of the land in the hands of the transferee immediately 
after the disposition shall be an amount equal to the aggregate of such 
deductions for the taxable year and the four preceding taxable years in 
the hands of the transferor immediately before the disposition,
    (ii) Upon a subsequent disposition by the transferee (including a 
computation of potential gain as defined in paragraph (b)(2)(ii) of 
Sec.  1.1251-1), such deductions in the hands of the transferee shall be 
treated as having been allowable with respect to the transferee in the 
same taxable year they were allowable to the transferor, and
    (iii) If the taxable years of the transferor and transferee 
regularly end on different dates, then the aggregate of such deductions 
allowable for taxable year with respect to the transferor shall be 
treated in the hands of the transferee as allowable in the transferee's 
taxable year in which the taxable year of the transferor regularly ends.
    (2) Certain partially tax-free transfers. If farm recapture property 
which is land is disposed of in a transaction which either is in part a 
sale or exchange and in part a gift to which paragraph (a)(2) of this 
section applies, or is a partially tax-free transfer to which section 
1251(b)(5)(A) applies, then for purposes of section 1251:
    (i) The amount determined under subparagraph (1)(i) of this 
paragraph shall be reduced by the amount of gain taken into account 
under sections 1251(c) and 1252(a) to the extent such gain is 
attributable to the sections 175 and 182 deductions for the taxable year 
and the preceding four taxable years (determined by attributing gain 
under section 1252(a) to the oldest years first) by the transferor upon 
the disposition, and
    (ii) For purposes of subparagraph (1)(ii) of this paragraph, the 
amount of such gain recognized under sections 1251(c) and 1252(a) shall 
reduce the aggregate of deductions allowable under sections 175 and 182 
for the taxable year and each of the preceding four taxable years on a 
pro rata basis.
    (3) Examples. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. Assume the same facts as in example (1) of paragraph 
(a)(4) of this section. Therefore, on the date B receives the land in 
the gift transaction, under subparagraph (1) (i) and (ii) of this 
paragraph, the aggregate of the deductions allowable under sections 175 
and 182 in respect of the land in the hands of B is the amount in the 
hands of A, $24,000, and for purposes of applying section 1251 upon a 
subsequent disposition by B (including the computation of potential 
gain) such deductions in the hands of B shall be treated as allowable in 
the same year as they were allowable to A. Thus, in respect to the land 
in the hands of B, the allowable section 175 and 182 deductions of 
$3,000 shall be treated as allowable in 1975.
    Example 2. Assume the same facts as in example (2) of Paragraph 
(a)(4) of this section. Under paragraph (2) of this paragraph, the 
aggregate of the allowable sections 175 and 182 deductions with respect 
to the land which pass over to B for purposes of section 1251 is zero 
($3,000 deduction allowable under sections 175 and 182 for the taxable 
year and the four preceding taxable years minus $3,000 gain taken into 
account by A in accordance with example (2) of paragraph (a)(4) of this 
section).

[T.D. 7818, 41 FR 18828, May 7, 1976; 41 FR 23669, June 11, 1976]

[[Page 555]]



Sec.  1.1252-1  General rule for treatment of gain from disposition 
of farm land.

    (a) Ordinary income--(1) General rule. (i) Except as otherwise 
provided in this section and Sec.  1.1252-2, if farm land is disposed of 
during a taxable year beginning after December 31, 1969, then under 
section 1252(a)(1) there shall be treated as gain from the sale or 
exchange of property which is neither a capital asset nor property 
described in section 1231 (that is, shall be recognized as ordinary 
income) the lower of:
    (a) The applicable percentage of the amount computed in subdivision 
(ii) of this subparagraph, or
    (b) The amount computed in subdivision (iii) of this subparagraph.
    (ii) The amount computed in this subdivision is an amount equal to:
    (a) The aggregate of the deductions allowed, in any taxable year any 
day of which falls within the period the taxpayer held (or is considered 
to have held) the farm land, under sections 175 (relating to soil and 
water conservation expenditures) and 182 (relating to expenditures by 
farmers for clearing land) for expenditures paid or incurred after 
December 31, 1969, with respect to the farm land disposed of, minus
    (b) The amount of gain recognized as ordinary income under section 
1251(c)(1) (relating to gain from disposition of property used in 
farming where farm losses offset nonfarm income) upon such disposition 
of such land.
    (iii) The amount computed in this subdivision is an amount equal to:
    (a) The gain realized, that is, the excess of the amount realized 
(in the case of a sale, exchange, or involuntary conversion) or the fair 
market value of the farm land (in the case of any other disposition), 
over the adjusted basis of the farm land, minus
    (b) The amount of gain recognized as ordinary income under section 
1251(c)(1) upon such disposition of such land.
    (iv) If a deduction under section 175 is allowed in respect of the 
farm land disposed of for a taxable year every day of which falls within 
the period after the taxpayer held (or is considered to have held) the 
farm land, and if the deduction is attributable to expenditures paid or 
incurred after December 31, 1969, with respect to such land during the 
period the taxpayer held (or is considered to have held) the land, then 
the amount of such deduction shall be applied to increase the amount 
computed (without regard to this subdivision) under subdivision (ii)(a) 
of this subparagraph.
    (2) Application of section. Any gain treated as ordinary income 
under section 1252(a)(1) shall be recognized as ordinary income 
notwithstanding any other provision of subtitle A of the Code. For 
special rules with respect to the application of section 1252, see Sec.  
1.1252-2. For the relation of section 1252 to other provisions see 
paragraph (d) of this section.
    (3) Meaning of terms. For purposes of section 1252:
    (i) The term farm land means any land with respect to which 
deductions have been allowed under section 175 or 182. See section 
1252(a)(2).
    (ii) The period for which farm land shall be considered to be held 
shall be determined under section 1223.
    (iii) The term disposition shall have the same meaning as in 
paragraph (a)(3) of Sec.  1.1245-1.
    (iv) The applicable percentage shall be determined as follows:

If the farm land is disposed of--           The applicable
                                            percentage is--
Within 5 years after the date it was         100 percent.
 acquired
Within the sixth year after it was           80 percent.
 acquired
Within the seventh year after it was         60 percent.
 acquired
Within the eighth year after it was          40 percent.
 acquired.
Within the ninth year after it was           20 percent.
 acquired.
Within the 10th year after it was acquired   0 percent.
 and thereafter.
 

    (4) Portion of parcel. The amount of gain to be recognized as 
ordinary income under section 1252(a)(1) shall be determined separately 
for each parcel of farm land in a manner consistent with the principles 
of subparagraphs (4) and (5) of Sec.  1.1245-1(a) (relating to gain from 
disposition of certain depreciable property). If (i) only a portion of a 
parcel of farm land is disposed of in a transaction, or if two or more 
portions of a single parcel are disposed of in one transaction, and (ii) 
the aggregate of the deductions allowed under sections 175 and 182 with 
respect to any such portion cannot be established to the satisfaction of 
the Commissioner or his delegate, then the aggregate of the deductions 
in respect of the entire parcel

[[Page 556]]

shall be allocated to each portion in proportion to the fair market 
value of each at the time of the disposition.
    (b) Instances of non-application--(1) In general. Section 1252 does 
not apply if a taxpayer disposes of farm land for which the holding 
period is in excess of 9 years or with respect to which no deductions 
have been allowed under sections 175 and 182.
    (2) Losses. Section 1252(a)(1) does not apply to losses. Thus, 
section 1252(a)(1) does not apply if a loss is realized upon a sale, 
exchange, or involuntary conversion of property, all of which is farm 
land, nor does the section apply to a disposition of such property other 
than by way of sale, exchange, or involuntary conversion if at the time 
of the disposition the fair market value of such property is not greater 
than its adjusted basis.
    (c) Treatment of partnerships and partners. [Reserved]
    (d) Relation of section 1252 to other provisions--(1) General. The 
provisions of section 1252 apply notwithstanding any other provisions of 
subtitle A of the Code. Thus, unless an exception or limitation under 
Sec.  1.1252-2 applies, gain under section 1252(a)(1) is recognized 
notwithstanding any contrary nonrecognition provision or income 
characterizing provision. For example, since section 1252 overrides 
section 1231 (relating to property used in the trade or business), the 
gain recognized under section 1252(a)(1) upon a disposition of farm land 
will be treated as ordinary income and only the remaining gain, if any, 
from the disposition may be considered as gain from the sale or exchange 
of a capital asset if section 1231 is applicable. See example (1) of 
paragraph (e) of this section.
    (2) Nonrecognition sections overridden. The nonrecognition of gain 
provisions of subtitle A of the Code which section 1252 overrides 
include, but are not limited to, sections 267(d), 311(a), 336, 337, and 
512(b)(5). See Sec.  1.1252-2 for the extent to which section 1252(a)(1) 
overrides sections 332, 351, 361, 371(a), 374(a), 721, 731, 1031, and 
1033.
    (3) Installment method. Gain from a disposition to which section 
1252(a)(1) applies may be reported under the installment method if such 
method is otherwise available under section 453 of the Code. In such 
case, the income (other than interest) on each installment payment shall 
(i) first be deemed to consist of gain to which section 1251(c)(1) 
applies (if applicable) until all such gain has been reported, (ii) the 
next portion (if any) of such income shall be deemed to consist of gain 
to which section 1252(a)(1) applies until all such gain has been 
reported, and (iii) finally the remaining portion (if any) of such 
income shall be deemed to consist of gain to which neither section 
1251(c)(1) nor 1252(a)(1) applies. For treatment of amounts as interest 
on certain deferred payments, see section 483.
    (4) Exempt income. With regard to exempt income, the principles of 
paragraph (e) of Sec.  1.1245-6 shall be applicable.
    (5) Treatment of gain not recognized under section 1252(a)(1). For 
treatment of gain not recognized under this section, the principles of 
paragraph (f) of Sec.  1.1245-6 shall be applicable.
    (e) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. Individual A uses the calendar year as his taxable year. 
On April 10, 1975, he sells for $75,000 a parcel of farm land which he 
had acquired on January 5, 1970, with an adjusted basis of $52,500 for a 
realized gain of $22,500. The aggregate of the deductions allowed under 
sections 175 and 182 with respect to such land is $18,000 and all of 
such amount was allowed for 1970. Under the stated facts, none of the 
$22,500 gain realized is recognized as ordinary income under section 
1251(c)(1) as there is no potential gain (as defined in section 
1251(e)(5)) with respect to the farm land. Since no gain is recognized 
as ordinary income under section 1251(c)(1), and since the applicable 
percentage, 80 percent, of the aggregate of the deductions allowed under 
sections 175 and 182, $18,000, or $14,400, is lower than the gain 
realized, $22,500, the amount of gain recognized as ordinary income 
under section 1252(a)(1) is $14,400. The remaining $8,100 of the gain 
may be treated as gain from the sale or exchange of property described 
in section 1231.
    Example 2. Assume the same facts as in example (2) of paragraph 
(b)(6) of Sec.  1.1251-1. Assume further that the aggregate of the 
amount of sections 175 and 182 deductions allowable to the M corporation 
is equal to the amount allowed. Under paragraph (a)(1) of the section, 
$5,000 is recognized as ordinary

[[Page 557]]

income under section 1252(a)(1) upon the disposition of the land as a 
dividend, computed as follows:

(1) Aggregate of deductions allowed under sections 175 and       $18,000
 182.........................................................
(2) Minus: Gain recognized as ordinary income under section      $13,000
 1251(c)(1)..................................................
                                                              ----------
(3) Difference...............................................     $5,000
(4) Multiply: Applicable percentage for property disposed of        100%
 within the fifth year after it was acquired.................
                                                              ----------
(5) Amount in paragraph (a)(1)(i)(a) of this section.........     $5,000
                                                              ----------
(6) Gain realized (fair market value $67,500, less adjusted      $22,500
 basis, $45,000).............................................
(7) Minus: Amount in line (2)................................    $13,000
                                                              ----------
(8) Amount in paragraph (a)(1)(i)(b) of this section.........     $9,500
                                                              ==========
(9) Lower of line (5) or line (8)............................     $5,000
                                                              ==========
 


The gain realized, $22,500, minus the sum of the gain recognized as 
ordinary income under section 1251(c)(1), $13,000, and under section 
1252(a)(1), $5,000, equals $4,500. Assuming section 311(d) (relating to 
certain distributions of appreciated property to redeem stock) does not 
apply, under section 311(a) the corporation does not recognize gain on 
account of the $4,500.
    Example 3. Assume the same facts as in example (2) of this 
paragraph, except that M contracted to sell the land for $67,500 which 
would be paid in 10 equal payments of $6,750 each, plus a sufficient 
amount of interest so that section 483 does not apply. Assume further 
that the remaining gain of $4,500 is treated as gain from the sale or 
exchange of property described in section 1231. M properly elects under 
section 453 to report under the installment method gain of $13,000 to 
which section 1251(c)(1) applies, gain of $5,000 to which section 
1252(a)(1) applies, and gain of $4,500 to which section 1231 applies. 
Since the total gain realized on the sale was $22,500, the gross profit 
realized on each installment payment is $2,250, i.e., $6,750 x 
($67,500). Accordingly, the treatment of the income to be reported on 
each installment payment is as follows:

------------------------------------------------------------------------
                                               Applicable sections
              Payment No.               --------------------------------
                                            1251       1252       1231
------------------------------------------------------------------------
1......................................     $2,250  .........  .........
2......................................      2,250  .........  .........
3......................................      2,250  .........  .........
4......................................      2,250  .........  .........
5......................................      2,250  .........  .........
6......................................      1,750       $500  .........
7......................................  .........      2,250  .........
8......................................  .........      2,250  .........
9......................................  .........  .........     $2,250
10.....................................  .........  .........      2,250
                                        --------------------------------
  Totals...............................     13,000      5,000      4,500
------------------------------------------------------------------------


[T.D. 7418, 41 FR 18831, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec.  1.1252-2  Special rules.

    (a) Exception for gifts--(1) General rule. In general, no gain shall 
be recognized under section 1252(a)(1) upon a disposition of farm land 
by gift. For purposes of section 1252 and this paragraph, the term gift 
shall have the same meaning as in paragraph (a) of Sec.  1.1245-4 and, 
with respect to the application of this paragraph, principles 
illustrated by the examples of paragraph (a)(2) of Sec.  1.1245-4 shall 
apply. For reduction in amount of charitable contribution in case of a 
gift of farm land, see section 170(e) and Sec.  1.170A-4.
    (2) Disposition in part a sale or exchange and in part a gift. Where 
a disposition of farm land is in part a sale or exchange and in part a 
gift, the amount of gain which shall be recognized as ordinary income 
under section 1252(a)(1) shall be computed under paragraph (a)(1) of 
Sec.  1.1252-1, applied by treating the gain realized (for purposes of 
paragraph (a)(1)(iii)(a) of Sec.  1.1252-1) as the excess of the amount 
realized over the adjusted basis of the farm land.
    (3) Treatment of farm land in hands of transferee. See paragraph (f) 
of this section for treatment of the transferee in the case of a 
disposition to which this paragraph applies.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On March 2, 1976, A, a calendar year taxpayer, makes a 
gift to B of a parcel of land having an adjusted basis of $40,000, a 
fair market value of $65,000, and a holding period of 6 years (A, having 
purchased the land on January 15, 1971). On the date of such gift, the 
aggregate of the deductions allowed to A under sections 175 and 182 with 
respect to the land is $24,000 with $21,000 of such amount attributable 
to 1971. Upon making the gift, A recognizes no gain under section 
1251(c)(1) or section 1252(a)(1). See paragraph (a)(1) of Sec.  1.1251-4 
and subparagraph 1 of this paragraph. For treatment of the farm land in 
the hands of B, see example (1) of paragraph (f)(3) of this section. For 
effect of the gift on the excess deductions accounts of A and of B, see 
paragraph (e)(2) of Sec.  1.1251-2.
    Example 2. (i) Assume the same facts as in example (1), except that 
A transfers the land to B for $50,000. Thus, the gain realized is

[[Page 558]]

$10,000 (amount realized, $50,000, minus adjusted basis, $40,000), and A 
has made a gift of $15,000 (fair market value, $65,000, minus amount 
realized, $50,000).
    (ii) Upon the transfer of the land to B, A recognizes $3,000 of gain 
under section 1251(c)(1). See example (2) of paragraph (a)(4) of Sec.  
1.1251-4. Thus, A recognizes $7,000 as ordinary income under section 
1252(a)(1), computed under subparagraph (2) of this paragraph as 
follows:

(1) Aggregate of deductions allowed under sections 175 and       $24,000
 182.........................................................
(2) Minus: Gain recognized as ordinary income under section       $3,000
 1251(c)(1)..................................................
                                                              ----------
(3) Difference...............................................    $21,000
(4) Multiply: Applicable percentage for land disposed of             80%
 within sixth year after it was acquired.....................
                                                              ----------
(5) Amount in paragraph (a)(1)(i)(a) of Sec.   1.1252-1......    $16,800
                                                              ==========
(6) Gain realized (see subdivision (i) of this example)......    $10,000
(7) Minus: Amount in line (2)................................     $3,000
                                                              ----------
(8) Amount in paragraph (a)(1)(i)(b) of Sec.   1.1252-1,          $7,000
 applied in accordance with subparagraph (2) of this
 paragraph...................................................
                                                              ==========
(9) Lower of line (5) or line (8)............................     $7,000
                                                              ==========
 


Thus, the entire gain realized on the transfer, $10,000, is recognized 
as ordinary income since that amount is equal to the sum of the gain 
recognized as ordinary income under section 1251(c)(1), $3,000, and 
under section 1252(a)(1), $7,000. For treatment of the farm land in the 
hands of B, see example (2) of paragraph (f)(3) of this section.

    (b) Exception for transfers at death--(1) In general. Except as 
provided in section 691 (relating to income in respect of a decedent), 
no gain shall be recognized under section 1252(a)(1) upon a transfer at 
death. For purposes of section 1252 and this paragraph, the term 
transfer at death shall have the same meaning as in paragraph (b) of 
Sec.  1.1245-4 and, with respect to the application of this paragraph, 
principles illustrated by the examples of paragraph (b)(2) of Sec.  
1.1245-4 shall apply.
    (2) Treatment of farm land in hands of transferee. If as of the date 
a person acquires farm land from a decedent such person's basis is 
determined, by reason of the application of section 1014(a), solely by 
reference to the fair market value of the property on the date of the 
decedent's death or on the applicable date provided in section 2032 
(relating to alternative valuation date), then on such date the 
aggregate of the sections 175 and 182 deductions allowed with respect to 
the farm land in the hands of such transferee is zero.
    (c) Limitation for certain tax-free transactions--(1) Limitation on 
amount of gain. Upon a transfer of farm land described in subparagraph 
(2) of this paragraph, the amount of gain recognized as ordinary income 
under section 1252(a)(1) shall not exceed an amount equal to the excess 
(if any) of (i) the amount of gain recognized to the transferor on the 
transfer (determined without regard to section 1252) over (ii) the 
amount (if any) of gain recognized as ordinary income under section 
1251(c)(1). For purposes of this subparagraph, the principles of 
paragraph (c)(1) of Sec.  1.1245-4 shall apply. Thus, in the case of a 
transfer of farm land and property other than farm land in one 
transaction, the amount realized from the disposition of the farm land 
(as determined in a manner consistent with the principles of paragraph 
(a)(5) of Sec.  1.1245-1) shall be deemed to consist of that portion of 
the fair market value of each property acquired which bears the same 
ratio to the fair market value of such acquired property as the amount 
realized from the disposition of the farm land bears to the total amount 
realized. The preceding sentence shall be applied solely for purposes of 
computing the portion of the total gain (determined without regard to 
section 1252) which is eligible to be recognized as ordinary income 
under section 1252(a)(1). The provisions of this paragraph do not apply 
to a disposition of property to an organization (other than a 
cooperative described in section 521) which is exempt from the tax 
imposed by Chapter 1 of the Code.
    (2) Transfers covered. The transfers referred to in subparagraph (1) 
of this paragraph are transfers of farm land in which the basis of such 
property in the hands of the transferee is determined by reference to 
its basis in the hands of the transferor by reason of the application of 
any of the following provisions:
    (i) Section 332 (relating to distributions in complete liquidation 
of an 80-percent-or-more controlled subsidiary corporation). For 
application of subparagraph (1) of this paragraph to such a complete 
liquidation, the principles of paragraph (c)(3) of Sec.  1.1245-4 shall

[[Page 559]]

apply. Thus, for example, the provisions of subparagraph (1) of this 
paragraph do not apply to a liquidating distribution of farm land by an 
80-percent-or-more controlled subsidiary to its parent if the parent's 
basis for the property is determined, under section 334(b)(2), by 
reference to its basis for the stock of the subsidiary.
    (ii) Section 351 (relating to transfer to a corporation controlled 
by transferor).
    (iii) Section 361 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 371(a) (relating to exchanges pursuant to certain 
receivership and bankruptcy proceedings).
    (v) Section 374(a) (relating to exchanges pursuant to certain 
railroad reorganizations).
    (vi) Section 721 (relating to transfers to a partnership in exchange 
for a partnership interest). See paragraph (e) of this section.
    (vii) Section 731 (relating to distributions by a partnership to a 
partner). For special carryover of basis rule, see paragraph (e) of this 
section.
    (3) Treatment of farm land in the hands of tranferee. See paragraph 
(f) of this section for treatment of the transferee in the case of a 
disposition to which this paragraph applies.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On January 4, 1975, A, an individual calendar year 
taxpayer, owns a parcel of farm land, which he acquired on March 25, 
1970, having an adjusted basis of $15,000 and a fair market value of 
$40,000. On that date he transfers the parcel to corporation M in 
exchange for stock in the corporation worth $40,000 in a transaction 
qualifying under section 351. On the date of such transfer, the 
aggregate of the deductions allowed under sections 175 and 182 with 
respect to the land is $18,000. Without regard to section 1252, A would 
recognize no gain under section 351 upon the transfer and M's basis for 
the land would be determined under section 362(a) by reference to its 
basis in the hands of A. Thus, as a result of the disposition, no gain 
is recognized as ordinary income under section 1251(c)(1) or section 
1252(a)(1) by A since the amount of gain recognized under such sections 
is limited to the amount of gain which is recognized under section 351 
(determined without regard to sections 1251 and 1252). See paragraph 
(c)(1) of Sec.  1.1251-4 and subparagraph (1) of this paragraph. For 
treatment of the farm land in the hands of B, see paragraph (f)(1) of 
this section. For effect of the transfer on the excess deductions 
account of A and of B, see paragraph (e)(1) of Sec.  1.1251-2.
    Example 2. Assume the same facts in example (1), except that A 
transferred the land to M for stock in the corporation worth $32,000 and 
$8,000 cash. The gain realized is $25,000 (amount realized, $40,000, 
minus adjusted basis, $15,000). Without regard to section 1252, A would 
recognize $8,000 of gain under section 351(b). Assume further that no 
gain is recognized as ordinary income under section 1251(c)(1). 
Therefore, since the applicable percentage, 100 percent, of the 
aggregate of the deductions allowed under sections 175 and 182, $18,000, 
is lower than the gain realized, $25,000, the amount of gain to be 
recognized as ordinary income under section 1252(a)(1) would be $18,000 
if the provisions of subparagraph (1) of this paragraph do not apply. 
Since under section 351(b) gain in the amount of $8,000 would be 
recognized to the transferor without regard to section 1252, the 
limitation provided in subparagraph (1) of this paragraph limits the 
gain taken into account by A under section 1252(a)(1) to $8,000.
    Example 3. Assume the same facts as in example (2), except that 
$5,000 of gain is recognized as ordinary income under section 
1251(c)(1). The amount of gain recognized as ordinary income under 
section 1252(a)(1) is $3,000 computed as follows:

(1) Amount of gain under section 1252(a)(1) (determined
 without regard to subparagraph (1) of this paragraph):
    (a) Aggregate of deductions allowed under sections 175       $18,000
     and 182.................................................
    (b) Minus: Gain recognized as ordinary income under           $5,000
     section 1251(c)(1)......................................
                                                              ----------
    (c) Difference...........................................    $13,000
    (d) Multiply: Applicable percentage for property disposed       100%
     of within the fifth year after it was acquired..........
                                                              ----------
    (e) Amount in paragraph (a)(1)(i)(a) of Sec.   1.1252-1..    $13,000
    (f) Gain realized (amount realized $40,000, less adjusted    $25,000
     basis, $15,000).........................................
    (g) Minus: Amount in line (b)............................     $5,000
                                                              ----------
    (h) Amount in paragraph (a)(1)(i)(b) of Sec.   1.1252-1..    $20,000
                                                              ----------
    (i) Lower of line (e) or (h).............................    $13,000
                                                              ==========
(2) Limitation in subparagraph (1) of this paragraph:
    (a) Gain recognized (determined without regard to section     $8,000
     1252)...................................................
    (b) Minus: Gain recognized as ordinary income under           $5,000
     section 1251(c)(1)......................................
                                                              ----------
    (c) Difference...........................................     $3,000
                                                              ==========
(3) Lower of line (1)(i) or line (2)(c)......................     $3,000
                                                              ==========
 


Thus, the entire gain recognized under section 351(b) (determined 
without regard to sections 1251 and 1252), $8,000, is recognized as

[[Page 560]]

ordinary income since that amount is equal to the sum of the gain 
recognized as ordinary income under section 1251(c)(1), $5,000, and 
under section 1252(a)(1), $3,000.

    (d) Limitation for like kind exchanges and involuntary conversions--
(1) General rule. If farm land is disposed of and gain (determined 
without regard to section 1252) is not recognized in whole or in part 
under section 1031 (relating to like kind exchanges) or section 1033 
(relating to involuntary conversions), then the amount of gain 
recognized as ordinary income by the transferor under section 1252(a)(1) 
shall not exceed the sum of:
    (i) The excess (if any) of (a) the amount of gain recognized on such 
disposition (determined without regard to section 1252) over (b) the 
amount (if any) of gain recognized as ordinary income under section 
1251(c)(1), plus
    (ii) The fair market value of property acquired which is not farm 
land and which is not taken into account under subdivision (i) of this 
subparagraph (that is, the fair market value of property other than farm 
land acquired which is qualifying property under section 1031 or 1033, 
as the case may be).
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. (i) Assume the same facts as in example (2)(ii) of 
paragraph (d)(3) of Sec.  1.1251-4. Assume further that the aggregate of 
the amount of sections 175 and 182 deductions allowable is equal to the 
amount allowed. Under paragraph (a)(1) of Sec.  1.1252-1, $18,000 would 
be recognized as ordinary income under section 1252(a)(1) (determined 
without regard to subparagraph (1) of this paragraph), computed as 
follows:

(1) Aggregate of deductions allowed under sections 175 and       $18,000
 182.........................................................
(2) Minus: Gain recognized as ordinary income under section            0
 1251(c)(1)..................................................
                                                              ----------
(3) Difference...............................................    $18,000
(4) Multiply: Applicable percentage for property disposed of        100%
 within the fifth year after it was acquired.................
(5) Amount in paragraph (a)(1)(i)(a) of Sec.   1.1252-1......    $18,000
                                                              ==========
(6) Gain realized (amount realized, $67,500, less adjusted       $19,500
 basis, $48,000).............................................
(7) Minus: Amount in line (2)................................          0
                                                              ----------
(8) Amount in paragraph (a)(1)(i)(b) of Sec.   1.1252-1......    $19,500
                                                              ==========
(9) Lower of line (5) or line (8)............................    $18,000
                                                              ==========
 

    (ii) Although no gain was recognized under section 1251(c)(1) and 
the stock purchased by A for $67,500 is farm recapture property for 
purposes of section 1251, it is not farm land for purposes of section 
1252. Nevertheless, although no gain would be recognized under sections 
1033(a)(3) and 1251(c)(1) (determined without regard to section 1252), 
the limitation under subparagraph (1) of this paragraph is $67,500 (that 
is, the fair market value of property other than farm land acquired 
which is qualifying property under section 1033). Since the amount of 
gain which would be recognized as ordinary income under section 
1252(a)(1) (determined without regard to subparagraph (1) of this 
paragraph), $18,000 (as computed in subdivision (i) of this example), is 
lower than the amount of such limitation, $67,500, accordingly, only 
$18,000 is recognized as ordinary income under section 1252(a)(1). For 
determination of basis of the stock acquired, see subparagraph (5) of 
this paragraph.
    Example 2. (i) Assume the same facts as in example (1) of this 
subparagraph, except that the cost of the stock was $62,500 (its fair 
market value). Thus, the amount of gain recognized on the disposition 
under section 1033(a)(3) (determined without regard to sections 1251 and 
1252) is $5,000, that is, $67,500 minus $62,500. Assume further that 
$5,000 (the amount of gain recognized under section 1033(a)(3) (so 
determined)) was recognized as ordinary income under section 1251(c)(1). 
The amount of gain recognized as ordinary income under section 
1252(a)(1) is $13,000, computed as follows:

(1) Amount of gain under section 1252(a)(1) (determined
 without regard to subparagraph (1) of this paragraph):
    (a) Aggregate of deductions allowed under sections 175       $18,000
     and 182.................................................
    (b) Minus: Gain recognized as ordinary income under           $5,000
     section 1251(c)(1)......................................
                                                              ----------
    (c) Difference...........................................    $13,000
    (d) Multiply: Applicable percentage for property disposed       100%
     of within the fifth year after it was acquired..........
                                                              ----------
    (e) Amount in paragraph (a)(1)(i)(a) of Sec.   1.1252-1..    $13,000
                                                              ----------
    (f) Gain realized (amount realized, $67,500 (less            $19,500
     adjusted basis, $48,000))...............................
    (g) Minus: Amount in line (b)............................     $5,000
                                                              ----------
    (h) Amount in paragraph (a)(1)(i)(b) of Sec.   1.1252-1..    $14,500
                                                              ==========
    (i) Lower of line (e) or (h).............................    $13,000
                                                              ==========
(2) Limitation in subparagraph (1) of this paragraph:
    (a) Gain recognized (determined without regard to section     $5,000
     1252)...................................................
    (b) Minus: Gain recognized as ordinary income under           $5,000
     section 1251(c)(1)......................................
                                                              ----------
    (c) Difference...........................................          0

[[Page 561]]

 
    (d) Plus; The fair market value of property other than       $62,500
     farm land acquired which is qualifying property under
     section 1033............................................
                                                              ----------
    (e) Sum of lines (c) and (d).............................    $62,500
                                                              ==========
(3) Lower of line (1)(i) or line (2)(e)......................    $13,000
                                                              ==========
 

    (3) Application to single disposition of farm land and property of 
different class. (i) If upon a sale of farm land gain would be 
recognized under section 1252(a)(1), and if such land together with 
property of a different class or classes is disposed of in one 
transaction in which gain is not recognized in whole or in part under 
section 1031 or 1033 (without regard to section 1252(a)(1)), then rules 
consistent with the principles of paragraph (d)(6) of Sec.  1.1250-3 
(relating to gain from disposition of certain depreciable realty) shall 
apply for purposes of allocating the amount realized to each of the 
classes of property disposed of and for purposes of determining what 
property the amount realized for each class consists of.
    (ii) For purposes of this subparagraph, the classes of property 
other than farm recapture property (as defined in section 1251(e) and 
paragraph (a)(1) of Sec.  1.1251-3) are (a) section 1245 property, (b) 
section 1250 property, and (c) other property.
    (iii) For purposes of this subparagraph, the classes of farm 
recapture property are (a) land, (b) section 1245 property, and (c) 
other property.
    (4) Treatment of farm land received in like kind exchange or 
involuntary conversion. The aggregate of the deductions allowed under 
sections 175 and 182 in respect of land acquired in a transaction 
described in subparagraph (1) of this paragraph shall include the 
aggregate of the deductions allowed under sections 175 and 182 in 
respect of the land transferred or converted (as the cr sections 175 and 
182 in respect of land acquired in a transaction described in 
subparagraph (1) of this paragraph shall include the aggregate of the 
deductions allowed under sections 175 and 182 in respect of the land 
transferred or converted (as the case may be) in such transaction minus 
the amount of gain taken into account under sections 1251(c) and 1252(a) 
with respect to the land transferred or converted. Upon a subsequent 
disposition of such land, the holding period shall include the holding 
period with respect to the land transferred or converted.
    (5) Basis adjustment. In order to reflect gain recognized under 
section 1252(a)(1) if property is acquired in a transaction to which 
subparagraph (1) of this paragraph applies, its basis shall be 
determined under the rules of section 1031(d) or 1033(c).
    (e) Partnerships. [Reserved]
    (f) Treatment of farm land received by a transferee in a disposition 
by gift and certain tax-free transactions--(1) General rule. If farm 
land is disposed of in a transaction which is either a gift to which 
paragraph (a)(1) of this section applies, or a completely tax-free 
transfer to which paragraph (c)(1) of this section applies, then for 
purposes of section 1252:
    (i) The aggregate of the deductions allowed under sections 175 and 
182 in respect of the land in the hands of the tranferee immediately 
after the disposition shall be an amount equal to the amount of such 
aggregate in the hands of the transferor immediately before the 
disposition, and
    (ii) For purposes of applying section 1252 upon a subsequent 
disposition by the transferee (including a computation of the applicable 
percentage), the holding period of the transferee shall include the 
holding period of the transferor.
    (2) Certain partially tax-free transfers. If farm land is disposed 
of in a transaction which either is in part a sale or exchange and in 
part a gift to which paragraph (a)(2)of this section applies, or is a 
partially tax-free transfer to which paragraph (c)(1) of this section 
applies, then for purposes of section 1252 the amount determined under 
subparagraph (1)(i) of this paragraph shallbe reduced by the amount of 
gain taken into account under sections 1251(c) and 1252(a) by the 
transferor upon the disposition. Upon a subsequent disposition by the 
transferee, the holding period for purposes of computing the amount 
under section 1252(a)(1)(A), with respect to the 175 and 182 deductions 
taken by the transferor, shall include the holding period of the 
transferor. With respect to the 1975 and 182 deductions taken by the

[[Page 562]]

transferee, the holding period shall not include the holding period of 
the transferor.
    (3) Examples. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. Assume the same facts as in example (1) of paragraph 
(a)(4) of this section. Therefore, on the date B receives the farm land 
in the gift transaction, under subparagraph (1) of this paragraph the 
aggregate of the deductions allowed under sections 175 and 182 in 
respect of the farm land in the hands of B is the amount in the hands of 
A, $24,000, and for purposes of applying section 1252 upon a subsequent 
disposition by B (including a computation of the applicable percentage) 
the holding period of B includes the holding period of A.
    Example 2. Assume the same facts as in example (2) of paragraph 
(a)(4) of this section. Under subparagraph (2) of this paragraph, the 
aggregate of the sections 175 and 182 deductions which pass over to B 
for purposes of section 1252 is $14,000 ($24,000 deductions allowable 
under sections 175 and 182 minus $3,000 gain recognized under section 
1251(c) in accordance with example (2) of paragraph (a)(4) of Sec.  
1.1251-4, minus $7,000 gain recognized under section 1252(a) in 
acordance with example (2) of paragraph (a)(4) of this section), B's 
holding period includes the holding period of A (i.e., the period back 
to January 15, 1971) with respect to A's deductions.

    (g) Disposition of farm land not specifically covered. If farm land 
is disposed of in a transaction not specifically covered under Sec.  
1.1252-1 and this section, then the principles of section 1245 shall 
apply.

[T.D. 7418, 41 FR 18832, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec.  1.1254-0  Table of contents for section 1254 recapture rules.

    This section lists the major captions contained in Sec. Sec.  
1.1254-1 through 1.1254-6.

 Sec.  1.1254-1 Treatment of gain from disposition of natural resource 
                           recapture property.

    (a) In general.
    (b) Definitions.
    (1) Section 1254 costs.
    (2) Natural resource recapture property.
    (3) Disposition.
    (c) Disposition of a portion of natural resource recapture property.
    (1) Disposition of a portion (other than an undivided interest) of 
natural resource recapture property.
    (2) Disposition of an undivided interest.
    (3) Alternative allocation rule.
    (d) Installment method.

               Sec.  1.1254-2 Exceptions and limitations.

    (a) Exception for gifts and section 1041 transfers.
    (1) General rule.
    (2) Part gift transactions.
    (b) Exception for transfers at death.
    (c) Limitation for certain tax-free transactions.
    (1) General rule.
    (2) Special rule for dispositions to certain tax exempt 
organizations.
    (3) Transfers described.
    (4) Special rules for section 332 transfers.
    (d) Limitation for like kind exchanges and involuntary conversions.
    (1) General rule.
    (2) Disposition and acquisition of both natural resource recapture 
property and other property.

      Sec.  1.1254-3 Section 1254 costs immediately after certain 
                              acquisitions.

    (a) Transactions in which basis is determined by reference to cost 
or fair market value of property transferred.
    (1) Basis determined under section 1012.
    (2) Basis determined under section 301(d), 334(a), or 358(a)(2).
    (3) Basis determined solely under former section 334(b)(2) or former 
section 334(c).
    (4) Basis determined by reason of the application of section 
1014(a).
    (b) Gifts and certain tax-free transactions.
    (1) General rule.
    (2) Transactions covered.
    (c) Certain transfers at death.
    (d) Property received in a like kind exchange or involuntary 
conversion.
    (1) General rule.
    (2) Allocation of section 1254 costs among multiple natural resource 
recapture property acquired.
    (e) Property transferred in cases to which section 1071 or 1081(b) 
applies.

 Sec.  1.1254-4 Special rules for S corporations and their shareholders.

    (a) In general.
    (b) Determination of gain treated as ordinary income under section 
1254 upon a disposition of natural resource recapture property by an S 
corporation.
    (1) General rule.
    (2) Examples.
    (c) Character of gain recognized by a shareholder upon a sale or 
exchange of S corporation stock.
    (1) General rule.
    (2) Exceptions.
    (3) Examples.
    (d) Section 1254 costs of a shareholder.
    (e) Section 1254 costs of an acquiring shareholder after certain 
acquisitions.
    (1) Basis determined under section 1012.

[[Page 563]]

    (2) Basis determined under section 1014(a).
    (3) Basis determined under section 1014(b)(9).
    (4) Gifts and section 1041 transfers.
    (f) Special rules for a corporation that was formerly an S 
corporation or formerly a C corporation.
    (1) Section 1254 costs of an S corporation that was formerly a C 
corporation.
    (2) Examples.
    (3) Section 1254 costs of a C corporation that was formerly an S 
corporation.
    (g) Determination of a shareholder's section 1254 costs upon certain 
stock transactions
    (1) Issuance of stock.
    (2) Natural resource recapture property acquired in exchange for 
stock.
    (3) Treatment of nonvested stock.
    (4) Exception.
    (5) Aggregate of S corporation shareholders' section 1254 costs with 
respect to natural resource recapture property held by the S corporation
    (6) Examples.

    Sec.  1.1254-5 Special rules for partnerships and their partners.

    (a) In general.
    (b) Determination of gain treated as ordinary income under section 
1254 upon the disposition of natural resource recapture property by a 
partnership.
    (1) General rule.
    (2) Exception to partner level recapture in the case of abusive 
allocations.
    (3) Examples.
    (c) Section 1254 costs of a partner.
    (1) General rule.
    (2) Section 1254 costs of a transferee partner after certain 
acquisitions.
    (d) Property distributed to a partner.
    (1) In general.
    (2) Aggregate of partners' section 1254 costs with respect to 
natural resource recapture property held by a partnership.

              Sec.  1.1254-6 Effective date of regulations.

[T.D. 8586, 60 FR 2501, Jan. 10, 1995, as amended by T.D. 8684, 61 FR 
53063, Oct. 10, 1996]



Sec.  1.1254-1  Treatment of gain from disposition of natural resource 
recapture property.

    (a) In general. Upon any disposition of section 1254 property or any 
disposition after December 31, 1975 of oil, gas, or geothermal property, 
gain is treated as ordinary income in an amount equal to the lesser of 
the amount of the section 1254 costs (as defined in paragraph (b)(1) of 
this section) with respect to the property, or the amount, if any, by 
which the amount realized on the sale, exchange, or involuntary 
conversion, or the fair market value of the property on any other 
disposition, exceeds the adjusted basis of the property. However, any 
amount treated as ordinary income under the preceding sentence is not 
included in the taxpayer's gross income from the property for purposes 
of section 613. Generally, the lesser of the amounts described in this 
paragraph (a) is treated as ordinary income even though, in the absence 
of section 1254(a), no gain would be recognized upon the disposition 
under any other provision of the Internal Revenue Code. For the 
definition of the term section 1254 costs, see paragraph (b)(1) of this 
section. For the definition of the terms section 1254 property, oil, 
gas, or geothermal property, and natural resource recapture property, 
see paragraph (b)(2) of this section. For rules relating to the 
disposition of natural resource recapture property, see paragraphs 
(b)(3), (c), and (d) of this section. For exceptions and limitations to 
the application of section 1254(a), see Sec.  1.1254-2.
    (b) Definitions--(1) Section 1254 costs--(i) Property placed in 
service after December 31, 1986. With respect to any property placed in 
service by the taxpayer after December 31, 1986, the term section 1254 
costs means--
    (A) The aggregate amount of expenditures that have been deducted by 
the taxpayer or any person under section 263, 616, or 617 with respect 
to such property and that, but for the deduction, would have been 
included in the adjusted basis of the property or in the adjusted basis 
of certain depreciable property associated with the property; and
    (B) The deductions for depletion under section 611 that reduced the 
adjusted basis of the property.
    (ii) Property placed in service before January 1, 1987. With respect 
to any property placed in service by the taxpayer before January 1, 
1987, the term section 1254 costs means--
    (A) The aggregate amount of costs paid or incurred after December 
31, 1975, with respect to such property, that have been deducted as 
intangible drilling and development costs under section 263(c) by the 
taxpayer or any other person (except that section 1254 costs do not 
include costs incurred

[[Page 564]]

with respect to geothermal wells commenced before October 1, 1978) and 
that, but for the deduction, would be reflected in the adjusted basis of 
the property or in the adjusted basis of certain depreciable property 
associated with the property; reduced by
    (B) The amount (if any) by which the deduction for depletion allowed 
under section 611 that was computed either under section 612 or sections 
613 and 613A, with respect to the property, would have been increased if 
the costs (paid or incurred after December 31, 1975) had been charged to 
capital account rather than deducted.
    (iii) Deductions under section 59 and section 291. Amounts 
capitalized pursuant to an election under section 59(e) or pursuant to 
section 291(b) are treated as section 1254 costs in the year in which an 
amortization deduction is claimed under section 59(e)(1) or section 
291(b)(2).
    (iv) Suspended deductions. If a deduction of a section 1254 cost has 
been suspended as of the date of disposition of section 1254 property, 
the deduction is not treated as a section 1254 cost if it is included in 
basis for determining gain or loss on the disposition. On the other 
hand, if the deduction will eventually be claimed, it is a section 1254 
cost as of the date of disposition. For example, a deduction suspended 
pursuant to the 65 percent of taxable income limitation of section 
613A(d)(1) may either be included in basis upon disposition of the 
property or may be deducted in a year after the year of disposition. See 
Sec.  1.613A-4(a)(1). If it is included in the basis then it is not a 
section 1254 cost, but if it is deductible in a later year it is a 
section 1254 cost as of the date of the disposition.
    (v) Previously recaptured amounts. If an amount has been previously 
treated as ordinary income pursuant to section 1254, it is not a section 
1254 cost.
    (vi) Nonproductive wells. The aggregate amount of section 1254 costs 
paid or incurred on any property includes the amount of intangible 
drilling and development costs incurred on nonproductive wells, but only 
to the extent that the taxpayer recognizes income on the foreclosure of 
a nonrecourse debt the proceeds from which were used to finance the 
section 1254 costs with respect to the property. For this purpose, the 
term nonproductive well means a well that does not produce oil or gas in 
commercial quantities, including a well that is drilled for the purpose 
of ascertaining the existence, location, or extent of an oil or gas 
reservoir (e.g., a delineation well). The term nonproductive well does 
not include an injection well (other than an injection well drilled as 
part of a project that does not result in production in commercial 
quantities).
    (vii) Calculation of amount described in paragraph (b)(1)(ii)(B) of 
this section (hypothetical depletion offset)--(A) In general. In 
calculating the amount described in paragraph (b)(1)(ii)(B) of this 
section, the taxpayer shall apply the following rules. The taxpayer may 
use the 65-percent-of-taxable-income limitation of section 613A(d)(1). 
If the taxpayer uses that limitation, the taxpayer is not required to 
recalculate the effect of such limitation with respect to any property 
not disposed of. That is, the taxpayer may assume that the hypothetical 
capitalization of intangible drilling and development costs with respect 
to any property disposed of does not affect the allowable depletion with 
respect to property retained by the taxpayer. Any intangible drilling 
and development costs that, if they had not been treated as expenses 
under section 263(c), would have properly been capitalized under Sec.  
1.612-4(b)(2) (relating to items recoverable through depreciation under 
section 167 or cost recovery under section 168) are treated as costs 
described in Sec.  1.612-4(b)(1) (relating to items recoverable through 
depletion). The increase in depletion attributable to the capitalization 
of intangible drilling and development costs is computed by subtracting 
the amount of cost or percentage depletion actually claimed from the 
amount of cost or percentage depletion that would have been allowable if 
intangible drilling and development costs had been capitalized. If the 
remainder is zero or less than zero, the entire amount of intangible 
drilling and development costs attributable to the property is 
recapturable.
    (B) Example. The following example illustrates the principles of 
paragraph (b)(1)(vii)(A).


[[Page 565]]


    Example: Hypothetical depletion offset. In 1976, A purchased 
undeveloped property for $10,000. During 1977, A incurred $200,000 of 
productive well intangible drilling and development costs with respect 
to the property. A deducted the intangible drilling and development 
costs as expenses under section 263(c). Estimated reserves of 150,000 
barrels of recoverable oil were discovered in 1977 and production began 
in 1978. In 1978, A produced and sold 30,000 barrels of oil at $8 per 
barrel, resulting in $240,000 of gross income. A had no other oil or gas 
production in 1978. A claimed a percentage depletion deduction of 
$52,800 (i.e., 22% of $240,000 gross income from the property). If A had 
capitalized the intangible drilling and development costs, assume that 
$200,000 of the costs would have been allocated to the depletable 
property and none to depreciable property. A's cost depletion deduction 
if the intangible drilling and development costs had been capitalized 
would have been $42,000 (i.e., (($200,000 intangible drilling and 
development costs + $10,000 acquisition costs) x 30,000 barrels of 
production)/ 150,000 barrels of estimated recoverable reserves). Since 
this amount is less than A's depletion deduction of $52,800 (percentage 
depletion), no reduction is made to the amount of intangible drilling 
and development costs ($200,000). On January 1, 1979, A sold the oil 
property to B for $360,000 and calculated section 1254 recapture without 
reference to the 65-percent-of-taxable-income limitation. A's gain on 
the sale is the entire $360,000, because A's basis in the property at 
the beginning of 1979 is zero (i.e., $10,000 cost less $52,800 depletion 
deduction for 1978). Since the section 1254 costs ($200,000) are less 
than A's gain on the sale, $200,000 is treated as ordinary income under 
section 1254(a). The remaining amount of A's gain ($160,000) is not 
subject to section 1254(a).

    (2) Natural resource recapture property--(i) In general. The term 
natural resource recapture property means section 1254 property or oil, 
gas, or geothermal property as those terms are defined in this section.
    (ii) Section 1254 property. The term section 1254 property means any 
property (within the meaning of section 614) that is placed in service 
by the taxpayer after December 31, 1986, if any expenditures described 
in paragraph (b)(1)(i)(A) of this section (relating to costs under 
section 263, 616, or 617) are properly chargeable to such property, or 
if the adjusted basis of such property includes adjustments for 
deductions for depletion under section 611.
    (iii) Oil, gas, or geothermal property. The term oil, gas, or 
geothermal property means any property (within the meaning of section 
614) that was placed in service by the taxpayer before January 1, 1987, 
if any expenditures described in paragraph (b)(1)(ii)(A) of this section 
are properly chargeable to such property.
    (iv) Property to which section 1254 costs are properly chargeable. 
(A) An expenditure is properly chargeable to property if--
    (1) The property is an operating mineral interest with respect to 
which the expenditure has been deducted;
    (2) The property is a nonoperating mineral interest (e.g., a net 
profits interest or an overriding royalty interest) burdening an 
operating mineral interest if the nonoperating mineral interest is 
carved out of an operating mineral interest described in paragraph 
(b)(2)(iv)(A)(1) of this section;
    (3) The property is a nonoperating mineral interest retained by a 
lessor or sublessor if such lessor or sublessor held, prior to the lease 
or sublease, an operating mineral interest described in paragraph 
(b)(2)(iv)(A)(1) of this section; or
    (4) The property is an operating or a nonoperating mineral interest 
held by a taxpayer if a party related to the taxpayer (within the 
meaning of section 267(b) or section 707(b)) held an operating mineral 
interest (described in paragraph (b)(2)(iv)(A)(1) of this section) in 
the same tract or parcel of land that terminated (in whole or in part) 
without being disposed of (e.g., a working interest which terminated 
after a specified period of time or a given amount of production), but 
only if there exists between the related parties an arrangement or plan 
to avoid recapture under section 1254. In such a case, the taxpayer's 
section 1254 costs with respect to the property include those of the 
related party.
    (B) Example. The following example illustrates the provisions of 
paragraph (2)(iv)(A)(4) of this section:

    Example: Arrangement or plan to avoid recapture. C, an individual, 
owns 100% of the stock of both X Co. and Y Co. On January 1, 1998, X Co. 
enters into a standard oil and gas lease. X Co. immediately assigns to Y 
Co. 1% of the working interest for one year, and 99% of the working 
interest thereafter. In 1998, X Co. and Y Co. expend $300 in intangible 
drilling and development costs developing the tract, of which $297 are 
deducted by X Co.

[[Page 566]]

under section 263(c). On January 1, 1999, Y Co. sells its 99% share of 
the working interest to an unrelated person. Based on all the facts and 
circumstances, the arrangement between X Co. and Y Co. is part of a plan 
or arrangement to avoid recapture under section 1254. Therefore, Y Co. 
must include in its section 1254 costs the $297 of intangible drilling 
and development costs deducted by X Co.

    (v) Property the basis of which includes adjustments for depletion 
deductions. The adjusted basis of property includes adjustments for 
depletion under section 611 if--
    (A) The basis of the property has been reduced by reason of 
depletion deductions; or
    (B) The property has been carved out of or is a portion of property 
the basis of which has been reduced by reason of depletion deductions.
    (vi) Property held by a transferee. Property held by a transferee is 
natural resource recapture property if the property was natural resource 
recapture property in the hands of the transferor and the transferee's 
basis in the property is determined with reference to the transferor's 
basis in the property (e.g., a gift) or is determined under section 732.
    (vii) Property held by a transferor. Property held by a transferor 
of natural resource recapture property is natural resource recapture 
property if the transferor's basis in the property received is 
determined with reference to the transferor's basis in the property 
transferred by the transferor (e.g., a like kind exchange). For purposes 
of this paragraph (b)(2), property described in this paragraph 
(b)(2)(vii) is treated as placed in service at the time the property 
transferred by the transferor was placed in service by the transferor.
    (3) Disposition--(i) General rule. The term disposition has the same 
meaning as in section 1245, relating to gain from dispositions of 
certain depreciable property.
    (ii) Exceptions. The term disposition does not include--
    (A) Any transaction that is merely a financing device, such as a 
mortgage or a production payment that is treated as a loan under section 
636 and the regulations thereunder;
    (B) Any abandonment (except that an abandonment is a disposition to 
the extent the taxpayer recognizes income on the foreclosure of a 
nonrecourse debt);
    (C) Any creation of a lease or sublease of natural resource 
recapture property;
    (D) Any termination or election of the status of an S corporation;
    (E) Any unitization or pooling arrangement;
    (F) Any expiration or reversion of an operating mineral interest 
that expires or reverts by its own terms, in whole or in part; or
    (G) Any conversion of an overriding royalty interest that, at the 
option of the grantor or successor in interest, converts to an operating 
mineral interest after a certain amount of production.
    (iii) Special rule for carrying arrangements. In a carrying 
arrangement, liability for section 1254 costs attributable to the entire 
operating mineral interest held by the carrying party prior to reversion 
or conversion remains attributable to the reduced operating mineral 
interest retained by the carrying party after a portion of the operating 
mineral interest has reverted to the carried party or after the 
conversion of an overriding royalty interest that, at the option of the 
grantor or successor in interest, converts to an operating mineral 
interest after a certain amount of production.
    (c) Disposition of a portion of natural resource recapture 
property--(1) Disposition of a portion (other than an undivided 
interest) of natural resource recapture property--(i) Natural resource 
recapture property subject to the general rules of Sec.  1.1254-1. For 
purposes of section 1254(a)(1) and paragraph (a) of this section, except 
as provided in paragraphs (c) (1)(ii) and (3) of this section, in the 
case of the disposition of a portion (that is not an undivided interest) 
of natural resource recapture property, the entire amount of the section 
1254 costs with respect to the natural resource recapture property is 
treated as allocable to that portion of the property to the extent of 
the amount of gain to which section 1254(a)(1) applies. If the amount of 
the gain to which section 1254(a)(1) applies is less than the amount of 
the section 1254 costs with

[[Page 567]]

respect to the natural resource recapture property, the balance of the 
section 1254 costs remaining after allocation to the portion of the 
property that was disposed of remains subject to recapture by the 
taxpayer under section 1254(a)(1) upon disposition of the remaining 
portion of the property. For example, assume that A owns an 80-acre 
tract of land with respect to which A has deducted intangible drilling 
and development costs under section 263(c). If A sells the north 40 
acres, the entire amount of the section 1254 costs with respect to the 
80-acre tract is treated as allocable to the 40-acre portion sold (to 
the extent of the amount of gain to which section 1254(a)(1) applies).
    (ii) Natural resource recapture property subject to the exceptions 
and limitations of Sec.  1.1254-2. For purposes of section 1254(a)(1) 
and paragraph (a) of this section, except as provided in paragraph 
(b)(3) of this section, in the case of the disposition of a portion 
(that is not an undivided interest) of natural resource recapture 
property to which section 1254(a)(1) does not apply by reason of the 
application of Sec.  1.1254-2 (certain nonrecognition transactions), the 
following rule for allocation of costs applies. An amount of the section 
1254 costs that bears the same ratio to the entire amount of such costs 
with respect to the entire natural resource recapture property as the 
value of the property transferred bears to the value of the entire 
natural resource recapture property is treated as allocable to the 
portion of the natural resource recapture property transferred. The 
balance of the section 1254 costs remaining after allocation to that 
portion of the transferred property remains subject to recapture by the 
taxpayer under section 1254(a)(1) upon disposition of the remaining 
portion of the property. For example, assume that A owns an 80-acre 
tract of land with respect to which A has deducted intangible drilling 
and development costs under section 263(c). If A gives away the north 40 
acres, and if 60 percent of the value of the 80-acre tract were 
attributable to the north 40 acres given away, 60 percent of the section 
1254 costs with respect to the 80-acre tract is allocable to the north 
40 acres given away.
    (2) Disposition of an undivided interest--(i) Natural resource 
recapture property subject to the general rules of Sec.  1.1254-1. For 
purposes of section 1254(a)(1), except as provided in paragraphs 
(b)(2)(ii) and (b)(3) of this section, in the case of the disposition of 
an undivided interest in natural resource recapture property (or a 
portion thereof), a proportionate part of the section 1254 costs with 
respect to the natural resource recapture property is treated as 
allocable to the transferred undivided interest to the extent of the 
amount of gain to which section 1254(a)(1) applies. For example, assume 
that A owns an 80-acre tract of land with respect to which A has 
deducted intangible drilling and development costs under section 263(c). 
If A sells an undivided 40 percent interest in the 80-acre tract, 40 
percent of the section 1254 costs with respect to the 80-acre tract is 
allocable to the transferred 40 percent interest in the 80-acre tract. 
However, if the amount of gain recognized on the sale of the 40 percent 
undivided interest were equal to only 35 percent of the amount of 
section 1254 costs attributable to the 80-acre tract, only 35 percent of 
the section 1254 costs would be treated as attributable to the undivided 
40 percent interest. See paragraph (c)(3) of this section for an 
alternative allocation rule.
    (ii) Natural resource recapture property subject to the exceptions 
and limitations of Sec.  1.1254-2. For purposes of section 1254(a)(1) 
and paragraph (a) of this section, except as provided in paragraph 
(b)(3) of this section, in the case of a disposition of an undivided 
interest in natural resource recapture property (or a portion thereof) 
to which section 1254 (a)(1) does not apply by reason of Sec.  1.1254-2, 
a proportionate part of the section 1254 costs with respect to the 
natural resource recapture property is treated as allocable to the 
transferred undivided interest. See paragraph (c)(3) of this section for 
an alternative allocation rule.
    (3) Alternative allocation rule--(i) In general. The rules for the 
allocation of costs set forth in section 1254(a)(2) and paragraphs (c) 
(1) and (2) of this section do not apply with respect to section 1254 
costs that the taxpayer establishes to the satisfaction of the 
Commissioner

[[Page 568]]

do not relate to the transferred property. Except as provided in 
paragraphs (c)(3) (ii) and (iii) of this section, a taxpayer may satisfy 
this requirement only by receiving a private letter ruling from the 
Internal Revenue Service that the section 1254 costs do not relate to 
the transferred property.
    (ii) Portion of property. Upon the transfer of a portion of a 
natural resource recapture property (other than an undivided interest) 
with respect to which section 1254 costs have been incurred, a taxpayer 
may treat section 1254 costs as not relating to the transferred portion 
if the transferred portion does not include any part of any deposit with 
respect to which the costs were incurred.
    (iii) Undivided interest. Upon the transfer of an undivided interest 
in a natural resource recapture property with respect to which section 
1254 costs have been incurred, a taxpayer may treat costs as not 
relating to the transferred interest if the undivided interest is an 
undivided interest in a portion of the natural resource recapture 
property, and the portion would be eligible for the alternative 
allocation rule under paragraph (c)(3)(ii) of this section.
    (iv) Substantiation. If a taxpayer treats section 1254 costs 
incurred with respect to a natural resource recapture property as not 
relating to a transferred interest in a portion of the property, the 
taxpayer must indicate on his or her tax return that the costs do not 
relate to the transferred portion and maintain the records and 
supporting evidence that substantiate this position.
    (d) Installment method. Gain from a disposition to which section 
1254(a)(1) applies is reported on the installment method if that method 
otherwise applies under section 453 or 453A of the Internal Revenue Code 
and the regulations thereunder. The portion of each installment payment 
as reported that represents income (other than interest) is treated as 
gain to which section 1254(a)(1) applies until all of the gain (to which 
section 1254(a)(1) applies) has been reported, and the remaining portion 
(if any) of the income is then treated as gain to which section 
1254(a)(1) does not apply. For treatment of amounts as interest on 
certain deferred payments, see sections 483, 1274, and the regulations 
thereunder.

[T.D. 8586, 60 FR 2502, Jan. 10, 1995]



Sec.  1.1254-2  Exceptions and limitations.

    (a) Exception for gifts and section 1041 transfers--(1) General 
rule. No gain is recognized under section 1254(a)(1) upon a disposition 
of natural resource recapture property by a gift or by a transfer in 
which no gain or loss is recognized pursuant to section 1041 (relating 
to transfers between spouses). For purposes of this paragraph (a), the 
term gift means, except to the extent that paragraph (a)(2) of this 
section applies, a transfer of natural resource recapture property that, 
in the hands of the transferee, has a basis determined under the 
provisions of section 1015(a) or 1015(d) (relating to basis of property 
acquired by gift) or section 1022 (relating to the basis of property 
acquired from certain decedents who died in 2010). For rules concerning 
the potential reduction in the amount of the charitable contribution in 
the case of natural resource recapture property, see section 170(e) and 
Sec.  1.170A-4. See Sec.  1.1254-3(b)(1) for determination of potential 
recapture of section 1254 costs on property acquired by gift. See Sec.  
1.1254-1 (c)(1)(ii) and (c)(2)(ii) for apportionment of section 1254 
costs on a gift of a portion of natural resource recapture property.
    (2) Part gift transactions. If a disposition of natural resource 
recapture property is in part a sale or exchange and in part a gift, the 
gain that is treated as ordinary income pursuant to section 1254(a)(1) 
is the lower of the section 1254 costs with respect to the property or 
the excess of the amount realized upon the disposition of the property 
over the adjusted basis of the property. In the case of a transfer 
subject to section 1011(b) (relating to bargain sales to charitable 
organizations), the adjusted basis for purposes of the preceding 
sentence is the adjusted basis for determining gain or loss under 
section 1011(b).
    (b) Exception for transfers at death. Except as provided in section 
691 (relating to income in respect of a decedent), no gain is recognized 
under section 1254(a)(1) upon a transfer at death. For

[[Page 569]]

purposes of this paragraph, the term transfer at death means a transfer 
of natural resource recapture property that, in the hands of the 
transferee, has a basis determined under the provisions of section 
1014(a) (relating to basis of property acquired from a decedent) because 
of the death of the transferor. See Sec.  1.1254-3 (a)(4) and (c) for 
the determination of potential recapture of section 1254 costs on 
property acquired in a transfer at death.
    (c) Limitation for certain tax-free transactions--(1) General rule. 
Upon a transfer of property described in paragraph (c)(3) of this 
section, the amount of gain treated as ordinary income by the transferor 
under section 1254(a)(1) may not exceed the amount of gain recognized to 
the transferor on the transfer (determined without regard to section 
1254). In the case of a transfer of both natural resource recapture 
property and property that is not natural resource recapture property in 
one transaction, the amount realized from the disposition of the natural 
resource recapture property is deemed to be equal to the amount that 
bears the same ratio to the total amount realized as the fair market 
value of the natural resource recapture property bears to the aggregate 
fair market value of all the property transferred. The preceding 
sentence is applied solely for purposes of computing the portion of the 
total gain (determined without regard to section 1254) that may be 
recognized as ordinary income under section 1254(a)(1).
    (2) Special rule for dispositions to certain tax-exempt 
organizations. Paragraph (c)(1) of this section does not apply to a 
disposition of natural resource recapture property to an organization 
(other than a cooperative described in section 521) that is exempt from 
the tax imposed by chapter I of the Internal Revenue Code. The preceding 
sentence does not apply to a disposition of natural resource recapture 
property to an organization described in section 511 (a)(2) or (b)(2) 
(relating to imposition of tax on unrelated business income of 
charitable, etc., organizations) if, immediately after the disposition, 
the organization uses the property in an unrelated trade or business as 
defined in section 513. If any property with respect to which gain is 
not recognized by reason of the exception of this paragraph (c)(2) 
ceases to be used in an unrelated trade or business of the organization 
acquiring the property, that organization is, for purposes of section 
1254, treated as having disposed of the property on the date of the 
cessation.
    (3) Transfers described. The transfers referred to in paragraph 
(c)(1) of this section are transfers of natural resource recapture 
property in which the basis of the natural resource recapture property 
in the hands of the transferee is determined by reference to its basis 
in the hands of the transferor by reason of the application of any of 
the following provisions:
    (i) Section 332 (relating to certain liquidations of subsidiaries). 
See paragraph (c)(4) of this section.
    (ii) Section 351 (relating to transfer to a corporation controlled 
by transferor).
    (iii) Section 361 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 721 (relating to transfers to a partnership in exchange 
for a partnership interest).
    (v) Section 731 (relating to distributions by a partnership to a 
partner). For purposes of this paragraph, the basis of natural resource 
recapture property distributed by a partnership to a partner is deemed 
to be determined by reference to the adjusted basis of such property to 
the partnership.
    (4) Special rules for section 332 transfers. In the case of a 
distribution in complete liquidation of a subsidiary to which section 
332 applies, the limitation provided in this paragraph (c) is confined 
to instances in which the basis of the natural resource recapture 
property in the hands of the transferee is determined, under section 
334(b)(1), by reference to its basis in the hands of the transferor. 
Thus, for example, the limitation may apply in respect of a liquidating 
distribution of natural resource recapture property by a subsidiary 
corporation to the parent corporation, but does not apply in respect of 
a liquidating distribution of natural resource recapture property to a 
minority shareholder. This paragraph (c)

[[Page 570]]

does not apply to a liquidating distribution of natural resource 
recapture property by a subsidiary to its parent if the parent's basis 
for the property is determined under section 334(b)(2) (as in effect 
before enactment of the Tax Reform Act of 1986), by reference to its 
basis for the stock of the subsidiary. This paragraph (c) does not apply 
to a liquidating distribution under section 332 of natural resource 
recapture property by a subsidiary to its parent if gain is recognized 
and there is a corresponding increase in the parent's basis in the 
property (e.g., certain distributions to a tax-exempt or foreign 
corporation).
    (d) Limitation for like kind exchanges and involuntary conversions--
(1) General rule. If natural resource recapture property is disposed of 
and gain (determined without regard to section 1254) is not recognized 
in whole or in part under section 1031 (relating to like kind exchanges) 
or section 1033 (relating to involuntary conversions), the amount of 
gain taken into account by the transferor under section 1254(a)(1) may 
not exceed the sum of--
    (i) The amount of gain recognized on the disposition (determined 
without regard to section 1254); plus
    (ii) The fair market value of property acquired that is not natural 
resource recapture property (determined without regard to Sec.  1.1254-
1(b)(2)(vii)) and is not taken into account under paragraph (d)(1)(i) of 
this section (that is, qualifying property under section 1031 or 1033 
that is not natural resource recapture property).
    (2) Disposition and acquisition of both natural resource recapture 
property and other property. For purposes of this paragraph (d), if both 
natural resource recapture property and property that is not natural 
resource recapture property are acquired as the result of one 
disposition in which both natural resource recapture property and 
property that is not natural resource recapture property are disposed 
of--
    (i) The total amount realized upon the disposition is allocated 
between the natural resource recapture property and the property that is 
not natural resource recapture property disposed of in proportion to 
their respective fair market values;
    (ii) The amount realized upon the disposition of the natural 
resource recapture property is deemed to consist of so much of the fair 
market value of the natural resource recapture property acquired as is 
not in excess of the amount realized from the natural resource recapture 
property disposed of, and the remaining portion (if any) of the amount 
realized upon the disposition of such property is deemed to consist of 
so much of the fair market value of the property that is not natural 
resource recapture property acquired as is not in excess of the 
remaining portion; and
    (iii) The amount realized upon the disposition of the property that 
is not natural resource recapture property is deemed to consist of so 
much of the fair market value of all the property acquired which was not 
taken into account under paragraph (d)(2)(ii) of this section. Except as 
provided in section 1060 and the regulations thereunder, if a buyer and 
seller have adverse interests as to such allocation of the amount 
realized, any arm's-length agreement between the buyer and seller is 
used to establish the allocation. In the absence of such an agreement, 
the allocation is made by taking into account the appropriate facts and 
circumstances.

[T.D. 8586, 60 FR 2505, Jan. 10, 1995, as amended by T.D. 8684, 61 FR 
53063, Oct. 10, 1996; T.D. 9811, 82 FR 6241, Jan. 19, 2017]



Sec.  1.1254-3  Section 1254 costs immediately after certain acquisitions.

    (a) Transactions in which basis is determined by reference to cost 
or fair market value of property transferred--(1) Basis determined under 
section 1012. If, on the date a person acquires natural resource 
recapture property, the person's basis for the property is determined 
solely by reference to its cost (within the meaning of section 1012), 
the amount of section 1254 costs with respect to the natural resource 
recapture property in the person's hands is zero on the acquisition 
date.
    (2) Basis determined under section 301(d), 334(a), or 358(a)(2). If, 
on the date a person acquires natural resource recapture property, the 
person's basis for the property is determined solely by reason of the 
application of section

[[Page 571]]

301(d) (relating to basis of property received in a corporate 
distribution), section 334(a) (relating to basis of property received in 
a liquidation in which gain or loss is recognized), or section 358(a)(2) 
(relating to basis of other property received in certain exchanges), the 
amount of the section 1254 costs with respect to the natural resource 
recapture property in the person's hands is zero on the acquisition 
date.
    (3) Basis determined solely under former section 334(b)(2) or former 
section 334(c). If, on the date a person acquires natural resource 
recapture property, the person's basis for the property is determined 
solely under the provisions of section 334(b)(2) (prior to amendment of 
that section by the Tax Equity and Fiscal Responsibility Act of 1982) or 
(c) (prior to repeal of that section by the Tax Reform Act of 1986) 
(relating to basis of property received in certain corporate 
liquidations), the amount of section 1254 costs with respect to the 
natural resource recapture property in the person's hands is zero on the 
acquisition date.
    (4) Basis determined by reason of the application of section 
1014(a). If, on the date a person acquires natural resource recapture 
property from a decedent, the person's basis is determined, by reason of 
the application of section 1014(a), solely by reference to the fair 
market value of the property on the date of the decedent's death or on 
the applicable date provided in section 2032 (relating to alternate 
valuation date), the amount of section 1254 costs with respect to the 
natural resource recapture property in the person's hands is zero on the 
acquisition date. See paragraph (c) of this section for the treatment of 
certain transfers at death.
    (b) Gifts and certain tax-free transactions--(1) General rule. If 
natural resource recapture property is transferred in a transaction 
described in paragraph (b)(2) of this section, the amount of section 
1254 costs with respect to the natural resource recapture property in 
the hands of the transferee immediately after the disposition is an 
amount equal to--
    (i) The amount of section 1254 costs with respect to the natural 
resource recapture property in the hands of the transferor immediately 
before the disposition (and in the case of an S corporation or 
partnership transferor, the section 1254 costs of the shareholders or 
partners with respect to the natural resource recapture property); minus
    (ii) The amount of any gain taken into account as ordinary income 
under section 1254(a)(1) by the transferor upon the disposition (and in 
the case of an S corporation or partnership transferor, any such gain 
taken into account as ordinary income by the shareholders or partners).
    (2) Transactions covered. The transactions to which paragraph (b)(1) 
of this section apply are--
    (i) A disposition that is a gift or in part a sale or exchange and 
in part a gift;
    (ii) A transaction described in section 1041(a);
    (iii) A disposition described in Sec.  1.1254-2(c)(3) (relating to 
certain tax-free transactions); or
    (iv) A transfer at death where basis of property in the hands of the 
transferee is determined under section 1022.
    (c) Certain transfers at death. If natural resource recapture 
property is acquired in a transfer at death, the amount of section 1254 
costs with respect to the natural resource recapture property in the 
hands of the transferee immediately after the transfer includes the 
amount, if any, of the section 1254 costs deducted by the transferee 
before the decedent's death, to the extent that the basis of the natural 
resource recapture property (determined under section 1014(a)) is 
required to be reduced under the second sentence of section 1014(b)(9) 
(relating to adjustments to basis where the property is acquired from a 
decedent prior to death).
    (d) Property received in a like kind exchange or involuntary 
conversion--(1) General rule. If natural resource recapture property is 
disposed of in a like kind exchange under section 1031 or involuntary 
conversion under section 1033, then immediately after the disposition 
the amount of section 1254 costs with respect to any natural resource 
recapture property acquired for the property transferred is an amount 
equal to--

[[Page 572]]

    (i) The amount of section 1254 costs with respect to the natural 
resource recapture property disposed of (including the section 1254 
costs of the shareholders of an S corporation or of the partners of a 
partnership with respect to the natural resource recapture property); 
minus
    (ii) The amount of any gain taken into account as ordinary income 
under section 1254(a)(1) by the transferor upon the disposition (and in 
the case of an S corporation or partnership transferor, any such gain 
taken into account as ordinary income by the shareholders or partners).
    (2) Allocation of section 1254 costs among multiple natural resource 
recapture properties acquired. If more than one parcel of natural 
resource recapture property is acquired at the same time from the same 
person in a transaction referred to in paragraph (d)(1) of this section, 
the total amount of section 1254 costs with respect to the parcels is 
allocated to the parcels in proportion to their respective adjusted 
bases.
    (e) Property transferred in cases to which section 1071 or 1081(b) 
applies. Rules similar to the rules of section 1245(b)(5) shall apply 
under section 1254.

[T.D. 8586, 60 FR 2506, Jan. 10, 1995, as amended by T.D. 8684, 61 FR 
53063, Oct. 10, 1996; T.D. 9811, 82 FR 6242, Jan. 19, 2017]



Sec.  1.1254-4  Special rules for S corporations and their shareholders.

    (a) In general. This section provides rules for applying the 
provisions of section 1254 to S corporations and their shareholders upon 
the disposition by an S corporation (and a corporation that was formerly 
an S corporation) of natural resource recapture property and upon the 
disposition by a shareholder of stock of an S corporation that holds 
natural resource recapture property.
    (b) Determination of gain treated as ordinary income under section 
1254 upon a disposition of natural resource recapture property by an S 
corporation--(1) General rule. Upon a disposition of natural resource 
recapture property by an S corporation, the amount of gain treated as 
ordinary income under section 1254 is determined at the shareholder 
level. Each shareholder must recognize as ordinary income under section 
1254 the lesser of--
    (i) The shareholder's section 1254 costs with respect to the 
property disposed of; or
    (ii) The shareholder's share of the amount, if any, by which the 
amount realized on the sale, exchange, or involuntary conversion, or the 
fair market value of the property upon any other disposition (including 
a distribution), exceeds the adjusted basis of the property.
    (2) Examples. The following examples illustrate the provisions of 
paragraph (b)(1) of this section:

    Example 1. Disposition of natural resource recapture property other 
than oil and gas property. A and B are equal shareholders in X, an S 
corporation. On January 1, 1997, X acquires for $90,000 an undeveloped 
mineral property, its sole property. During 1997, X expends and deducts 
$100,000 in developing the property. On January 15, 1998, X sells the 
property for $250,000 when X's basis in the property is $90,000. Thus, X 
recognizes gain of $160,000 on the sale. A and B's share of the $160,000 
gain recognized is $80,000 each. Each shareholder has $50,000 of section 
1254 costs with respect to the property. Under these circumstances, A 
and B each are required to recognize $50,000 of the $80,000 of gain on 
the sale of the property as ordinary income under section 1254.
    Example 2. Disposition of oil and gas property the adjusted basis of 
which is allocated to the shareholders under section 613A(c)(11). C and 
D are equal shareholders in Y, an S corporation. On January 1, 1997, Y 
acquires for $150,000 an undeveloped oil and gas property, its sole 
property. During 1997, Y expends in developing the property $40,000 in 
intangible drilling costs which it elects to expense under section 
263(c). On January 15, 1998, Y sells the property for $200,000. C and 
D's share of the $200,000 amount realized on the sale is $100,000 each. 
C and D each have a basis of $75,000 in the property and $20,000 of 
section 1254 costs with respect to the property. Under these 
circumstances, C and D each are required to recognize $20,000 of the 
$25,000 gain on the sale of the property as ordinary income under 
section 1254.

    (c) Character of gain recognized by a shareholder upon a sale or 
exchange of S corporation stock--(1) General rule. Except as provided in 
paragraph (c)(2) of this section, if an S corporation shareholder 
recognizes gain upon a sale or exchange of stock in the S corporation 
(determined without regard to section

[[Page 573]]

1254), the gain is treated as ordinary income under section 1254 to the 
extent of the shareholder's section 1254 costs (with respect to the 
shares sold or exchanged).
    (2) Exceptions--(i) Gain not attributable to section 1254 costs--(A) 
General rule. Paragraph (c)(1) of this section does not apply to any 
portion of the gain recognized on the sale or exchange of the stock that 
the taxpayer establishes is not attributable to section 1254 costs. The 
portion of the gain recognized that is not attributable to section 1254 
costs is that portion of the gain recognized that exceeds the amount of 
ordinary income that the shareholder would have recognized under section 
1254 (with respect to the shares sold or exchanged) if, immediately 
prior to the sale or exchange of the stock, the corporation had sold at 
fair market value all of the corporation's property the disposition of 
which would result in the recognition by the shareholder of ordinary 
income under section 1254.
    (B) Substantiation. To establish that a portion of the gain 
recognized is not attributable to a shareholder's section 1254 costs so 
as to qualify for the exception contained in paragraph (c)(2)(i)(A) of 
this section, the shareholder must attach to the shareholder's tax 
return a statement detailing the shareholder's share of the fair market 
value and basis, and the shareholder's section 1254 costs, for each of 
the S corporation's natural resource recapture properties held 
immediately before the sale or exchange of stock.
    (ii) Transactions entered into as part of a plan to avoid 
recognition of ordinary income under section 1254. In the case of a 
contribution of property prior to a sale or exchange of stock pursuant 
to a plan a principal purpose of which is to avoid recognition of 
ordinary income under section 1254, paragraph (c)(1) of this section 
does not apply. Instead, the amount recognized as ordinary income under 
section 1254 is the amount of ordinary income the selling or exchanging 
shareholder would have recognized under section 1254 (with respect to 
the shares sold or exchanged) had the S corporation sold its natural 
resource recapture property the disposition of which would have resulted 
in the recognition of ordinary income under section 1254. The amount 
recognized as ordinary income under the preceding sentence reduces the 
amount realized on the sale or exchange of the stock.
    This reduced amount realized is used in determining any gain or loss 
on the sale or exchange.
    (3) Examples. The following examples illustrate the provisions of 
this paragraph (c):

    Example 1. Application of general rule upon a sale of S corporation 
stock. C and D are equal shareholders in Y, an S corporation. As of 
January 1, 1997, Y holds two mining properties: Blackacre, with an 
adjusted basis of $5,000 and a fair market value of $35,000, and 
Whiteacre, with an adjusted basis of $20,000 and a fair market value of 
$15,000. Y also holds securities with a basis of $5,000 and a fair 
market value of $10,000. On January 1, 1997, D sells 50 percent of D's Y 
stock to E for $15,000. As of the date of the sale, D's adjusted basis 
in the Y stock sold is $7,500, and D has $18,000 of section 1254 costs 
with respect to Blackacre and $12,000 of section 1254 costs with respect 
to Whiteacre. Under this paragraph (c), the gain recognized by D upon 
the sale of Y stock is treated as ordinary income to the extent of D's 
section 1254 costs with respect to the stock sold, unless D establishes 
that a portion of such excess is not attributable to D's section 1254 
costs. However, because D would recognize $7,500 in ordinary income 
under section 1254 with respect to the stock sold if Y sold Blackacre 
(the only asset the disposition of which would result in ordinary income 
to D under section 1254), the $7,500 of gain recognized by D upon the 
sale of D's Y stock is attributable to D's section 1254 costs. 
Therefore, upon the sale of stock to E, D recognizes $7,500 of ordinary 
income under this paragraph (c).
    Example 2. Sale of S corporation stock where gain is not entirely 
attributable to section 1254 costs. Assume the same facts as in Example 
1, except that Blackacre has a fair market value of $25,000, and the 
securities have a fair market value of $20,000. Immediately prior to the 
sale of stock to E, if Y had sold Blackacre (its only asset the 
disposition of which would result in the recognition of ordinary income 
to D under section 1254), D would recognize $5,000 in ordinary income 
with respect to the stock sold under section 1254. D attaches a 
statement to D's tax return for 1997 detailing D's share of the fair 
market values and bases, and D's section 1254 costs with respect to 
Blackacre and Whiteacre. Therefore, upon the sale of stock to E, of the 
$7,500 gain recognized by D, $5,000 is ordinary income under this 
paragraph (c).
    Example 3. Contribution of property prior to sale of S corporation 
stock as part of a plan to

[[Page 574]]

avoid recognition of ordinary income under section 1254. H owns all of 
the stock of Z, an S corporation. As of January 1, 1997, H has $3,000 of 
section 1254 costs with respect to property P, which is natural resource 
recapture property and Z's only asset. Property P has an adjusted basis 
of $5,000 and a fair market value of $8,000. H has a basis of $5,000 in 
Z stock, which has a fair market value of $8,000. On January 1, 1997, H 
contributes securities to Z which have a basis of $7,000 and a fair 
market value of $4,000. On April 15, 1997, H sells all of the Z stock to 
J for $12,000. On that date, H's adjusted basis in the Z stock is also 
$12,000. Based on all the facts and circumstances, the sale of stock is 
part of a plan (along with the contribution by H of the securities to Z) 
that has a principal purpose to avoid recognition of ordinary income 
under section 1254. Consequently, under paragraph (c)(2)(ii) of this 
section, H must recognize $3,000 as ordinary income under section 1254, 
the amount of ordinary income that H would recognize as ordinary income 
under section 1254 if property P were sold at fair market value. In 
addition, H reduces the amount realized on the sale of the stock 
($12,000) by $3,000. As a result, H also recognizes a $3,000 capital 
loss on the sale of the stock ($9,000 amount realized less $12,000 
adjusted basis).

    (d) Section 1254 costs of a shareholder. An S corporation 
shareholder's section 1254 costs with respect to any natural resource 
recapture property held by the corporation include all of the 
shareholder's section 1254 costs with respect to the property in the 
hands of the S corporation. See Sec.  1.1254-1(b)(1) for the definition 
of section 1254 costs.
    (e) Section 1254 costs of an acquiring shareholder after certain 
acquisitions--(1) Basis determined under section 1012. If stock in an S 
corporation that holds natural resource recapture property is acquired 
and the acquiring shareholder's basis for the stock is determined solely 
by reference to its cost (within the meaning of section 1012), the 
amount of section 1254 costs with respect to the property held by the 
corporation in the acquiring shareholder's hands is zero on the 
acquisition date.
    (2) Basis determined under section 1014(a). If stock in an S 
corporation that holds natural resource recapture property is acquired 
from a decedent and the acquiring shareholder's basis is determined, by 
reason of the application of section 1014(a), solely by reference to the 
fair market value of the stock on the date of the decedent's death or on 
the applicable date provided in section 2032 (relating to alternate 
valuation date), the amount of section 1254 costs with respect to the 
property held by the corporation in the acquiring shareholder's hands is 
zero on the acquisition date.
    (3) Basis determined under section 1014(b)(9). If stock in an S 
corporation that holds natural resource recapture property is acquired 
before the death of the decedent, the amount of section 1254 costs with 
respect to the property held by the corporation in the acquiring 
shareholder's hands includes the amount, if any, of the section 1254 
costs deducted by the acquiring shareholder before the decedent's death, 
to the extent that the basis of the stock (determined under section 
1014(a)) is required to be reduced under section 1014(b)(9) (relating to 
adjustments to basis when the property is acquired before the death of 
the decedent).
    (4) Gifts and section 1041 transfers. If stock is acquired in a 
transfer that is a gift, in a transfer that is a part sale or exchange 
and part gift, in a transfer that is described in section 1041(a), or in 
a transfer at death where the basis of property in the hands of the 
transferee is determined under section 1022, the amount of section 1254 
costs with respect to the property held by the corporation in the 
acquiring shareholder's hands immediately after the transfer is an 
amount equal to--
    (i) The amount of section 1254 costs with respect to the property 
held by the corporation in the hands of the transferor immediately 
before the transfer; minus
    (ii) The amount of any gain recognized as ordinary income under 
section 1254 by the transferor upon the transfer.
    (f) Special rules for a corporation that was formerly an S 
corporation or formerly a C corporation--(1) Section 1254 costs of an S 
corporation that was formerly a C corporation. In the case of a C 
corporation that holds natural resource recapture property and that 
elects to be an S corporation, each shareholder's section 1254 costs as 
of the beginning of the corporation's first taxable year as an S 
corporation include a pro rata share of the section 1254 costs of the 
corporation as of the close of the last

[[Page 575]]

taxable year that the corporation was a C corporation.
    (2) Examples. The following examples illustrate the application of 
the provisions of paragraph (f)(1) of this section:

    Example 1. Sale of natural resource recapture property held by an S 
corporation that was formerly a C corporation. (i) Y is a C corporation 
that elects to be an S corporation effective January 1, 1997. On that 
date, Y owns Oil Well, which is natural resource recapture property and 
a capital asset. Y has section 1254 costs of $20,000 as of the close of 
the last taxable year that it was a C corporation. On January 1, 1997, 
Oil Well has a value of $200,000 and a basis of $100,000. Thus, under 
section 1374, Y's net unrealized built-in gain is $100,000. Also on that 
date, Y's basis in Oil Well is allocated to A, Y's sole shareholder, 
under section 613A(c)(11) and the section 1254 costs are allocated to A 
under paragraph (f)(1) of this section. In addition, A has a basis in 
A's Y stock of $100,000.
    (ii) On November 1, 1997, Y sells Oil Well for $250,000. During 
1997, Y has taxable income greater than $100,000, and no other 
transactions or items treated as recognized built-in gain or loss. Under 
section 1374, Y has net recognized built-in gain of $100,000. Assuming a 
tax rate of 35 percent on capital gain, Y has a tax of $35,000 under 
section 1374. The tax of $35,000 is treated as a capital loss under 
section 1366(f)(2). A has a realized gain on the sale of $150,000 
($250,000 minus $100,000) of which $20,000 is recognized as ordinary 
income under section 1254, and $130,000 is recognized as capital gain. 
Consequently, A recognizes ordinary income of $20,000 and net capital 
gain of $95,000 ($130,000 minus $35,000) on the sale.
    Example 2. Sale of stock followed by sale of natural resource 
recapture property held by an S corporation that was formerly a C 
corporation. (i) Assume the same facts as in Example 1(i). On November 
1, 1997, A sells all of A's Y stock to P for $250,000. A has a realized 
gain on the sale of $150,000 ($250,000 minus $100,000) of which $20,000 
is recognized as ordinary income under section 1254, and $130,000 is 
recognized as capital gain.
    (ii) On November 2, 1997, Y sells Oil Well for $250,000. During 
1997, Y has taxable income greater than $100,000, and no other 
transactions or items treated as recognized built-in gain or loss. Under 
section 1374, Y has net recognized built-in gain of $100,000. Assuming a 
tax rate of 35 percent on capital gain, Y has a tax of $35,000 under 
section 1374. The tax of $35,000 is treated as a capital loss under 
section 1366(f)(2). P has a realized gain on the sale of $150,000 
($250,000 minus $100,000), which is recognized as capital gain. 
Consequently, P recognizes net capital gain of $115,000 ($150,000 minus 
$35,000) on the sale.

    (3) Section 1254 costs of a C corporation that was formerly an S 
corporation. In the case of an S corporation that becomes a C 
corporation, the C corporation's section 1254 costs with respect to any 
natural resource recapture property held by the corporation as of the 
beginning of the corporation's first taxable year as a C corporation 
include the sum of its shareholders' section 1254 costs with respect to 
the property as of the close of the last taxable year that the 
corporation was an S corporation. In the case of an S termination year 
as defined in section 1362(e)(4), the shareholders' section 1254 costs 
are determined as of the close of the S short year as defined in section 
1362(e)(1)(A). See paragraph (g)(5) of this section for rules on 
determining the aggregate amount of the shareholders' section 1254 
costs.
    (g) Determination of a shareholder's section 1254 costs upon certain 
stock transactions--(1) Issuance of stock. Upon an issuance of stock 
(whether such stock is newly-issued or had been held as treasury stock) 
by an S corporation in a reorganization described in section 368 or 
otherwise--
    (i) Each recipient of shares must be allocated a pro rata share 
(determined solely with respect to the shares issued in the transaction) 
of the aggregate of the S corporation shareholders' section 1254 costs 
with respect to natural resource recapture property held by the S 
corporation immediately before the issuance (as determined pursuant to 
paragraph (g)(5) of this section); and
    (ii) Each pre-existing shareholder must reduce his or her section 
1254 costs with respect to natural resource recapture property held by 
the S corporation immediately before the issuance by an amount equal to 
the pre-existing shareholder's section 1254 costs immediately before the 
issuance multiplied by the percentage of stock of the corporation issued 
in the transaction.
    (2) Natural resource recapture property acquired in exchange for 
stock. If natural resource recapture property is transferred to an S 
corporation in exchange for stock of the S corporation (for example, in 
a section 351 transaction, or in a reorganization described in section 
368), the S corporation must allocate to

[[Page 576]]

its shareholders a pro rata share of the S corporation's section 1254 
costs with respect to the property immediately after the transaction (as 
determined under Sec.  1.1254-3(b)(1)).
    (3) Treatment of nonvested stock. Stock issued in connection with 
the performance of services that is substantially nonvested (within the 
meaning of Sec.  1.83-3(b)) is treated as issued for purposes of this 
section at the first time it is treated as outstanding stock of the S 
corporation for purposes of section 1361.
    (4) Exception. Paragraph (g)(1) of this section does not apply to 
stock issued in exchange for stock of the same S corporation (as for 
example, in a recapitalization described in section 368(a)(1)(E)).
    (5) Aggregate of S corporation shareholders' section 1254 costs with 
respect to natural resource recapture property held by the S 
corporation--(i) In general. The aggregate of S corporation 
shareholders' section 1254 costs is equal to the sum of each 
shareholder's section 1254 costs. The S corporation must determine each 
shareholder's section 1254 costs under either paragraph (g)(5)(ii) 
(written data) or paragraph (g)(5)(iii) (assumptions) of this section. 
The S corporation may determine the section 1254 costs of some 
shareholders under paragraph (g)(5)(ii) of this section and of others 
under paragraph (g)(5)(iii) of this section.
    (ii) Written data. An S corporation may determine a shareholder's 
section 1254 costs by using written data provided by a shareholder 
showing the shareholder's section 1254 costs with respect to natural 
resource recapture property held by the S corporation unless the S 
corporation knows or has reason to know that the written data is 
inaccurate. If an S corporation does not receive written data upon which 
it may rely, the S corporation must use the assumptions provided in 
paragraph (g)(5)(iii) of this section in determining a shareholder's 
section 1254 costs.
    (iii) Assumptions. An S corporation that does not use written data 
pursuant to paragraph (g)(5)(ii) of this section to determine a 
shareholder's section 1254 costs must use the following assumptions to 
determine the shareholder's section 1254 costs--
    (A) The shareholder deducted his or her share of the amount of 
deductions under sections 263(c), 616, and 617 in the first year in 
which the shareholder could claim a deduction for such amounts, unless 
in the case of expenditures under sections 263(c) or 616 the S 
corporation elected to capitalize such amounts;
    (B) The shareholder was not subject to the following limitations 
with respect to the shareholder's depletion allowance under section 611, 
except to the extent a limitation applied at the corporate level: the 
taxable income limitation of section 613(a); the depletable quantity 
limitations of section 613A(c); or the limitations of sections 
613A(d)(2), (3), and (4) (exclusion of retailers and refiners).
    (6) Examples. The following examples illustrate the provisions of 
this paragraph (g):

    Example 1. Transfer of natural resource recapture property to an S 
corporation in a section 351 transaction. As of January 1, 1997, A owns 
all the stock (20 shares) in X, an S corporation. X holds property that 
is not natural resource recapture property that has a fair market value 
of $2,000 and an adjusted basis of $2,000. On January 1, 1997, B 
transfers natural resource recapture property, Property P, to X in 
exchange for 80 shares of X stock in a transaction that qualifies under 
section 351. Property P has a fair market value of $8,000 and an 
adjusted basis of $5,000. Pursuant to section 351, B does not recognize 
gain on the transaction. Immediately prior to the transaction, B's 
section 1254 costs with respect to Property P equaled $6,000. Under 
Sec.  1.1254-2(c)(1), B does not recognize any gain under section 1254 
on the section 351 transaction and, under Sec.  1.1254-3(b)(1), X's 
section 1254 costs with respect to Property P immediately after the 
contribution equal $6,000. Under paragraph (g)(2) of this section, each 
shareholder is allocated a pro rata share of X's section 1254 costs. The 
pro rata share of X's section 1254 costs that is allocated to A equals 
$1,200 (20 percent interest in X multiplied by X's $6,000 of section 
1254 costs). The pro rata share of X's section 1254 costs that is 
allocated to B equals $4,800 (80 percent interest in X multiplied by X's 
$6,000 of section 1254 costs).
    Example 2. Contribution of money in exchange for stock of an S 
corporation holding natural resource recapture property. As of January 
1, 1997, A and B each own 50 percent of the stock (50 shares each) in X, 
an S corporation. X holds natural resource recapture property, Property 
P, which has a fair market value of $20,000 and an adjusted basis of

[[Page 577]]

$14,000. A's and B's section 1254 costs with respect to Property P are 
$4,000 and $1,500, respectively. On January 1, 1997, C contributes 
$20,000 to X in exchange for 100 shares of X's stock. Under paragraph 
(g)(1)(i) of this section, X must allocate to C a pro rata share of its 
shareholders' section 1254 costs. Using the assumptions set forth in 
paragraph (g)(5)(iii) of this section, X determines that A's section 
1254 costs with respect to natural resource recapture property held by X 
equal $4,500. Using written data provided by B, X determines that B's 
section 1254 costs with respect to Property P equal $1,500. Thus, the 
aggregate of X's shareholders' section 1254 costs equals $6,000. C's pro 
rata share of the $6,000 of section 1254 costs equals $3,000 (C's 50 
percent interest in X multiplied by $6,000). Under paragraph (g)(1)(ii) 
of this section, A's section 1254 costs are reduced by $2,000 (A's 
actual section 1254 costs ($4,000) multiplied by 50 percent). B's 
section 1254 costs are reduced by $750 (B's actual section 1254 costs 
($1,500) multiplied by 50 percent).
    Example 3. Merger involving an S corporation that holds natural 
resource recapture property. X, an S corporation with one shareholder, 
A, holds as its sole asset natural resource recapture property that has 
a fair market value of $120,000 and an adjusted basis of $40,000. A has 
section 1254 costs with respect to the property of $60,000. For valid 
business reasons, X merges into Y, an S corporation with one 
shareholder, B, in a reorganization described in section 368(a)(1)(A). Y 
holds property that is not natural resource recapture property that has 
a fair market value of $120,000 and basis of $120,000. Under paragraph 
(c) of this section, A does not recognize ordinary income under section 
1254 upon the exchange of stock in the merger because A did not 
otherwise recognize gain on the merger. Under paragraph (g)(2) of this 
section, Y must allocate to A and B a pro rata share of its $60,000 of 
section 1254 costs. Thus, A and B are each allocated $30,000 of section 
1254 costs (50 percent interest in X, each, multiplied by $60,000).

[T.D. 8684, 61 FR 53063, Oct. 10, 1996, as amended by T.D. 9811, 82 FR 
6242, Jan. 19, 2017]



Sec.  1.1254-5  Special rules for partnerships and their partners.

    (a) In general. This section provides rules for applying the 
provisions of section 1254 to partnerships and their partners upon the 
disposition of natural resource recapture property by the partnership 
and certain distributions of property by a partnership. See section 751 
and the regulations thereunder for rules concerning the treatment of 
gain upon the transfer of a partnership interest.
    (b) Determination of gain treated as ordinary income under section 
1254 upon the disposition of natural resource recapture property by a 
partnership--(1) General rule. Upon a disposition of natural resource 
recapture property by a partnership, the amount treated as ordinary 
income under section 1254 is determined at the partner level. Each 
partner must recognize as ordinary income under section 1254 the lesser 
of--
    (i) The partner's section 1254 costs with respect to the property 
disposed of; or
    (ii) The partner's share of the amount, if any, by which the amount 
realized upon the sale, exchange, or involuntary conversion, or the fair 
market value of the property upon any other disposition, exceeds the 
adjusted basis of the property.
    (2) Exception to partner level recapture in the case of abusive 
allocations. Paragraph (b)(1) of this section does not apply in 
determining the amount treated as ordinary income under section 1254 
upon a disposition of section 1254 property by a partnership if the 
partnership has allocated the amount realized or gain recognized from 
the disposition with a principal purpose of avoiding the recognition of 
ordinary income under section 1254. In such case, the amount of gain on 
the disposition recaptured as ordinary income under section 1254 is 
determined at the partnership level.
    (3) Examples. The provisions of paragraphs (a) and (b) of this 
section are illustrated by the following examples which assume that 
capital accounts are maintained in accordance with section 704(b) and 
the regulations thereunder:

    Example 1. Partner level recapture--In general. A, B, and C, have 
equal interests in capital in Partnership ABC that was formed on January 
1, 1985. The partnership acquired an undeveloped domestic oil property 
on January 1, 1985, for $120,000. The partnership allocated the 
property's basis to each partner in proportion to the partner's interest 
in partnership capital, so each partner was allocated $40,000 of basis. 
In 1985, the partnership incurred $60,000 of productive well intangible 
drilling and development costs with respect to the property. The 
partnership elected to deduct the intangible drilling and development 
costs as expenses under section 263(c).

[[Page 578]]

Each partner deducted $20,000 of the intangible drilling and development 
costs. Assume that depletion allowable under section 613A(c)(7)(D) for 
each partner for 1985 was $10,000. On January 1, 1986, the partnership 
sold the oil property to an unrelated third party for $210,000. Each 
partner's allocable share of the amount realized is $70,000. Each 
partner's basis in the oil property at the end of 1985 is $30,000 
($40,000 cost--$10,000 depletion deductions claimed). Each partner has a 
gain of $40,000 on the sale of the oil property ($70,000 amount 
realized--$30,000 adjusted basis in the oil property). Assume that each 
partner's depletion allowance would not have been increased if the 
intangible drilling and development costs had been capitalized. Each 
partner's section 1254 costs with respect to the property are $20,000. 
Thus, A, B, and C each must treat $20,000 of gain recognized as ordinary 
income under section 1254(a).
    Example 2. Special allocation of intangible drilling and development 
costs. K and L form a partnership on January 1, 1997, to acquire and 
develop a geothermal property as defined under section 613(e)(2). The 
partnership agreement provides that all intangible drilling and 
development costs will be allocated to partner K, and that all other 
items of income, gain, or loss will be allocated equally between the two 
partners. Assume these allocations have substantial economic effect 
under section 704(b) and the regulations thereunder. The partnership 
acquires a lease covering undeveloped acreage located in the United 
States for $50,000. In 1997, the partnership incurs $50,000 of 
intangible drilling and development costs that are allocated to partner 
K. The partnership also has $30,000 of depletion deductions, which are 
allocated equally between K and L. On January 1, 1998, the partnership 
sells the geothermal property to an unrelated third party for $160,000 
and recognizes a gain of $140,000 ($160,000 amount realized less $20,000 
adjusted basis ($50,000 unadjusted basis less $30,000 depletion 
deductions)). This gain is allocated equally between K and L. Because 
K's section 1254 costs are $65,000 and L's section 1254 costs are 
$15,000, K recognizes $65,000 as ordinary income under section 1254(a) 
and L recognizes $15,000 as ordinary income under section 1254(a). The 
remaining $5,000 of gain allocated to K and $55,000 of gain allocated to 
L is characterized without regard to section 1254.
    Example 3. Section 59(e) election to capitalize intangible drilling 
and development costs. Partnership DK has 50 equal partners. On January 
1, 1995, the partnership purchases an undeveloped oil and gas property 
for $100,000. The partnership allocates the property's basis equally 
among the partners, so each partner is allocated $2,000 of basis. In 
January 1995, the partnership incurs $240,000 of intangible drilling and 
development costs with respect to the property. The partnership elects 
to deduct the intangible drilling and development costs as expenses 
under section 263(c). Each partner is allocated $4,800 of intangible 
drilling and development costs. One of the partners, H, elects under 
section 59(e) to capitalize his $4,800 share of intangible drilling and 
development costs. Therefore, H is permitted to amortize his $4,800 
share of intangible drilling and development costs over 60 months. H 
takes a $960 amortization deduction in 1995. Each of the remaining 49 
partners deducts his $4,800 share of intangible drilling and development 
costs in 1995. Assume that depletion allowable for each partner under 
section 613A(c)(7)(D) for 1995 is $1,000. On December 31, 1995, the 
partnership sells the property for $300,000. Each partner is allocated 
$6,000 of amount realized. Each partner that deducted the intangible 
drilling and development costs has a basis in the oil property at the 
end of 1995 of $1,000 ($2,000 cost - $1,000 depletion deductions 
claimed). Each of these partners has a gain of $5,000 on the sale of the 
oil property ($6,000 amount realized - $1,000 adjusted basis in the 
property). The section 1254 costs of each partner that deducted 
intangible drilling and development costs are $5,800 ($4,800 intangible 
drilling and development costs deducted + $1,000 depletion deductions 
claimed). Because each partner's section 1254 costs ($5,800) exceed each 
partner's share of amount realized less each partner's adjusted basis 
($5,000), each partner must treat his $5,000 gain recognized on the sale 
of the oil property as ordinary income under section 1254(a). Because H 
elected under section 59(e) to capitalize the $4,800 of intangible 
drilling and development costs and amortized only $960 of the costs in 
1995, the $3,840 of unamortized intangible drilling and development 
costs are included in H's basis in the oil property. Therefore, at the 
end of 1995 H's basis in the oil property is $4,840 (($2,000 cost + 
$4,800 capitalized intangible drilling and development costs) - ($960 
intangible drilling and development costs amortized + $1,000 depletion 
deduction claimed)). H's gain on the sale of the oil property is $1,160 
($6,000 amount realized - $4,840 adjusted basis). H's section 1254 costs 
are $1,960 ($960 intangible drilling and development costs amortized + 
$1,000 depletion deductions claimed). Because H's section 1254 costs 
($1,960) exceed H's share of amount realized less H's adjusted basis 
($1,160), H must treat the $1,160 of gain recognized as ordinary income 
under section 1254(a).

    (c) Section 1254 costs of a partner--(1) General rule. A partner's 
section 1254 costs with respect to property held by a partnership 
include all of the partner's section 1254 costs with respect to

[[Page 579]]

the property in the hands of the partnership. In the case of property 
contributed to a partnership in a transaction described in section 721, 
a partner's section 1254 costs include all of the partner's section 1254 
costs with respect to the property prior to contribution. Section 
1.1254-1(b)(1)(iv), which provides rules concerning the treatment of 
suspended deductions, applies to amounts not deductible pursuant to 
section 704(d).
    (2) Section 1254 costs of a transferee partner after certain 
acquisitions--(i) Basis determined under section 1012. If a person 
acquires an interest in a partnership that holds natural resource 
recapture property (transferee partner) and the transferee partner's 
basis for the interest is determined by reference to its cost (within 
the meaning of section 1012), the amount of the transferee partner's 
section 1254 costs with respect to the property held by the partnership 
is zero on the acquisition date.
    (ii) Basis determined by reason of the application of section 
1014(a). If a transferee partner acquires an interest in a partnership 
that holds natural resource recapture property from a decedent and the 
transferee partner's basis is determined, by reason of the application 
of section 1014(a), solely by reference to the fair market value of the 
partnership interest on the date of the decedent's death or on the 
applicable date provided in section 2032 (relating to alternate 
valuation date), the amount of the transferee partner's section 1254 
costs with respect to property held by the partnership is zero on the 
acquisition date.
    (iii) Basis determined by reason of the application of section 
1014(b)(9). If an interest in a partnership that holds natural resource 
recapture property is acquired before the death of the decedent, the 
amount of the transferee partner's section 1254 costs with respect to 
property held by the partnership shall include the amount, if any, of 
the section 1254 costs deducted by the transferee partner before the 
decedent's death, to the extent that the basis of the partner's interest 
(determined under section 1014(a)) is required to be reduced under 
section 1014(b)(9) (relating to adjustments to basis when the property 
is acquired before the death of the decedent).
    (iv) Gifts and section 1041 transfers. If an interest in a 
partnership is transferred in a transfer that is a gift, in a transfer 
that is a part sale or exchange and part gift, in a transfer that is 
described in section 1041(a), or in a transfer at death where the basis 
of property in the hands of the transferee is determined under section 
1022, the amount of the transferee partner's section 1254 costs with 
respect to property held by the partnership immediately after the 
transfer is an amount equal to--
    (A) The amount of the transferor partner's section 1254 costs with 
respect to the property immediately before the transfer; minus
    (B) The amount of any gain recognized as ordinary income under 
section 1254 by the transferor partner upon the transfer.
    (d) Property distributed to a partner--(1) In general. The section 
1254 costs for any natural resource recapture property received by a 
partner in a distribution with respect to part or all of an interest in 
a partnership include--
    (i) The aggregate of the partners' section 1254 costs with respect 
to the natural resource recapture property immediately prior to the 
distribution; reduced by
    (ii) The amount of any gain taken into account as ordinary income 
under section 751 by the partnership or the partners (as constituted 
after the distribution) on the distribution of the natural resource 
recapture property.
    (2) Aggregate of partners' section 1254 costs with respect to 
natural resource recapture property held by a partnership--(i) In 
general. The aggregate of partners' section 1254 costs is equal to the 
sum of each partner's section 1254 costs. The partnership must determine 
each partner's section 1254 costs under either paragraph (d)(2)(i)(A) 
(written data) or paragraph (d)(2)(i)(B) (assumptions) of this section. 
The partnership may determine the section 1254 costs of some of the 
partners under paragraph (d)(2)(i)(A) of this section and of others 
under paragraph (d)(2)(i)(B) of this section.
    (A) Written data. A partnership may determine a partner's section 
1254 costs by using written data provided by a

[[Page 580]]

partner showing the partner's section 1254 costs with respect to natural 
resource recapture property held by the partnership unless the 
partnership knows or has reason to know that the written data is 
inaccurate. If a partnership does not receive written data upon which it 
may rely, the partnership must use the assumptions provided in paragraph 
(d)(2)(i)(B) of this section in determining a partner's section 1254 
costs.
    (B) Assumptions. A partnership that does not use written data 
pursuant to paragraph (d)(2)(i)(A) of this section to determine a 
partner's section 1254 costs must use the following assumptions to 
determine the partner's section 1254 costs:
    (1) The partner deducted his or her share of deductions under 
section 263(c), 616, or 617 for the first year in which the partner 
could claim a deduction for such amounts, unless in the case of 
expenditures under section 263(c) or 616, the partnership elected to 
capitalize such amounts;
    (2) The partner was not subject to the following limitations with 
respect to the partner's depletion allowance under section 611, except 
to the extent a limitation applied at the partnership level: the taxable 
income limitation of section 613(a); the depletable quantity limitations 
of section 613A(c); or the limitations of section 613A(d)(2), (3), and 
(4) (exclusion of retailers and refiners).

[T.D. 8586, 60 FR 2507, Jan. 10, 1995, as amended by T.D. 9811, 82 FR 
6242, Jan. 19, 2017]



Sec.  1.1254-6  Effective/applicability date.

    (a) Sections 1.1254-1 through 1.1254-3 and 1.1254-5 are effective 
with respect to any disposition of natural resource recapture property 
occurring after March 13, 1995. The rule in Sec.  1.1254-
1(b)(2)(iv)(A)(2), relating to a nonoperating mineral interest carved 
out of an operating mineral interest with respect to which an 
expenditure has been deducted, is effective with respect to any 
disposition occurring after March 13, 1995, of property (within the 
meaning of section 614) that is placed in service by the taxpayer after 
December 31, 1986. Section 1.1254-4 applies to dispositions of natural 
resource recapture property by an S corporation (and a corporation that 
was formerly an S corporation) and dispositions of S corporation stock 
occurring on or after October 10, 1996. Sections 1.1254-2(d)(1)(ii) and 
1.1254-3(b)(1)(i), (b)(1)(ii), (d)(1)(i), and (d)(1)(ii) are effective 
for dispositions of property occurring on or after October 10, 1996.
    (b) The provisions of Sec. Sec.  1.1254-2(a)(1), 1.1254-3(b)(2), 
1.1254-4(e)(4), and 1.1254-5(c)(2)(iv) that relate to section 1022 are 
effective on and after January 19, 2017.

[T.D. 9811, 82 FR 6242, Jan. 19, 2017]



Sec.  1.1256(e)-1  Identification of hedging transactions.

    (a) Identification and recordkeeping requirements. Under section 
1256(e)(2), a taxpayer that enters into a hedging transaction must 
identify the transaction as a hedging transaction before the close of 
the day on which the taxpayer enters into the transaction.
    (b) Requirements for identification. The identification of a hedging 
transaction for purposes of section 1256(e)(2) must satisfy the 
requirements of Sec.  1.1221-2(f)(1). Solely for purposes of section 
1256(f)(1), however, an identification that does not satisfy all of the 
requirements of Sec.  1.1221-2(f)(1) is nevertheless treated as an 
identification under section 1256(e)(2).
    (c) Consistency with Sec.  1.1221-2. Any identification for purposes 
of Sec.  1.1221-2(f)(1) is also an identification for purposes of this 
section. If a taxpayer satisfies the requirements of Sec.  1.1221-
2(g)(1)(ii), the transaction is treated as if it were not identified as 
a hedging transaction for purposes of section 1256(e)(2).
    (d) Effective date. The rules of this section apply to transactions 
entered into on or after March 20, 2002.

[T.D. 8985, 67 FR 12870, Mar. 20, 2002; 67 FR 31955, May 13, 2002]



Sec.  1.1256(e)-2  Special rules for syndicates.

    (a) Allocation of losses. For purposes of section 1256(e)(3), 
syndicate means any partnership or other entity (other than a 
corporation that is not an S corporation) if more than 35 percent of the 
losses of such entity during the taxable year are allocated to limited 
partners

[[Page 581]]

or limited entrepreneurs (within the meaning of section 461(k)(4)).
    (b) Determination of loss amount. For purposes of section 
1256(e)(3), the amount of losses to be allocated under paragraph (a) of 
this section is calculated without regard to section 163(j).
    (c) Example. The following example illustrates the rules in this 
section:
    (1) Facts. Entity is an S corporation that is equally owned by 
individuals A and B. A provides all of the goods and services provided 
by Entity. B provided all of the capital for Entity but does not 
participate in Entity's business. For the current taxable year, Entity 
has gross receipts of $5,000,000, non-interest expenses of $4,500,000, 
and interest expense of $600,000.
    (2) Analysis. Under paragraph (b) of this section, Entity has a net 
loss of $100,000 ($5,000,000 minus $5,100,000) for the current taxable 
year. One half (50 percent) of this loss is allocated to B, a limited 
owner. Therefore, for the current taxable year, Entity is a syndicate 
within the meaning of section 1256(e)(3)(B).
    (d) Applicability date. This section applies to taxable years 
beginning on or after March 22, 2021. However, taxpayers and their 
related parties, within the meaning of sections 267(b) (determined 
without regard to section 267(c)(3)) and 707(b)(1), may choose to apply 
the rules in this section for a taxable year beginning after December 
31, 2017, and before March 22, 2021, provided that those taxpayers and 
their related parties consistently apply all of the rules of this 
section to that taxable year and each subsequent taxable year.

[T.D. 9943, 86 FR 5540, Jan. 19, 2021]



Sec.  1.1258-1  Netting rule for certain conversion transactions.

    (a) Purpose. The purpose of this section is to provide taxpayers 
with a method to net certain gains and losses from positions of the same 
conversion transaction before determining the amount of gain treated as 
ordinary income under section 1258(a).
    (b) Netting of gain and loss for identified transactions--(1) In 
general. If a taxpayer disposes of or terminates all the positions of an 
identified netting transaction (as defined in paragraph (b)(2) of this 
section) within a 14-day period in a single taxable year, all gains and 
losses on those positions taken into account for Federal tax purposes 
within that period (other than built-in losses as defined in paragraph 
(c) of this section) are netted solely for purposes of determining the 
amount of gain treated as ordinary income under section 1258(a). For 
purposes of the preceding sentence, a taxpayer is treated as disposing 
of any position that is treated as sold under any provision of the Code 
or regulations thereunder (for example, under section 1256(a)(1)).
    (2) Identified netting transaction. For purposes of this section, an 
identified netting transaction is a conversion transaction (as defined 
in section 1258(c)) that the taxpayer identifies as an identified 
netting transaction on its books and records. Identification of each 
position of the conversion transaction must be made before the close of 
the day on which the position becomes part of the conversion 
transaction. No particular form of identification is necessary, but all 
the positions of a single conversion transaction must be identified as 
part of the same transaction and must be distinguished from all other 
positions.
    (c) Definition of built-in loss. For purposes of this section, 
built-in loss means--
    (1) Built-in loss as defined in section 1258(d)(3)(B); and
    (2) If a taxpayer realizes gain or loss on any one position of a 
conversion transaction (for example, under section 1256), as of the date 
that gain or loss is realized, any unrecognized loss in any other 
position of the conversion transaction that is not disposed of, 
terminated, or treated as sold under any provision of the Code or 
regulations thereunder within 14 days of and within the same taxable 
year as the realization event.
    (d) Examples. These examples illustrate this section:

    Example 1. Identified netting transaction with simultaneous actual 
dispositions. (i) On December 1, 1995, A purchases 1,000 shares of XYZ 
stock for $100,000 and enters into a forward contract to sell 1,000 
shares of XYZ stock on November 30, 1997, for $110,000. The XYZ stock is 
actively traded as defined in Sec.  1.1092(d)-1(a) and is a capital 
asset in A's hands. A maintains books and records on

[[Page 582]]

which, on December 1, 1995, it identifies the two positions as all the 
positions of a single conversion transaction. A owns no other XYZ stock. 
On December 1, 1996, when the applicable imputed income amount for the 
transaction is $7,000, A sells the 1,000 shares of XYZ stock for 
$95,000. On the same day, A terminates its forward contract with its 
counterparty, receiving $10,200. No dividends were received on the stock 
during the time it was part of the conversion transaction.
    (ii) The XYZ stock and forward contract are positions of a 
conversion transaction. Under section 1258(c)(1), substantially all of 
A's expected return from the overall transaction is attributable to the 
time value of the net investment in the transaction. Under section 
1258(c)(2)(B), the transaction is an applicable straddle as defined in 
section 1258(d)(1).
    (iii) A disposed of or terminated all the positions of the 
conversion transaction within 14 days and within the same taxable year 
as required by paragraph (b)(1) of this section. The transaction is an 
identified netting transaction because it meets the identification 
requirement of paragraph (b)(2) of this section. Solely for purposes of 
section 1258(a), the $5,000 loss realized ($100,000 basis less $95,000 
amount realized) on the disposition of the XYZ stock is netted against 
the $10,200 gain recognized on the disposition of the forward contract. 
Thus, the net gain from the conversion transaction for purposes of 
section 1258(a) is $5,200 ($10,200 gain less $5,000 loss). Only the 
$5,200 net gain is recharacterized as ordinary income under section 
1258(a) even though the applicable imputed income amount is $7,000. For 
Federal tax purposes other than section 1258(a), A has recognized a 
$10,200 gain on the disposition of the forward contract ($5,200 of which 
is treated as ordinary income) and realized a separate $5,000 loss on 
the sale of the XYZ stock.
    Example 2. Identified netting transaction with built-in loss. (i) 
The facts are the same as in Example 1, except that A had purchased the 
XYZ stock for $104,000 on May 15, 1995. The XYZ stock had a fair market 
value of $100,000 on December 1, 1995, the date it became part of a 
conversion transaction.
    (ii) The results are the same as in Example 1, except that A has 
built-in loss (in addition to the $5,000 loss that arose economically 
during the period of the conversion transaction), as defined in section 
1258(d)(3)(B), of $4,000 on the XYZ stock. That $4,000 built-in loss is 
not netted against the $10,200 gain on the forward contract for purposes 
of section 1258(a). Thus, the net gain from the conversion transaction 
for purposes of section 1258(a) is $5,200, the same as in Example 1. The 
$4,000 built-in loss is recognized and has a character determined 
without regard to section 1258.

    (e) Effective date and transition rule--(1) In general. These 
regulations are effective for conversion transactions that are 
outstanding on or after December 21, 1995.
    (2) Transition rule for identification requirements. In the case of 
a conversion transaction entered into before February 20, 1996, 
paragraph (b)(2) of this section is treated as satisfied if the 
identification is made before the close of business on February 20, 
1996.

[T.D. 8649, 60 FR 66084, Dec. 21, 1995]



Sec.  1.1271-0  Original issue discount; effective date; table of contents.

    (a) Effective date. Except as otherwise provided, Sec. Sec.  1.1271-
1 through 1.1275-5 apply to debt instruments issued on or after April 4, 
1994. Taxpayers, however, may rely on these sections (as contained in 26 
CFR part 1 revised April 1, 1996) for debt instruments issued after 
December 21, 1992, and before April 4, 1994.
    (b) Table of contents. This section lists captioned paragraphs 
contained in Sec. Sec.  1.1271-1 through 1.1275-7.

     Sec.  1.1271-1 Special rules applicable to amounts received on 
           retirement, sale, or exchange of debt instruments.

    (a) Intention to call before maturity.
    (1) In general.
    (2) Exceptions.
    (b) Short-term obligations.
    (1) In general.
    (2) Method of making elections.
    (3) Counting conventions.

           Sec.  1.1272-1 Current inclusion of OID in income.

    (a) Overview.
    (1) In general.
    (2) Debt instruments not subject to OID inclusion rules.
    (b) Accrual of OID.
    (1) Constant yield method.
    (2) Exceptions.
    (3) Modifications.
    (4) Special rules for determining the OID allocable to an accrual 
period.
    (c) Yield and maturity of certain debt instruments subject to 
contingencies.
    (1) Applicability.
    (2) Payment schedule that is significantly more likely than not to 
occur.
    (3) Mandatory sinking fund provision.
    (4) Consistency rule. [Reserved]
    (5) Treatment of certain options.
    (6) Subsequent adjustments.
    (7) Effective date.
    (d) Certain debt instruments that provide for a fixed yield.

[[Page 583]]

    (e) Convertible debt instruments.
    (f) Special rules to determine whether a debt instrument is a short-
term obligation.
    (1) Counting of either the issue date or maturity date.
    (2) Coordination with paragraph (c) of this section for certain 
sections of the Internal Revenue Code.
    (g) Basis adjustment.
    (h) Debt instruments denominated in a currency other than the U.S. 
dollar.
    (i) [Reserved]
    (j) Examples.

  Sec.  1.1272-2 Treatment of debt instruments purchased at a premium.

    (a) In general.
    (b) Definitions and special rules.
    (1) Purchase.
    (2) Premium.
    (3) Acquisition premium.
    (4) Acquisition premium fraction.
    (5) Election to accrue discount on a constant yield basis.
    (6) Special rules for determining basis.
    (c) Examples.

  Sec.  1.1272-3 Election by a holder to treat all interest on a debt 
                           instrument as OID.

    (a) Election.
    (b) Scope of election.
    (1) In general.
    (2) Exceptions, limitations, and special rules.
    (c) Mechanics of the constant yield method.
    (1) In general.
    (2) Special rules to determine adjusted basis.
    (d) Time and manner of making the election.
    (e) Revocation of election.
    (f) Effective date.

                    Sec.  1.1273-1 Definition of OID.

    (a) In general.
    (b) Stated redemption price at maturity.
    (c) Qualified stated interest.
    (1) Definition.
    (2) Debt instruments subject to contingencies.
    (3) Variable rate debt instrument.
    (4) Stated interest in excess of qualified stated interest.
    (5) Short-term obligations.
    (6) Business day convention.
    (d) De minimis OID.
    (1) In general.
    (2) De minimis amount.
    (3) Installment obligations.
    (4) Special rule for interest holidays, teaser rates, and other 
interest shortfalls.
    (5) Treatment of de minimis OID by holders.
    (e) Definitions.
    (1) Installment obligation.
    (2) Self-amortizing installment obligation.
    (3) Weighted average maturity.
    (f) Examples.

       Sec.  1.1273-2 Determination of issue price and issue date.

    (a) Debt instruments issued for money.
    (1) Issue price.
    (2) Issue date.
    (b) Publicly traded debt instruments issued for property.
    (1) Issue price.
    (2) Issue date.
    (c) Debt instruments issued for publicly traded property.
    (1) Issue price.
    (2) Issue date.
    (d) Other debt instruments.
    (1) Issue price.
    (2) Issue date.
    (e) Special rule for certain sales to bond houses, brokers, or 
similar persons.
    (f) Traded on an established market (publicly traded).
    (1) In general.
    (2) Sales price.
    (3) Firm quote.
    (4) Indicative quote.
    (5) Presumption that price or quote is equal to fair market value.
    (6) Exception for small debt issues.
    (7) Anti-abuse rules.
    (8) Convertible debt instruments.
    (9) Issuer-holder consistency requirement.
    (10) Effective/applicability dates.
    (g) Treatment of certain cash payments incident to lending 
transactions.
    (1) Applicability.
    (2) Payments from borrower to lender.
    (3) Payments from lender to borrower.
    (4) Payments between lender and third party.
    (5) Examples.
    (h) Investment units.
    (1) In general.
    (2) Consistent allocation by holders and issuer.
    (i) [Reserved]
    (j) Convertible debt instruments.
    (k) Below-market loans subject to section 7872(b).
    (l) [Reserved]
    (m) Treatment of amounts representing pre-issuance accrued interest.
    (1) Applicability.
    (2) Exclusion of pre-issuance accrued interest from issue price.
    (3) Example.

     Sec.  1.1274-1 Debt instruments to which section 1274 applies.

    (a) In general.
    (b) Exceptions.
    (1) Debt instrument with adequate stated interest and no OID .
    (2) Exceptions under sections 1274(c)(1)(B), 1274(c)(3), 1274A(c), 
and 1275(b)(1).

[[Page 584]]

    (3) Other exceptions to section 1274.
    (c) Examples.

  Sec.  1.1274-2 Issue price of debt instruments to which section 1274 
                                applies.

    (a) In general.
    (b) Issue price.
    (1) Debt instruments that provide for adequate stated interest; 
stated principal amount.
    (2) Debt instruments that do not provide for adequate stated 
interest; imputed principal amount.
    (3) Debt instruments issued in a potentially abusive situation; fair 
market value.
    (c) Determination of whether a debt instrument provides for adequate 
stated interest.
    (1) In general.
    (2) Determination of present value.
    (d) Treatment of certain options.
    (e) Mandatory sinking funds.
    (f) Treatment of variable rate debt instruments.
    (1) Stated interest at a qualified floating rate.
    (2) Stated interest at a single objective rate.
    (g) Treatment of contingent payment debt instruments.
    (h) Examples.
    (i) [Reserved]
    (j) Special rules for tax-exempt obligations.
    (1) Certain variable rate debt instruments.
    (2) Contingent payment debt instruments.
    (3) Effective date.

         Sec.  1.1274-3 Potentially abusive situations defined.

    (a) In general.
    (b) Operating rules.
    (1) Debt instrument exchanged for nonrecourse financing.
    (2) Nonrecourse debt with substantial down payment.
    (3) Clearly excessive interest.
    (4) Debt-for-debt exchange.
    (c) Other situations to be specified by Commissioner.
    (d) Consistency rule.

                        Sec.  1.1274-4 Test rate.

    (a) Determination of test rate of interest.
    (1) In general.
    (2) Test rate for certain debt instruments.
    (b) Applicable Federal rate.
    (c) Special rules to determine the term of a debt instrument for 
purposes of determining the applicable Federal rate.
    (1) Installment obligations.
    (2) Certain variable rate debt instruments.
    (3) Counting of either the issue date or the maturity date.
    (4) Certain debt instruments that provide for principal payments 
uncertain as to time.
    (d) Foreign currency loans.
    (e) Examples.

                       Sec.  1.1274-5 Assumptions.

    (a) In general.
    (b) Modifications of debt instruments.
    (1) In general.
    (2) Election to treat buyer as modifying the debt instrument.
    (c) Wraparound indebtedness.
    (d) Consideration attributable to assumed debt.

  Sec.  1.1274A-1 Special rules for certain transactions where stated 
              principal amount does not exceed $2,800,000.

    (a) In general.
    (b) Rules for both qualified and cash method debt instruments.
    (1) Sale-leaseback transactions.
    (2) Debt instruments calling for contingent payments.
    (3) Aggregation of transactions.
    (4) Inflation adjustment of dollar amounts.
    (c) Rules for cash method debt instruments.
    (1) Time and manner of making cash method election.
    (2) Successors of electing parties.
    (3) Modified debt instrument.
    (4) Debt incurred or continued to purchase or carry a cash method 
debt instrument.

                       Sec.  1.1275-1 Definitions.

    (a) Applicability.
    (b) Adjusted issue price.
    (1) In general.
    (2) Adjusted issue price for subsequent holders.
    (c) OID.
    (d) Debt instrument.
    (e) Tax-exempt obligations.
    (f) Issue.
    (1) Debt instruments issued on or after March 13, 2001.
    (2) Debt instruments issued before March 13, 2001.
    (3) Transition rule.
    (4) Cross-references for reopening and aggregation rules.
    (g) Debt instruments issued by a natural person.
    (h) Publicly offered debt instrument.
    (i) [Reserved]
    (j) Life annuity exception under section 1275(a)(1)(B)(i).
    (k) Exception under section 1275(a)(1)(B)(ii) for annuities issued 
by an insurance company subject to tax under subchapter L of the 
Internal Revenue Code.
    (1) Rule.
    (2) Examples.
    (3) Effective date.
    (1) Purpose.
    (2) General rule.
    (3) Availability of a cash surrender option.
    (4) Availability of a loan secured by the contract.
    (5) Minimum payout provision.

[[Page 585]]

    (6) Maximum payout provision.
    (7) Decreasing payout provision.
    (8) Effective dates.

       Sec.  1.1275-2 Special rules relating to debt instruments.

    (a) Payment ordering rule.
    (1) In general.
    (2) Exceptions.
    (b) Debt instruments distributed by corporations with respect to 
stock.
    (1) Treatment of distribution.
    (2) Issue date.
    (c) Aggregation of debt instruments.
    (1) General rule.
    (2) Exception if separate issue price established.
    (3) Special rule for debt instruments that provide for the issuance 
of additional debt instruments.
    (4) Examples.
    (d) Special rules for Treasury securities.
    (1) Issue price and issue date.
    (2) Reopenings of Treasury securities.
    (e) Disclosure of certain information to holders.
    (f) Treatment of pro rata prepayments.
    (1) Treatment as retirement of separate debt instrument.
    (2) Definition of pro rata prepayment.
    (g) Anti-abuse rule.
    (1) In general.
    (2) Unreasonable result.
    (3) Examples.
    (4) Effective date.
    (h) Remote and incidental contingencies.
    (1) In general.
    (2) Remote contingencies.
    (3) Incidental contingencies.
    (4) Aggregation rule.
    (5) Consistency rule.
    (6) Subsequent adjustments.
    (7) Effective date.
    (i) [Reserved]
    (j) Treatment of certain modifications.
    (k) Reopenings.
    (1) In general.
    (2) Definitions.
    (3) Qualified reopening.
    (4) Issuer's treatment of a qualified reopening.
    (5) Effective/applicability dates.
    (l) OID rule for income item subject to section 451(b).
    (1) In general.
    (2) Applicability dates.
    (m) Transition from certain interbank offered rates.
    (1) In general.
    (2) Single qualified floating rate.
    (3) Remote contingency.
    (4) Change in circumstances.
    (5) Applicability date.

         Sec.  1.1275-3 OID information reporting requirements.

    (a) In general.
    (b) Information required to be set forth on face of debt instruments 
that are not publicly offered.
    (1) In general.
    (2) Time for legending.
    (3) Legend must survive reissuance upon transfer.
    (4) Exceptions.
    (c) Information required to be reported to Secretary upon issuance 
of publicly offered debt instruments.
    (1) In general.
    (2) Time for filing information return.
    (3) Exceptions.
    (4) Subsequent registration.
    (d) Application to foreign issuers and U.S. issuers of 
foreigntargeted debt instruments.
    (e) Penalties.
    (f) Effective date.

           Sec.  1.1275-4 Contingent payment debt instruments.

    (a) Applicability.
    (1) In general.
    (2) Exceptions.
    (3) Insolvency and default.
    (4) Convertible debt instruments.
    (5) Remote and incidental contingencies.
    (b) Noncontingent bond method.
    (1) Applicability.
    (2) In general.
    (3) Description of method.
    (4) Comparable yield and projected payment schedule.
    (5) Qualified stated interest.
    (6) Adjustments.
    (7) Adjusted issue price, adjusted basis, and retirement.
    (8) Character on sale, exchange, or retirement.
    (9) Operating rules.
    (c) Method for debt instruments not subject to the noncontingent 
bond method.
    (1) Applicability.
    (2) Separation into components.
    (3) Treatment of noncontingent payments.
    (4) Treatment of contingent payments.
    (5) Basis different from adjusted issue price.
    (6) Treatment of a holder on sale, exchange, or retirement.
    (7) Examples.
    (d) Rules for tax-exempt obligations.
    (1) In general.
    (2) Certain tax-exempt obligations with interest-based or revenue-
based payments
    (3) All other tax-exempt obligations.
    (4) Basis different from adjusted issue price.
    (e) Amounts treated as interest under this section.
    (f) Effective date.

             Sec.  1.1275-5 Variable rate debt instruments.

    (a) Applicability.
    (1) In general.
    (2) Principal payments.

[[Page 586]]

    (3) Stated interest.
    (4) Current value.
    (5) No contingent principal payments.
    (6) Special rule for debt instruments issued for nonpublicly traded 
property.
    (b) Qualified floating rate.
    (1) In general.
    (2) Certain rates based on a qualified floating rate.
    (3) Restrictions on the stated rate of interest.
    (c) Objective rate.
    (1) Definition.
    (2) Other objective rates to be specified by Commissioner.
    (3) Qualified inverse floating rate.
    (4) Significant front-loading or back-loading of interest.
    (5) Tax-exempt obligations.
    (d) Examples.
    (e) Qualified stated interest and OID with respect to a variable 
rate debt instrument.
    (1) In general.
    (2) Variable rate debt instrument that provides for annual payments 
of interest at a single variable rate.
    (3) All other variable rate debt instruments except for those that 
provide for a fixed rate.
    (4) Variable rate debt instrument that provides for a single fixed 
rate.
    (f) Special rule for certain reset bonds.

       Sec.  1.1275-6 Integration of qualifying debt instruments.

    (a) In general.
    (b) Definitions.
    (1) Qualifying debt instrument.
    (2) Section 1.1275-6 hedge.
    (3) Financial instrument.
    (4) Synthetic debt instrument.
    (c) Integrated transaction.
    (1) Integration by taxpayer.
    (2) Integration by Commissioner.
    (d) Special rules for legging into and legging out of an integrated 
transaction.
    (1) Legging into.
    (2) Legging out.
    (e) Identification requirements.
    (f) Taxation of integrated transactions.
    (1) General rule.
    (2) Issue date.
    (3) Term.
    (4) Issue price.
    (5) Adjusted issue price.
    (6) Qualified stated interest.
    (7) Stated redemption price at maturity.
    (8) Source of interest income and allocation of expense.
    (9) Effectively connected income.
    (10) Not a short-term obligation.
    (11) Special rules in the event of integration by the Commissioner.
    (12) Retention of separate transaction rules for certain purposes.
    (13) Coordination with consolidated return rules.
    (g) Predecessors and successors.
    (h) Examples.
    (i) [Reserved]
    (j) Effective date.

           Sec.  1.1275-7 Inflation-indexed debt instruments.

    (a) Overview.
    (b) Applicability.
    (1) In general.
    (2) Exceptions.
    (c) Definitions.
    (1) Inflation-indexed debt instrument.
    (2) Reference index.
    (3) Qualified inflation index.
    (4) Inflation-adjusted principal amount.
    (5) Minimum guarantee payment.
    (d) Coupon bond method.
    (1) In general.
    (2) Applicability.
    (3) Qualified stated interest.
    (4) Inflation adjustments.
    (5) Example.
    (e) Discount bond method.
    (1) In general.
    (2) No qualified stated interest.
    (3) OID.
    (4) Example.
    (f) Special rules.
    (1) Deflation adjustments.
    (2) Adjusted basis.
    (3) Subsequent holders.
    (4) Minimum guarantee.
    (5) Temporary unavailability of a qualified inflation index.
    (g) TIPS.
    (1) Reopenings.
    (2) TIPS issued with more than a de minimis amount of premium.
    (h) Effective/applicability dates.
    (1) In general.
    (2) TIPS issued with more than a de minimis amount of premium.

[T.D. 8517, 59 FR 4808, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30139, June 14, 1996; T.D. 8709, 62 FR 617, Jan. 6, 1997; T.D. 8754, 63 
FR 1057, Jan. 8, 1998; T.D. 8838, 64 FR 48547, Sept. 7, 1999; T.D. 8840, 
64 FR 60343, Nov. 5, 1999; T.D. 8934, 66 FR 2815, Jan. 12, 2001; T.D. 
8993, 67 FR 30548, May 7, 2002; T.D. 9599, 77 FR 56536, Sept. 13, 2012; 
T.D. 9609, 78 FR 668, Jan. 4, 2013; T.D. 9616, 78 FR 23126, Apr. 18, 
2013; T.D. 9941, 86 FR 862, Jan. 6, 2021; 86 FR 1256, Jan. 8, 2021; T.D. 
9941, 86 FR 2974, Jan. 14, 2021; T.D. 9961, 87 FR 182, Jan. 4, 2022]



Sec.  1.1271-1  Special rules applicable to amounts received on retirement, 
sale, or exchange of debt instruments.

    (a) Intention to call before maturity--(1) In general. For purposes 
of section 1271(a)(2), all or a portion of gain realized on a sale or 
exchange of a debt instrument to which section 1271 applies is treated 
as interest income if there

[[Page 587]]

was an intention to call the debt instrument before maturity. An 
intention to call a debt instrument before maturity means a written or 
oral agreement or understanding not provided for in the debt instrument 
between the issuer and the original holder of the debt instrument that 
the issuer will redeem the debt instrument before maturity. In the case 
of debt instruments that are part of an issue, the agreement or 
understanding must be between the issuer and the original holders of a 
substantial amount of the debt instruments in the issue. An intention to 
call before maturity can exist even if the intention is conditional 
(e.g., the issuer's decision to call depends on the financial condition 
of the issuer on the potential call date) or is not legally binding. For 
purposes of this section, original holder means the first holder (other 
than an underwriter or dealer that purchased the debt instrument for 
resale in the ordinary course of its trade or business).
    (2) Exceptions. In addition to the exceptions provided in sections 
1271(a)(2)(B) and 1271(b), section 1271(a)(2) does not apply to--
    (i) A debt instrument that is publicly offered (as defined in Sec.  
1.1275-1(h));
    (ii) A debt instrument to which section 1272(a)(6) applies (relating 
to certain interests in or mortgages held by a REMIC, and certain other 
debt instruments with payments subject to acceleration); or
    (iii) A debt instrument sold pursuant to a private placement 
memorandum that is distributed to more than ten offerees and that is 
subject to the sanctions of section 12(2) of the Securities Act of 1933 
(15 U.S.C. 77l) or the prohibitions of section 10(b) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78j).
    (b) Short-term obligations--(1) In general. Under sections 1271 
(a)(3) and (a)(4), all or a portion of the gain realized on the sale or 
exchange of a short-term government or nongovernment obligation is 
treated as interest income. Sections 1271 (a)(3) and (a)(4), however, do 
not apply to any short-term obligation subject to section 1281. See 
Sec.  1.1272-1(f) for rules to determine if an obligation is a short-
term obligation.
    (2) Method of making elections. Elections to accrue on a constant 
yield basis under sections 1271 (a)(3)(E) and (a)(4)(D) are made on an 
obligation-by-obligation basis by reporting the transaction on the basis 
of daily compounding on the taxpayer's timely filed Federal income tax 
return for the year of the sale or exchange. These elections are 
irrevocable.
    (3) Counting conventions. In computing the ratable share of 
acquisition discount under section 1271(a)(3) or OID under section 
1271(a)(4), any reasonable counting convention may be used (e.g., 30 
days per month/360 days per year).

[T.D. 8517, 59 FR 4809, Feb. 2, 1994]



Sec.  1.1272-1  Current inclusion of OID in income.

    (a) Overview--(1) In general. Under section 1272(a)(1), a holder of 
a debt instrument includes accrued OID in gross income (as interest), 
regardless of the holder's regular method of accounting. A holder 
includes qualified stated interest (as defined in Sec.  1.1273-1(c)) in 
income under the holder's regular method of accounting. See Sec. Sec.  
1.446-2 and 1.451-1.
    (2) Debt instruments not subject to OID inclusion rules. Sections 
1272(a)(2) and 1272(c) list exceptions to the general inclusion rule of 
section 1272(a)(1). For purposes of section 1272(a)(2)(E) (relating to 
certain loans between natural persons), a loan does not include a 
stripped bond or stripped coupon within the meaning of section 1286(e), 
and the rule in section 1272(a)(2)(E)(iii), which treats a husband and 
wife as 1 person, does not apply to loans made between a husband and 
wife.
    (b) Accrual of OID--(1) Constant yield method. Except as provided in 
paragraphs (b)(2) and (b)(3) of this section, the amount of OID 
includible in the income of a holder of a debt instrument for any 
taxable year is determined using the constant yield method as described 
under this paragraph (b)(1).
    (i) Step one: Determine the debt instrument's yield to maturity. The 
yield to maturity or yield of a debt instrument is the discount rate 
that, when used in computing the present value of all principal and 
interest payments to be made under the debt instrument, produces an 
amount equal to the issue

[[Page 588]]

price of the debt instrument. The yield must be constant over the term 
of the debt instrument and, when expressed as a percentage, must be 
calculated to at least two decimal places. See paragraph (c) of this 
section for rules relating to the yield of certain debt instruments 
subject to contingencies.
    (ii) Step two: Determine the accrual periods. An accrual period is 
an interval of time over which the accrual of OID is measured. Accrual 
periods may be of any length and may vary in length over the term of the 
debt instrument, provided that each accrual period is no longer than 1 
year and each scheduled payment of principal or interest occurs either 
on the final day of an accrual period or on the first day of an accrual 
period. In general, the computation of OID is simplest if accrual 
periods correspond to the intervals between payment dates provided by 
the terms of the debt instrument. In computing the length of accrual 
periods, any reasonable counting convention may be used (e.g., 30 days 
per month/360 days per year).
    (iii) Step three: Determine the OID allocable to each accrual 
period. Except as provided in paragraph (b)(4) of this section, the OID 
allocable to an accrual period equals the product of the adjusted issue 
price of the debt instrument (as defined in Sec.  1.1275-1(b)) at the 
beginning of the accrual period and the yield of the debt instrument, 
less the amount of any qualified stated interest allocable to the 
accrual period. In performing this calculation, the yield must be stated 
appropriately taking into account the length of the particular accrual 
period. Example 1 in paragraph (j) of this section provides a formula 
for converting a yield based upon an accrual period of one length to an 
equivalent yield based upon an accrual period of a different length.
    (iv) Step four: Determine the daily portions of OID. The daily 
portions of OID are determined by allocating to each day in an accrual 
period the ratable portion of the OID allocable to the accrual period. 
The holder of the debt instrument includes in income the daily portions 
of OID for each day during the taxable year on which the holder held the 
debt instrument.
    (2) Exceptions. Paragraph (b)(1) of this section does not apply to--
    (i) A debt instrument to which section 1272(a)(6) applies (certain 
interests in or mortgages held by a REMIC, and certain other debt 
instruments with payments subject to acceleration);
    (ii) A debt instrument that provides for contingent payments, other 
than a debt instrument described in paragraph (c) or (d) of this section 
or except as provided in Sec.  1.1275-4; or
    (iii) A variable rate debt instrument to which Sec.  1.1275-5 
applies, except as provided in Sec.  1.1275-5.
    (3) Modifications. The amount of OID includible in income by a 
holder under paragraph (b)(1) of this section is adjusted if--
    (i) The holder purchased the debt instrument at a premium or an 
acquisition premium (within the meaning of Sec.  1.1272-2); or
    (ii) The holder made an election for the debt instrument under Sec.  
1.1272-3 to treat all interest as OID.
    (4) Special rules for determining the OID allocable to an accrual 
period. The following rules apply to determine the OID allocable to an 
accrual period under paragraph (b)(1)(iii) of this section.
    (i) Unpaid qualified stated interest allocable to an accrual period. 
In determining the OID allocable to an accrual period, if an interval 
between payments of qualified stated interest contains more than 1 
accrual period--
    (A) The amount of qualified stated interest payable at the end of 
the interval (including any qualified stated interest that is payable on 
the first day of the accrual period immediately following the interval) 
is allocated on a pro rata basis to each accrual period in the interval; 
and
    (B) The adjusted issue price at the beginning of each accrual period 
in the interval must be increased by the amount of any qualified stated 
interest that has accrued prior to the first day of the accrual period 
but that is not payable until the end of the interval. See Example 2 of 
paragraph (j) of this section for an example illustrating the rules in 
this paragraph (b)(4)(i).
    (ii) Final accrual period. The OID allocable to the final accrual 
period is the difference between the amount payable

[[Page 589]]

at maturity (other than a payment of qualified stated interest) and the 
adjusted issue price at the beginning of the final accrual period.
    (iii) Initial short accrual period. If all accrual periods are of 
equal length, except for either an initial shorter accrual period or an 
initial and a final shorter accrual period, the amount of OID allocable 
to the initial accrual period may be computed using any reasonable 
method. See Example 3 in paragraph (j) of this section.
    (iv) Payment on first day of an accrual period. The adjusted issue 
price at the beginning of an accrual period is reduced by the amount of 
any payment (other than a payment of qualified stated interest) that is 
made on the first day of the accrual period.
    (c) Yield and maturity of certain debt instruments subject to 
contingencies--(1) Applicability. This paragraph (c) provides rules to 
determine the yield and maturity of certain debt instruments that 
provide for an alternative payment schedule (or schedules) applicable 
upon the occurrence of a contingency (or contingencies). This paragraph 
(c) applies, however, only if the timing and amounts of the payments 
that comprise each payment schedule are known as of the issue date and 
the debt instrument is subject to paragraph (c)(2), (3), or (5) of this 
section. A debt instrument does not provide for an alternative payment 
schedule merely because there is a possibility of impairment of a 
payment (or payments) by insolvency, default, or similar circumstances. 
See Sec.  1.1275-4 for the treatment of a debt instrument that provides 
for a contingency that is not described in this paragraph (c). See Sec.  
1.1273-1(c) to determine whether stated interest on a debt instrument 
subject to this paragraph (c) is qualified stated interest.
    (2) Payment schedule that is significantly more likely than not to 
occur. If, based on all the facts and circumstances as of the issue 
date, a single payment schedule for a debt instrument, including the 
stated payment schedule, is significantly more likely than not to occur, 
the yield and maturity of the debt instrument are computed based on this 
payment schedule.
    (3) Mandatory sinking fund provision. Notwithstanding paragraph 
(c)(2) of this section, if a debt instrument is subject to a mandatory 
sinking fund provision, the provision is ignored for purposes of 
computing the yield and maturity of the debt instrument if the use and 
terms of the provision meet reasonable commercial standards. For 
purposes of the preceding sentence, a mandatory sinking fund provision 
is a provision that meets the following requirements:
    (i) The provision requires the issuer to redeem a certain amount of 
debt instruments in an issue prior to maturity.
    (ii) The debt instruments actually redeemed are chosen by lot or 
purchased by the issuer either in the open market or pursuant to an 
offer made to all holders (with any proration determined by lot).
    (iii) On the issue date, the specific debt instruments that will be 
redeemed on any date prior to maturity cannot be identified.
    (4) Consistency rule. [Reserved]
    (5) Treatment of certain options. Notwithstanding paragraphs (c) (2) 
and (3) of this section, the rules of this paragraph (c)(5) determine 
the yield and maturity of a debt instrument that provides the holder or 
issuer with an unconditional option or options, exercisable on one or 
more dates during the term of the debt instrument, that, if exercised, 
require payments to be made on the debt instrument under an alternative 
payment schedule or schedules (e.g., an option to extend or an option to 
call a debt instrument at a fixed premium). Under this paragraph (c)(5), 
an issuer is deemed to exercise or not exercise an option or combination 
of options in a manner that minimizes the yield on the debt instrument, 
and a holder is deemed to exercise or not exercise an option or 
combination of options in a manner that maximizes the yield on the debt 
instrument. If both the issuer and the holder have options, the rules of 
this paragraph (c)(5) are applied to the options in the order that they 
may be exercised. See paragraph (j) Example 5 through Example 8 of this 
section.
    (6) Subsequent adjustments. If a contingency described in this 
paragraph

[[Page 590]]

(c) (including the exercise of an option described in paragraph (c)(5) 
of this section) actually occurs or does not occur, contrary to the 
assumption made pursuant to this paragraph (c) (a change in 
circumstances), then, solely for purposes of sections 1272 and 1273, the 
debt instrument is treated as retired and then reissued on the date of 
the change in circumstances for an amount equal to its adjusted issue 
price on that date. See paragraph (j) Example 5 and Example 7 of this 
section. If, however, the change in circumstances results in a 
substantially contemporaneous pro-rata prepayment as defined in Sec.  
1.1275-2(f)(2), the pro-rata prepayment is treated as a payment in 
retirement of a portion of the debt instrument, which may result in gain 
or loss to the holder. See paragraph (j) Example 6 and Example 8 of this 
section.
    (7) Effective date. This paragraph (c) applies to debt instruments 
issued on or after August 13, 1996.
    (d) Certain debt instruments that provide for a fixed yield. If a 
debt instrument provides for one or more contingent payments but all 
possible payment schedules under the terms of the instrument result in 
the same fixed yield, the yield of the debt instrument is the fixed 
yield. For example, the yield of a debt instrument with principal 
payments that are fixed in total amount but that are uncertain as to 
time (such as a demand loan) is the stated interest rate if the issue 
price of the instrument is equal to the stated principal amount and 
interest is paid or compounded at a fixed rate over the entire term of 
the instrument. This paragraph (d) applies to debt instruments issued on 
or after August 13, 1996.
    (e) Convertible debt instruments. For purposes of section 1272, an 
option is ignored if it is an option to convert a debt instrument into 
the stock of the issuer, into the stock or debt of a related party 
(within the meaning of section 267(b) or 707(b)(1)), or into cash or 
other property in an amount equal to the approximate value of such stock 
or debt. For debt instruments issued on or after February 5, 2013, the 
term stock in the preceding sentence means an equity interest in any 
entity that is classified, for Federal tax purposes, as either a 
partnership or a corporation.
    (f) Special rules to determine whether a debt instrument is a short-
term obligation--(1) Counting of either the issue date or maturity date. 
For purposes of determining whether a debt instrument is a short-term 
obligation (i.e., a debt instrument with a fixed maturity date that is 
not more than 1 year from the date of issue), the term of the debt 
instrument includes either the issue date or the maturity date, but not 
both dates.
    (2) Coordination with paragraph (c) of this section for certain 
sections of the Internal Revenue Code. Notwithstanding paragraph (c) of 
this section, solely for purposes of determining whether a debt 
instrument is a short-term obligation under sections 871(g)(1)(B)(i), 
881, 1271(a)(3), 1271(a)(4), 1272(a)(2)(C), and 1283(a)(1), the maturity 
date of a debt instrument is the last possible date that the instrument 
could be outstanding under the terms of the instrument. For purposes of 
the preceding sentence, the last possible date that the debt instrument 
could be outstanding is determined without regard to Sec.  1.1275-2(h) 
(relating to payments subject to remote or incidental contingencies).
    (g) Basis adjustment. The basis of a debt instrument in the hands of 
the holder is increased by the amount of OID included in the holder's 
gross income and decreased by the amount of any payment from the issuer 
to the holder under the debt instrument other than a payment of 
qualified stated interest. See, however, Sec.  1.1275-2(f) for rules 
regarding basis adjustments on a pro rata prepayment.
    (h) Debt instruments denominated in a currency other than the U.S. 
dollar. Section 1272 and this section apply to a debt instrument that 
provides for all payments denominated in, or determined by reference to, 
the functional currency of the taxpayer or qualified business unit of 
the taxpayer (even if that currency is other than the U.S. dollar). See 
Sec.  1.988-2(b) to determine interest income or expense for debt 
instruments that provide for payments denominated in, or determined by 
reference to, a nonfunctional currency.
    (i) [Reserved]

[[Page 591]]

    (j) Examples. The following examples illustrate the rules of this 
section. Each example assumes that all taxpayers use the calendar year 
as the taxable year. In addition, each example assumes a 30-day month, 
360-day year, and that the initial accrual period begins on the issue 
date and the final accrual period ends on the day before the stated 
maturity date. Although, for purposes of simplicity, the yield as stated 
is rounded to two decimal places, the computations do not reflect any 
such rounding convention.

    Example 1. Accrual of OID on zero coupon debt instrument; choice of 
accrual periods. (i) Facts. On July 1, 1994, A purchases at original 
issue, for $675,564.17, a debt instrument that matures on July 1, 1999, 
and provides for a single payment of $1,000,000 at maturity.
    (ii) Determination of yield. Under paragraph (b)(1)(i) of this 
section, the yield of the debt instrument is 8 percent, compounded 
semiannually.
    (iii) Determination of accrual period. Under paragraph (b)(1)(ii) of 
this section, accrual periods may be of any length, provided that each 
accrual period is no longer than 1 year and each scheduled payment of 
principal or interest occurs either on the first or final day of an 
accrual period. The yield to maturity to be used in computing OID 
accruals in any accrual period, however, must reflect the length of the 
accrual period chosen. A yield based on compounding b times per year is 
equivalent to a yield based on compounding c times per year as indicated 
by the following formula:

r = c{(1 + i/b)b/c-1{time} 


In which:

i = The yield based on compounding b times per year expressed as a 
          decimal
r = The equivalent yield based on compounding c times per year expressed 
          as a decimal
b = The number of compounding periods in a year on which i is based (for 
          example, 12, if i is based on monthly compounding)
c = The number of compounding periods in a year on which r is based

    (iv) Determination of OID allocable to each accrual period. Assume 
that A decides to compute OID on the debt instrument using semiannual 
accrual periods. Under paragraph (b)(1)(iii) of this section, the OID 
allocable to the first semiannual accrual period is $27,022.56: the 
product of the issue price ($675,564.17) and the yield properly adjusted 
for the length of the accrual period (8 percent/2), less qualified 
stated interest allocable to the accrual period ($0). The daily portion 
of OID for the first semiannual accrual period is $150.13 ($27,022.56/
180).
    (v) Determination of OID if monthly accrual periods are used. 
Alternatively, assume that A decides to compute OID on the debt 
instrument using monthly accrual periods. Using the above formula, the 
yield on the debt instrument reflecting monthly compounding is 7.87 
percent, compounded monthly (12{(1 + .08/2)\2/12\-1{time} ). Under 
paragraph (b)(1)(iii) of this section, the OID allocable to the first 
monthly accrual period is $4,430.48: the product of the issue price 
($675,564.17) and the yield properly adjusted for the length of the 
accrual period (7.87 percent/12), less qualified stated interest 
allocable to the accrual period ($0). The daily portion of OID for the 
first monthly accrual period is $147.68 ($4,430.48/30).
    Example 2. Accrual of OID on debt instrument with qualified stated 
interest. (i) Facts. On September 1, 1994, A purchases at original 
issue, for $90,000, B corporation's debt instrument that matures on 
September 1, 2004, and has a stated principal amount of $100,000, 
payable on that date. The debt instrument provides for semiannual 
payments of interest of $3,000, payable on September 1 and March 1 of 
each year, beginning on March 1, 1995.
    (ii) Determination of yield. The debt instrument is a 10-year debt 
instrument with an issue price of $90,000 and a stated redemption price 
at maturity of $100,000. The semiannual payments of $3,000 are qualified 
stated interest payments. Under paragraph (b)(1)(i) of this section, the 
yield is 7.44 percent, compounded semiannually.
    (iii) Accrual of OID if semiannual accrual periods are used. Assume 
that A decides to compute OID on the debt instrument using semiannual 
accrual periods. Under paragraph (b)(1)(iii) of this section, the OID 
allocable to the first semiannual accrual period equals the product of 
the issue price ($90,000) and the yield properly adjusted for the length 
of the accrual period (7.44 percent/2), less qualified stated interest 
allocable to the accrual period ($3,000). Therefore, the amount of OID 
for the first semiannual accrual period is $345.78 ($3,345.78-$3,000).
    (iv) Adjustment for accrued but unpaid qualified stated interest if 
monthly accrual periods are used. Assume, alternatively, that A decides 
to compute OID on the debt instrument using monthly accrual periods. The 
yield, compounded monthly, is 7.32 percent. Under paragraph (b)(1)(iii) 
of this section, the OID allocable to the first monthly accrual period 
is the product of the issue price ($90,000) and the yield properly 
adjusted for the length of the accrual period (7.32 percent/12), less 
qualified stated interest allocable to the accrual period. Under 
paragraph (b)(4)(i)(A) of this section, the qualified stated interest 
allocable to the first monthly accrual period is the pro rata amount of 
qualified stated interest allocable to the interval between payment 
dates ($3,000 x \1/6\, or $500). Therefore,

[[Page 592]]

the amount of OID for the first monthly accrual period is $49.18 
($549.18-$500). Under paragraph (b)(4)(i)(B) of this section, the 
adjusted issue price of the debt instrument for purposes of determining 
the amount of OID for the second monthly accrual period is $90,549.18 
($90,000 + $49.18 + $500). Although the adjusted issue price of the debt 
instrument for this purpose includes the amount of qualified stated 
interest allocable to the first monthly accrual period, A includes the 
qualified stated interest in income based on A's regular method of 
accounting (e.g., an accrual method or the cash receipts and 
disbursements method).
    Example 3. Accrual of OID for debt instrument with initial short 
accrual period. (i) Facts. On May 1, 1994, G purchases at original 
issue, for $80,000, H corporation's debt instrument maturing on July 1, 
2004. The debt instrument provides for a single payment at maturity of 
$250,000. G computes its OID using 6-month accrual periods ending on 
January 1 and July 1 of each year and an initial short 2-month accrual 
period from May 1, 1994, through June 30, 1994.
    (ii) Determination of yield. The yield on the debt instrument is 
11.53 percent, compounded semiannually.
    (iii) Determination of OID allocable to initial short accrual 
period. Under paragraph (b)(4)(iii) of this section, G may use any 
reasonable method to compute OID for the initial short accrual period. 
One reasonable method is to calculate the amount of OID pursuant to the 
following formula:

OIDshort = IP x (i/k) x f


In which:

OIDshort = The amount of OID allocable to the initial short 
          accrual period
IP = The issue price of the debt instrument
i = The yield to maturity expressed as a decimal
k = The number of accrual periods in a year
f = A fraction whose numerator is the number of days in the initial 
          short accrual period, and whose denominator is the number of 
          days in a full accrual period

    (iv) Amount of OID for the initial short accrual period. Under this 
method, the amount of OID for the initial short accrual period is $1,537 
($80,000 x (11.53 percent/2) x (60/180)).
    (v) Alternative method. Another reasonable method is to calculate 
the amount of OID for the initial short accrual period using the yield 
based on bi-monthly compounding, computed pursuant to the formula set 
forth in Example 1 of paragraph (j) of this section. Under this method, 
the amount of OID for the initial short accrual period is $1,508.38 
($80,000 x (11.31 percent/6)).
    Example 4. Impermissible accrual of OID using a method other than 
constant yield method. (i) Facts. On July 1, 1994, B purchases at 
original issue, for $100,000, C corporation's debt instrument that 
matures on July 1, 1999, and has a stated principal amount of $100,000. 
The debt instrument provides for a single payment at maturity of 
$148,024.43. The yield of the debt instrument is 8 percent, compounded 
semiannually.
    (ii) Determination of yield. Assume that C uses 6 monthly accrual 
periods to compute its OID for 1994. The yield must reflect monthly 
compounding (as determined using the formula described in Example 1 of 
paragraph (j) of this section). As a result, the monthly yield of the 
debt instrument is 7.87 percent, divided by 12. C may not compute its 
monthly yield for the last 6 months in 1994 by dividing 8 percent by 12.
    Example 5. Debt instrument subject to put option. (i) Facts. On 
January 1, 1995, G purchases at original issue, for $70,000, H 
corporation's debt instrument maturing on January 1, 2010, with a stated 
principal amount of $100,000, payable at maturity. The debt instrument 
provides for semiannual payments of interest of $4,000, payable on 
January 1 and July 1 of each year, beginning on July 1, 1995. The debt 
instrument gives G an unconditional right to put the bond back to H, 
exercisable on January 1, 2005, in return for $85,000 (exclusive of the 
$4,000 of stated interest payable on that date).
    (ii) Determination of yield and maturity. Yield determined without 
regard to the put option is 12.47 percent, compounded semiannually. 
Yield determined by assuming that the put option is exercised (i.e., by 
using January 1, 2005, as the maturity date and $85,000 as the stated 
principal amount payable on that date) is 12.56 percent, compounded 
semiannually. Thus, under paragraph (c)(5) of this section, it is 
assumed that G will exercise the put option, because exercise of the 
option would increase the yield of the debt instrument. Thus, for 
purposes of calculating OID, the debt instrument is assumed to be a 10-
year debt instrument with an issue price of $70,000, a stated redemption 
price at maturity of $85,000, and a yield of 12.56 percent, compounded 
semiannually.
    (iii) Consequences if put option is, in fact, not exercised. If the 
put option is, in fact, not exercised, then, under paragraph (c)(6) of 
this section, the debt instrument is treated, solely for purposes of 
sections 1272 and 1273, as if it were reissued on January 1, 2005, for 
an amount equal to its adjusted issue price on that date, $85,000. The 
new debt instrument matures on January 1, 2010, with a stated principal 
amount of $100,000 payable on that date and provides for semiannual 
payments of interest of $4,000. The yield of the new debt instrument is 
12.08 percent, compounded semiannually.
    Example 6. Debt instrument subject to partial call option. (i) 
Facts. On January 1, 1995, H purchases at original issue, for $95,000, J 
corporation's debt instrument that matures on

[[Page 593]]

January 1, 2000, and has a stated principal amount of $100,000, payable 
on that date. The debt instrument provides for semiannual payments of 
interest of $4,000, payable on January 1 and July 1 of each year, 
beginning on July 1, 1995. On January 1, 1998, J has an unconditional 
right to call 50 percent of the principal amount of the debt instrument 
for $55,000 (exclusive of the $4,000 of stated interest payable on that 
date). If the call is exercised, the semiannual payments of interest 
made after the call date will be reduced to $2,000.
    (ii) Determination of yield and maturity. Yield determined without 
regard to the call option is 9.27 percent, compounded semiannually. 
Yield determined by assuming J exercises its call option is 10.75 
percent, compounded semiannually. Thus, under paragraph (c)(5) of this 
section, it is assumed that J will not exercise the call option because 
exercise of the option would increase the yield of the debt instrument. 
Thus, for purposes of calculating OID, the debt instrument is assumed to 
be a 5-year debt instrument with a single principal payment at maturity 
of $100,000, and a yield of 9.27 percent, compounded semiannually.
    (iii) Consequences if the call option is, in fact, exercised. If the 
call option is, in fact, exercised, then under paragraph (c)(6) of this 
section, the debt instrument is treated as if the issuer made a pro rata 
prepayment of $55,000 that is subject to Sec.  1.1275-2(f). 
Consequently, under Sec.  1.1275-2(f)(1), the instrument is treated as 
consisting of two debt instruments, one that is retired on the call date 
and one that remains outstanding after the call date. The adjusted issue 
price, adjusted basis in the hands of the holder, and accrued OID of the 
original debt instrument is allocated between the two instruments based 
on the portion of the original instrument treated as retired. Since each 
payment remaining to be made after the call date is reduced by one-half, 
one-half of the adjusted issue price, adjusted basis, and accrued OID is 
allocated to the debt instrument that is treated as retired. The 
adjusted issue price of the original debt instrument immediately prior 
to the call date is $97,725.12, which equals the issue price of the 
original debt instrument ($95,000) increased by the OID previously 
includible in gross income ($2,725.12). One-half of this adjusted issue 
price is allocated to the debt instrument treated as retired, and the 
other half is allocated to the debt instrument that is treated as 
remaining outstanding. Thus, the debt instrument treated as remaining 
outstanding has an adjusted issue price immediately after the call date 
of $97,725.12/2, or $48,862.56. The yield of this debt instrument 
continues to be 9.27 percent, compounded semiannually. In addition, the 
portion of H's adjusted basis allocated to the debt instrument treated 
as retired is $97,725.12/2 or $48,862.56. Accordingly, under section 
1271, H realizes a gain on the deemed retirement equal to $6,137.44 
($55,000 - $48,862.56).
    Example 7. Debt instrument issued at par that provides for payment 
of interest in kind. (i) Facts. On January 1, 1995, A purchases at 
original issue, for $100,000, X corporation's debt instrument maturing 
on January 1, 2000, at a stated principal amount of $100,000, payable on 
that date. The debt instrument provides for annual payments of interest 
of $6,000 on January 1 of each year, beginning on January 1, 1996. The 
debt instrument gives X the unconditional right to issue, in lieu of the 
first interest payment, a second debt instrument (PIK instrument) 
maturing on January 1, 2000, with a stated principal amount of $6,000. 
The PIK instrument, if issued, would provide for annual payments of 
interest of $360 on January 1 of each year, beginning on January 1, 
1997.
    (ii) Aggregation of PIK instrument with original debt instrument. 
Under Sec.  1.1275-2(c)(3), the issuance of the PIK instrument is not 
considered a payment made on the original debt instrument, and the PIK 
instrument is aggregated with the original debt instrument. The issue 
date of the PIK instrument is the same as the original debt instrument.
    (iii) Determination of yield and maturity. The right to issue the 
PIK instrument is treated as an option to defer the initial interest 
payment until maturity. Yield determined without regard to the option is 
6 percent, compounded annually, Yield determined by assuming X exercises 
the option is 6 percent, compounded annually. Thus, under paragraph 
(c)(5) of this section, it is assumed that X will not exercise the 
option by issuing the PIK instrument because exercise of the option 
would not decrease the yield of the debt instrument. For purposes of 
calculating OID, the debt instrument is assumed to be a 5-year debt 
instrument with a single principal payment at maturity of $100,000 and 
ten semiannual interest payments of $6,000, beginning on January 1, 
1996. As a result, the debt instrument's yield is 6 percent, compounded 
annually.
    (iv) Determination of OID. Under the payment schedule that would 
result if the option was exercised, none of the interest on the debt 
instrument would be qualified stated interest. Accordingly, under Sec.  
1.1273-1(c)(2), no payments on the debt instrument are qualified stated 
interest payments. Thus, $6,000 of OID accrues during the first annual 
accrual period. If the PIK instrument is not issued, $6,000 of OID 
accrues during each annual accrual period.
    (v) Consequences if the PIK instrument is issued. Under paragraph 
(c)(6) of this section, if X issues the PIK instrument on January 1, 
1996, the issuance of the PIK instrument is not a payment on the debt 
instrument. Solely for purposes of sections 1272 and 1273, the

[[Page 594]]

debt instrument is deemed reissued on January 1, 1996, for an issue 
price of $106,000. The recomputed yield is 6 percent, compounded 
annually. The OID for the first annual accrual period after the deemed 
reissuance is $6,360. The adjusted issue price of the debt instrument at 
the beginning of the next annual accrual period is $106,000 ($106,000 + 
$6,360 - $6,360). The OID for each of the four remaining annual accrual 
periods is $6,360.
    Example 8. Debt instrument issued at a discount that provides for 
payment of interest in kind. (i) Facts. On January 1, 1995, T purchases 
at original issue, for $75,500, U corporation's debt instrument maturing 
on January 1, 2000, at a stated principal amount of $100,000, payable on 
that date. The debt instrument provides for annual payments of interest 
of $4,000 on January 1 of each year, beginning on January 1, 1996. The 
debt instrument gives U the unconditional right to issue, in lieu of the 
first interest payment, a second debt instrument (PIK instrument) 
maturing on January 1, 2000, with a stated principal amount of $4,000. 
The PIK instrument, if issued, would provide for annual payments of 
interest of $160 on January 1 of each year, beginning on January 1, 
1997.
    (ii) Aggregation of PIK instrument with original debt instrument. 
Under Sec.  1.1275-2(c)(3), the issuance of the PIK instrument is not 
considered a payment made on the original debt instrument, and the PIK 
instrument is aggregated with the original debt instrument. The issue 
date of the PIK instrument is the same as the original debt instrument.
    (iii) Determination of yield and maturity. The right to issue the 
PIK instrument is treated as an option to defer the initial interest 
payment until maturity. Yield determined without regard to the option is 
10.55 percent, compounded annually. Yield determined by assuming U 
exercises the option is 10.32 percent, compounded annually. Thus, under 
paragraph (c)(5) of this section, it is assumed that U will exercise the 
option by issuing the PIK instrument because exercise of the option 
would decrease the yield of the debt instrument. For purposes of 
calculating OID, the debt instrument is assumed to be a 5-year debt 
instrument with a single principal payment at maturity of $104,000 and 
four annual interest payments of $4,160, beginning on January 1, 1997. 
As a result, the yield is 10.32 percent, compounded annually.
    (iv) Consequences if the PIK instrument is not issued. Assume that T 
chooses to compute OID accruals on the basis of an annual accrual 
period. On January 1, 1996, the adjusted issue price of the debt 
instrument, and T's adjusted basis in the instrument, is $83,295.15. 
Under paragraph (c)(6) of this section, if U actually makes the $4,000 
interest payment on January 1, 1996, the debt instrument is treated as 
if U made a pro rata prepayment (within the meaning of Sec.  1.1275-
2(f)(2)) of $4,000, which reduces the amount of each payment remaining 
on the instrument by a factor of 4/104, or 1/26. Thus, under Sec.  
1.1275-2(f)(1) and section 1271, T realizes a gain of $796.34 ($4,000 -
($83,295.15/26)). The adjusted issue price of the debt instrument and 
T's adjusted basis immediately after the payment is $80,091.49 
($83,295.15 x 25/26) and the yield continues to be 10.32 percent, 
compounded annually.
    Example 9. Debt instrument with stepped interest rate. (i) Facts. On 
July 1, 1994, G purchases at original issue, for $85,000, H 
corporation's debt instrument maturing on July 1, 2004. The debt 
instrument has a stated principal amount of $100,000, payable on the 
maturity date and provides for semiannual interest payments on January 1 
and July 1 of each year, beginning on January 1, 1995. The amount of 
each payment is $2,000 for the first 5 years and $5,000 for the final 5 
years.
    (ii) Determination of OID. Assume that G computes its OID using 6-
month accrual periods ending on January 1 and July 1 of each year. The 
yield of the debt instrument, determined under paragraph (b)(1)(i) of 
this section, is 8.65 percent, compounded semiannually. Interest is 
unconditionally payable at a fixed rate of at least 4 percent, 
compounded semiannually, for the entire term of the debt instrument. 
Consequently, under Sec.  1.1273-1(c)(1), the semiannual payments are 
qualified stated interest payments to the extent of $2,000. The amount 
of OID for the first 6-month accrual period is $1,674.34 (the issue 
price of the debt instrument ($85,000) times the yield of the debt 
instrument for that accrual period (.0865/2) less the amount of any 
qualified stated interest allocable to that accrual period ($2,000)).
    Example 10. Debt instrument payable on demand that provides for 
interest at a constant rate. (i) Facts. On January 1, 1995, V purchases 
at original issue, for $100,000, W corporation's debt instrument. The 
debt instrument calls for interest to accrue at a rate of 9 percent, 
compounded annually. The debt instrument is redeemable at any time at 
the option of V for an amount equal to $100,000, plus accrued interest. 
V uses annual accrual periods to accrue OID on the debt instrument.
    (ii) Amount of OID. Pursuant to paragraph (d) of this section, the 
yield of the debt instrument is 9 percent, compounded annually. If the 
debt instrument is not redeemed during 1995, the amount of OID allocable 
to the year is $9,000.

[T.D. 8517, 59 FR 4810, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30140, June 14, 1996; T.D. 9612, 78 FR 8015, Feb. 5, 2013]



Sec.  1.1272-2  Treatment of debt instruments purchased at a premium.

    (a) In general. Under section 1272(c)(1), if a holder purchases a 
debt instrument at a premium, the holder

[[Page 595]]

does not include any OID in gross income. Under section 1272(a)(7), if a 
holder purchases a debt instrument at an acquisition premium, the holder 
reduces the amount of OID includible in gross income by the fraction 
determined under paragraph (b)(4) of this section.
    (b) Definitions and special rules--(1) Purchase. For purposes of 
section 1272 and this section, purchase means any acquisition of a debt 
instrument, including the acquisition of a newly issued debt instrument 
in a debt-for-debt exchange or the acquisition of a debt instrument from 
a donor.
    (2) Premium. A debt instrument is purchased at a premium if its 
adjusted basis, immediately after its purchase by the holder (including 
a purchase at original issue), exceeds the sum of all amounts payable on 
the instrument after the purchase date other than payments of qualified 
stated interest (as defined in Sec.  1.1273-1(c)).
    (3) Acquisition premium. A debt instrument is purchased at an 
acquisition premium if its adjusted basis, immediately after its 
purchase (including a purchase at original issue), is--
    (i) Less than or equal to the sum of all amounts payable on the 
instrument after the purchase date other than payments of qualified 
stated interest (as defined in Sec.  1.1273-1(c)); and
    (ii) Greater than the instrument's adjusted issue price (as defined 
in Sec.  1.1275-1(b)).
    (4) Acquisition premium fraction. In applying section 1272(a)(7), 
the cost of a debt instrument is its adjusted basis immediately after 
its acquisition by the purchaser. Thus, the numerator of the fraction 
determined under section 1272(a)(7)(B) is the excess of the adjusted 
basis of the debt instrument immediately after its acquisition by the 
purchaser over the adjusted issue price of the debt instrument. The 
denominator of the fraction determined under section 1272(a)(7)(B) is 
the excess of the sum of all amounts payable on the debt instrument 
after the purchase date, other than payments of qualified stated 
interest, over the instrument's adjusted issue price.
    (5) Election to accrue discount on a constant yield basis. Rather 
than applying the acquisition premium fraction, a holder of a debt 
instrument purchased at an acquisition premium may elect under Sec.  
1.1272-3 to compute OID accruals by treating the purchase as a purchase 
at original issuance and applying the mechanics of the constant yield 
method.
    (6) Special rules for determining basis--(i) Debt instruments 
acquired in exchange for other property. For purposes of section 
1272(a)(7), section 1272(c)(1), and this section, if a debt instrument 
is acquired in an exchange for other property (other than in a 
reorganization defined in section 368) and the basis of the debt 
instrument is determined, in whole or in part, by reference to the basis 
of the other property, the basis of the debt instrument may not exceed 
its fair market value immediately after the exchange. For example, if a 
debt instrument is distributed by a partnership to a partner in a 
liquidating distribution and the partner's basis in the debt instrument 
would otherwise be determined under section 732, the partner's basis in 
the debt instrument may not exceed its fair market value for purposes of 
this section.
    (ii) Acquisition by gift. For purposes of this section, a donee's 
adjusted basis in a debt instrument is the donee's basis for determining 
gain under section 1015(a).
    (c) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Debt instrument purchased at an acquisition premium. (i) 
Facts. On July 1, 1994, A purchased at original issue, for $500, a debt 
instrument issued by Corporation X. The debt instrument matures on July 
1, 1999, and calls for a single payment at maturity of $1,000. Under 
section 1273(a), the debt instrument has a stated redemption price at 
maturity of $1,000 and, thus, OID of $500. On July 1, 1996, when the 
debt instrument's adjusted issue price is $659.75, A sells the debt 
instrument to B for $750 in cash.
    (ii) Acquisition premium fraction. Because the cost to B of the debt 
instrument is less than the amount payable on the debt instrument after 
the purchase date, but is greater than the debt instrument's adjusted 
issue price, B has paid an acquisition premium for the debt instrument. 
Accordingly, the daily portion of OID for any day that B holds the debt 
instrument is reduced by a fraction, the numerator of which is $90.25 
(the excess of the cost of the debt instrument over its adjusted issue 
price) and the denominator of which is $340.25 (the excess of the sum of 
all

[[Page 596]]

payments after the purchase date over its adjusted issue price).
    Example 2. Debt-for-debt exchange where holder is considered to 
purchase new debt instrument at a premium. (i) Facts. On January 1, 
1995, H purchases at original issue, for $1,000, a debt instrument 
issued by Corporation X. On July 1, 1997, when H's adjusted basis in the 
debt instrument is $1,000, Corporation X issues a new debt instrument 
with a stated redemption price at maturity of $750 to H in exchange for 
the old debt instrument. Assume that the issue price of the new debt 
instrument is $600. Thus, under section 1273(a), the debt instrument has 
OID of $150. The exchange qualifies as a recapitalization under section 
368(a)(1)(E), with the consequence that, under sections 354 and 358, H 
recognizes no loss on the exchange and has an adjusted basis in the new 
debt instrument of $1,000.
    (ii) Application of section 1272(c)(1). Under paragraphs (b)(1) and 
(b)(2) of this section, H purchases the new debt instrument at a premium 
of $250. Accordingly, under section 1272(c)(1), H is not required to 
include OID in income with respect to the new debt instrument.
    Example 3. Debt-for-debt exchange where holder is considered to 
purchase new debt instrument at an acquisition premium. (i) Facts. The 
facts are the same as in Example 2 of paragraph (c) of this section, 
except that H purchases the old debt instrument from another holder on 
July 1, 1995, and on July 1, 1997, H's adjusted basis in the old debt 
instrument is $700. Under section 1273(a), the new debt instrument is 
issued with OID of $150.
    (ii) Application of section 1272(a)(7). Under paragraphs (b)(1) and 
(b)(3) of this section, H purchases the new debt instrument at an 
acquisition premium of $100. Accordingly, the daily portion of OID that 
is includible in H's income is reduced by the fraction determined under 
section 1272(a)(7).
    Example 4. Treatment of acquisition premium for debt instrument 
acquired by gift. (i) Facts. On July 1, 1994, D receives as a gift a 
debt instrument with a stated redemption price at maturity of $1,000 and 
an adjusted issue price of $800. On that date, the fair market value of 
the debt instrument is $900 and the donor's adjusted basis in the debt 
instrument is $950.
    (ii) Application of section 1272(a)(7). Under paragraphs (b)(1), 
(b)(3), and (b)(6)(ii) of this section, D is considered to have 
purchased the debt instrument at an acquisition premium of $150. 
Accordingly, the daily portion of OID that is includible in D's income 
is reduced by the fraction determined under section 1272(a)(7).

[T.D. 8517, 59 FR 4814, Feb. 2, 1994]



Sec.  1.1272-3  Election by a holder to treat all interest 
on a debt instrument as OID.

    (a) Election. A holder of a debt instrument may elect to include in 
gross income all interest that accrues on the instrument by using the 
constant yield method described in paragraph (c) of this section. For 
purposes of this election, interest includes stated interest, 
acquisition discount, OID, de minimis OID, market discount, de minimis 
market discount, and unstated interest, as adjusted by any amortizable 
bond premium or acquisition premium.
    (b) Scope of election--(1) In general. Except as provided in 
paragraph (b)(2) of this section, a holder may make the election for any 
debt instrument.
    (2) Exceptions, limitations, and special rules--(i) Debt instrument 
with amortizable bond premium (as determined under section 171). (A) A 
holder may make the election for a debt instrument with amortizable bond 
premium only if the instrument qualifies as a bond under section 171(d).
    (B) If a holder makes the election under this section for a debt 
instrument with amortizable bond premium, the holder is deemed to have 
made the election under section 171(c)(2) for the taxable year in which 
the instrument was acquired. If the holder has previously made the 
election under section 171(c)(2), the requirements of that election with 
respect to any debt instrument are satisfied by electing to amortize the 
bond premium under the rules provided by this section.
    (ii) Debt instrument with market discount. (A) A holder may make the 
election under this section for a debt instrument with market discount 
only if the holder is eligible to make an election under section 
1278(b).
    (B) If a holder makes the election under this section for a debt 
instrument with market discount, the holder is deemed to have made both 
the election under section 1276(b)(2) for that instrument and the 
election under section 1278(b) for the taxable year in which the 
instrument was acquired. If the holder has previously made the election 
under section 1278(b), the requirements of that election with respect to 
any debt instrument are satisfied by electing to include the market

[[Page 597]]

discount in income in accordance with the rules provided by this 
section.
    (iii) Tax-exempt debt instrument. A holder may not make the election 
for a tax-exempt obligation as defined in section 1275(a)(3).
    (c) Mechanics of the constant yield method--(1) In general. For 
purposes of this section, the amount of interest that accrues during an 
accrual period is determined under rules similar to those under section 
1272 (the constant yield method). In applying the constant yield method, 
however, a debt instrument subject to the election is treated as if--
    (i) The instrument is issued for the holder's adjusted basis 
immediately after its acquisition by the holder;
    (ii) The instrument is issued on the holder's acquisition date; and
    (iii) None of the interest payments provided for in the instrument 
are qualified stated interest payments.
    (2) Special rules to determine adjusted basis. For purposes of 
paragraph (c)(1)(i) of this section--
    (i) If the debt instrument is acquired in an exchange for other 
property (other than in a reorganization defined in section 368) and the 
basis of the debt instrument is determined, in whole or in part, by 
reference to the basis of the other property, the adjusted basis of the 
debt instrument may not exceed its fair market value immediately after 
the exchange; and
    (ii) If the debt instrument was acquired with amortizable bond 
premium (as determined under section 171), the adjusted basis of the 
debt instrument is reduced by an amount equal to the value attributable 
to any conversion feature.
    (d) Time and manner of making the election. The election must be 
made for the taxable year in which the holder acquires the debt 
instrument. A holder makes the election by attaching to the holder's 
timely filed Federal income tax return a statement that the holder is 
making an election under this section and that identifies the debt 
instruments subject to the election. A holder may make the election for 
a class or group of debt instruments by attaching a statement describing 
the type or types of debt instruments being designated for the election.
    (e) Revocation of election. The election may not be revoked unless 
approved by the Commissioner.
    (f) Effective date. This section applies to debt instruments 
acquired on or after April 4, 1994.

[T.D. 8517, 59 FR 4815, Feb. 2, 1994]



Sec.  1.1273-1  Definition of OID.

    (a) In general. Section 1273(a)(1) defines OID as the excess of a 
debt instrument's stated redemption price at maturity over its issue 
price. Section 1.1273-2 defines issue price, and paragraph (b) of this 
section defines stated redemption price at maturity. Paragraph (d) of 
this section provides rules for de minimis amounts of OID. Although the 
total amount of OID for a debt instrument may be indeterminate, Sec.  
1.1272-1(d) provides a rule to determine OID accruals on certain debt 
instruments that provide for a fixed yield. See Example 10 in Sec.  
1.1272-1(j).
    (b) Stated redemption price at maturity. A debt instrument's stated 
redemption price at maturity is the sum of all payments provided by the 
debt instrument other than qualified stated interest payments. If the 
payment schedule of a debt instrument is determined under Sec.  1.1272-
1(c) (relating to certain debt instruments subject to contingencies), 
that payment schedule is used to determine the instrument's stated 
redemption price at maturity.
    (c) Qualified stated interest--(1) Definition--(i) In general. 
Qualified stated interest is stated interest that is unconditionally 
payable in cash or in property (other than debt instruments of the 
issuer), or that will be constructively received under section 451, at 
least annually at a single fixed rate (within the meaning of paragraph 
(c)(1)(iii) of this section).
    (ii) Unconditionally payable. Interest is unconditionally payable 
only if reasonable legal remedies exist to compel timely payment or the 
debt instrument otherwise provides terms and conditions that make the 
likelihood of late payment (other than a late payment that occurs within 
a reasonable grace period) or nonpayment a remote contingency (within 
the meaning of Sec.  1.1275-2(h)). For purposes of the preceding 
sentence, remedies or other terms and conditions are not taken

[[Page 598]]

into account if the lending transaction does not reflect arm's length 
dealing and the holder does not intend to enforce the remedies or other 
terms and conditions. For purposes of determining whether interest is 
unconditionally payable, the possibility of nonpayment due to default, 
insolvency, or similar circumstances, or due to the exercise of a 
conversion option described in Sec.  1.1272-1(e) is ignored. This 
paragraph (c)(1)(ii) applies to debt instruments issued on or after 
August 13, 1996.
    (iii) Single fixed rate--(A) In general. Interest is payable at a 
single fixed rate only if the rate appropriately takes into account the 
length of the interval between payments. Thus, if the interval between 
payments varies during the term of the debt instrument, the value of the 
fixed rate on which a payment is based generally must be adjusted to 
reflect a compounding assumption that is consistent with the length of 
the interval preceding the payment. See Example 1 in paragraph (f) of 
this section.
    (B) Special rule for certain first and final payment intervals. 
Notwithstanding paragraph (c)(1)(iii)(A) of this section, if a debt 
instrument provides for payment intervals that are equal in length 
throughout the term of the instrument, except that the first or final 
payment interval differs in length from the other payment intervals, the 
first or final interest payment is considered to be made at a fixed rate 
if the value of the rate on which the payment is based is adjusted in 
any reasonable manner to take into account the length of the interval. 
See Example 2 of paragraph (f) of this section. The rule in this 
paragraph (c)(1)(iii)(B) also applies if the lengths of both the first 
and final payment intervals differ from the length of the other payment 
intervals.
    (2) Debt instruments subject to contingencies. The determination of 
whether a debt instrument described in Sec.  1.1272-1(c) (a debt 
instrument providing for an alternative payment schedule (or schedules) 
upon the occurrence of one or more contingencies) provides for qualified 
stated interest is made by analyzing each alternative payment schedule 
(including the stated payment schedule) as if it were the debt 
instrument's sole payment schedule. Under this analysis, the debt 
instrument provides for qualified stated interest to the extent of the 
lowest fixed rate at which qualified stated interest would be payable 
under any payment schedule. See Example (4) of paragraph (f) of this 
section.
    (3) Variable rate debt instrument. In the case of a variable rate 
debt instrument, qualified stated interest is determined under Sec.  
1.1275-5(e).
    (4) Stated interest in excess of qualified stated interest. To the 
extent that stated interest payable under a debt instrument exceeds 
qualified stated interest, the excess is included in the debt 
instrument's stated redemption price at maturity.
    (5) Short-term obligations. In the case of a debt instrument with a 
term that is not more than 1 year from the date of issue, no payments of 
interest are treated as qualified stated interest payments.
    (6) Business day convention--(i) Rule. For purposes of this 
paragraph (c), if a scheduled payment date for stated interest falls on 
a Saturday, Sunday, or Federal holiday (within the meaning of 5 U.S.C. 
6103) but, under the terms of the debt instrument, the stated interest 
is payable on the first business day that immediately follows the 
scheduled payment date, the stated interest is treated as payable on the 
scheduled payment date, provided no additional interest is payable as a 
result of the deferral.
    (ii) Effective/applicability date. Paragraph (c)(6)(i) of this 
section applies to a debt instrument issued on or after September 13, 
2012. A taxpayer, however, may rely on paragraph (c)(6)(i) of this 
section for a debt instrument issued before that date.
    (d) De minimis OID--(1) In general. If the amount of OID with 
respect to a debt instrument is less than the de minimis amount, the 
amount of OID is treated as zero, and all stated interest (including 
stated interest that would otherwise be characterized as OID) is treated 
as qualified stated interest.
    (2) De minimis amount. The de minimis amount is an amount equal to 
0.0025 multiplied by the product of the stated redemption price at 
maturity

[[Page 599]]

and the number of complete years to maturity from the issue date.
    (3) Installment obligations. In the case of an installment 
obligation (as defined in paragraph (e)(1) of this section), paragraph 
(d)(2) of this section is applied by substituting for the number of 
complete years to maturity the weighted average maturity (as defined in 
paragraph (e)(3) of this section). Alternatively, in the case of a debt 
instrument that provides for payments of principal no more rapidly than 
a self-amortizing installment obligation (as defined in paragraph (e)(2) 
of this section), the de minimis amount defined in paragraph (d)(2) of 
this section may be calculated by substituting 0.00167 for 0.0025.
    (4) Special rule for interest holidays, teaser rates, and other 
interest shortfalls--(i) In general. This paragraph (d)(4) provides a 
special rule to determine whether a debt instrument with a teaser rate 
(or rates), an interest holiday, or any other interest shortfall has de 
minimis OID. This rule applies if--
    (A) The amount of OID on the debt instrument is more than the de 
minimis amount as otherwise determined under paragraph (d) of this 
section; and
    (B) All stated interest provided for in the debt instrument would be 
qualified stated interest under paragraph (c) of this section except 
that for 1 or more accrual periods the interest rate is below the rate 
applicable for the remainder of the instrument's term (e.g., if as a 
result of an interest holiday, none of the stated interest is qualified 
stated interest).
    (ii) Redetermination of OID for purposes of the de minimis test. For 
purposes of determining whether a debt instrument described in paragraph 
(d)(4)(i) of this section has de minimis OID, the instrument's stated 
redemption price at maturity is treated as equal to the instrument's 
issue price plus the greater of the amount of foregone interest or the 
excess (if any) of the instrument's stated principal amount over its 
issue price. The amount of foregone interest is the amount of additional 
stated interest that would be required to be payable on the debt 
instrument during the period of the teaser rate, holiday, or shortfall 
so that all stated interest would be qualified stated interest under 
paragraph (c) of this section. See Example 5 and Example 6 of paragraph 
(f) of this section. In addition, for purposes of computing the de 
minimis amount of OID, the weighted average maturity of the debt 
instrument is determined by treating all stated interest payments as 
qualified stated interest payments.
    (5) Treatment of de minimis OID by holders--(i) Allocation of de 
minimis OID to principal payments. The holder of a debt instrument 
includes any de minimis OID (other than de minimis OID treated as 
qualified stated interest under paragraph (d)(1) of this section, such 
as de minimis OID attributable to a teaser rate or interest holiday) in 
income as stated principal payments are made. The amount includible in 
income with respect to each principal payment equals the product of the 
total amount of de minimis OID on the debt instrument and a fraction, 
the numerator of which is the amount of the principal payment made and 
the denominator of which is the stated principal amount of the 
instrument.
    (ii) Character of de minimis OID--(A) De minimis OID treated as gain 
recognized on retirement. Any amount of de minimis OID includible in 
income under this paragraph (d)(5) is treated as gain recognized on 
retirement of the debt instrument. See section 1271 to determine whether 
a retirement is treated as an exchange of the debt instrument.
    (B) Treatment of de minimis OID on sale or exchange. Any gain 
attributable to de minimis OID that is recognized on the sale or 
exchange of a debt instrument is capital gain if the debt instrument is 
a capital asset in the hands of the seller.
    (iii) Treatment of subsequent holders. If a subsequent holder 
purchases a debt instrument issued with de minimis OID at a premium (as 
defined in Sec.  1.1272-2(b)(2)), the subsequent holder does not include 
the de minimis OID in income. Otherwise, a subsequent holder includes 
any discount in income under the market discount rules (sections 1276 
through 1278) rather than under the rules of this paragraph (d)(5).
    (iv) Cross-reference. See Sec.  1.1272-3 for an election by a holder 
to treat de minimis OID as OID.

[[Page 600]]

    (e) Definitions--(1) Installment obligation. An installment 
obligation is a debt instrument that provides for the payment of any 
amount other than qualified stated interest before maturity.
    (2) Self-amortizing installment obligation. A self-amortizing 
installment obligation is an obligation that provides for equal payments 
composed of principal and qualified stated interest that are 
unconditionally payable at least annually during the entire term of the 
debt instrument with no significant additional payment required at 
maturity.
    (3) Weighted average maturity. The weighted average maturity of a 
debt instrument is the sum of the following amounts determined for each 
payment under the instrument (other than a payment of qualified stated 
interest)--
    (i) The number of complete years from the issue date until the 
payment is made; multiplied by
    (ii) A fraction, the numerator of which is the amount of the payment 
and the denominator of which is the debt instrument's stated redemption 
price at maturity.
    (f) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Qualified stated interest. (i) Facts. On January 1, 1995, 
A purchases at original issue, for $100,000, a debt instrument that 
matures on January 1, 1999, and has a stated principal amount of 
$100,000, payable at maturity. The debt instrument provides for interest 
payments of $8,000 on January 1, 1996, and January 1, 1997, and 
quarterly interest payments of $1,942.65, beginning on April 1, 1997.
    (ii) Amount of qualified stated interest. The annual payments of 
$8,000 and the quarterly payments of $1,942.65 are payable at a single 
fixed rate because 8 percent, compounded annually, is equivalent to 7.77 
percent, compounded quarterly. Consequently, all stated interest 
payments under the debt instrument are qualified stated interest 
payments.
    Example 2. Qualified stated interest with short initial payment 
interval. On October 1, 1994, A purchases at original issue, for 
$100,000, a debt instrument that matures on January 1, 1998, and has a 
stated principal amount of $100,000, payable at maturity. The debt 
instrument provides for an interest payment of $2,000 on January 1, 
1995, and interest payments of $8,000 on January 1, 1996, January 1, 
1997, and January 1, 1998. Under paragraph (c)(1)(iii)(B) of this 
section, all stated interest payments on the debt instrument are 
computed at a single fixed rate and are qualified stated interest 
payments.
    Example 3. Stated interest in excess of qualified stated interest. 
(i) Facts. On January 1, 1995, B purchases at original issue, for 
$100,000, C corporation's 5-year debt instrument. The debt instrument 
provides for a principal payment of $100,000, payable at maturity, and 
calls for annual interest payments of $10,000 for the first 3 years and 
annual interest payments of $10,600 for the last 2 years.
    (ii) Payments in excess of qualified stated interest. All of the 
first three interest payments and $10,000 of each of the last two 
interest payments are qualified stated interest payments within the 
meaning of paragraph (c)(1) of this section. Under paragraph (c)(4) of 
this section, the remaining $600 of each of the last two interest 
payments is included in the stated redemption price at maturity, so that 
the stated redemption price at maturity is $101,200. Pursuant to 
paragraph (e)(3) of this section, the weighted average maturity of the 
debt instrument is 4.994 years [(4 years x $600/$101,200) + (5 years x 
$100,600/$101,200)]. The de minimis amount, or one-fourth of 1 percent 
of the stated redemption price at maturity multiplied by the weighted 
average maturity, is $1,263.50. Because the actual amount of discount, 
$1,200, is less than the de minimis amount, the instrument is treated as 
having no OID, and, under paragraph (d)(1) of this section, all of the 
interest payments are treated as qualified stated interest payments.
    Example 4. Qualified stated interest on a debt instrument that is 
subject to an option. (i) Facts. On January 1, 1997, A issues, for 
$100,000, a 10-year debt instrument that provides for a $100,000 
principal payment at maturity and for annual interest payments of 
$10,000. Under the terms of the debt instrument, A has the option, 
exercisable on January 1, 2002, to lower the annual interest payments to 
$8,000. In addition, the debt instrument gives the holder an 
unconditional right to put the debt instrument back to A, exercisable on 
January 1, 2002, in return for $100,000.
    (ii) Amount of qualified stated interest. Under paragraph (c)(2) of 
this section, the debt instrument provides for qualified stated interest 
to the extent of the lowest fixed rate at which qualified stated 
interest would be payable under any payment schedule. If the payment 
schedule determined by assuming that the issuer's option will be 
exercised and the put option will not be exercised were treated as the 
debt instrument's sole payment schedule, only $8,000 of each annual 
interest payment would be qualified stated interest. Under any other 
payment schedule, the debt instrument would provide for annual qualified 
stated interest payments of $10,000. Accordingly, only $8,000 of each 
annual interest

[[Page 601]]

payment is qualified stated interest. Any excess of each annual interest 
payment over $8,000 is included in the debt instrument's stated 
redemption price at maturity.
    Example 5. De minimis OID; interest holiday. (i) Facts. On January 
1, 1995, C purchases at original issue, for $97,561, a debt instrument 
that matures on January 1, 2007, and has a stated principal amount of 
$100,000, payable at maturity. The debt instrument provides for an 
initial interest holiday of 1 quarter and quarterly interest payments of 
$2,500 thereafter (beginning on July 1, 1995). The issue price of the 
debt instrument is $97,561. C chooses to accrue OID based on quarterly 
accrual periods.
    (ii) De minimis amount of OID. But for the interest holiday, all 
stated interest on the debt instrument would be qualified stated 
interest. Under paragraph (d)(4) of this section, for purposes of 
determining whether the debt instrument has de minimis OID, the stated 
redemption price at maturity of the instrument is $100,061 ($97,561 
(issue price) plus $2,500 (the greater of the amount of foregone 
interest ($2,500) and the amount equal to the excess of the instrument's 
stated principal amount over its issue price ($2,439)). Thus, the debt 
instrument is treated as having OID of $2,500 ($100,061 minus $97,561). 
Because this amount is less than the de minimis amount of $3,001.83 
(0.0025 multiplied by $100,061 multiplied by 12 complete years to 
maturity), the debt instrument is treated as having no OID, and all 
stated interest is treated as qualified stated interest.
    Example 6. De minimis OID; teaser rate. (i) Facts. The facts are the 
same as in Example 5 of this paragraph (f) except that C uses an initial 
semiannual accrual period rather than an initial quarterly accrual 
period.
    (ii) De minimis amount of OID. The debt instrument provides for an 
initial teaser rate because the interest rate for the semiannual accrual 
period is less than the interest rate applicable to the subsequent 
quarterly accrual periods. But for the initial teaser rate, all stated 
interest on the debt instrument would be qualified stated interest. 
Under paragraph (d)(4) of this section, for purposes of determining 
whether the debt instrument has de minimis OID, the stated redemption 
price at maturity of the instrument is $100,123.50 ($97,561 (issue 
price) plus $2,562.50 (the greater of the amount of foregone interest 
($2,562.50) and the amount equal to the excess of the instrument's 
stated principal amount over its issue price ($2,439)). Thus, the debt 
instrument is treated as having OID of $2,562.50 ($100,123.50 minus 
$97,561). Because this amount is less than the de minimis amount of 
$3,003.71 (0.0025 multiplied by $100,123.50 multiplied by 12 complete 
years to maturity), the debt instrument is treated as having no OID, and 
all stated interest is treated as qualified stated interest.

[T.D. 8517, 59 FR 4815, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30141, June 14, 1996; T.D. 9599, 77 FR 56536, Sept. 13, 2012]



Sec.  1.1273-2  Determination of issue price and issue date.

    (a) Debt instruments issued for money--(1) Issue price. If a 
substantial amount of the debt instruments in an issue is issued for 
money, the issue price of each debt instrument in the issue is the first 
price at which a substantial amount of the debt instruments is sold for 
money. Thus, if an issue consists of a single debt instrument that is 
issued for money, the issue price of the debt instrument is the amount 
paid for the instrument. For example, in the case of a debt instrument 
evidencing a loan to a natural person, the issue price of the instrument 
is the amount loaned. See Sec.  1.1275-2(d) for rules regarding Treasury 
securities. For purposes of this paragraph (a), money includes 
functional currency and, in certain circumstances, nonfunctional 
currency. See Sec.  1.988-2(b)(2) for circumstances when nonfunctional 
currency is treated as money rather than as property.
    (2) Issue date. The issue date of an issue described in paragraph 
(a)(1) of this section is the first settlement date or closing date, 
whichever is applicable, on which a substantial amount of the debt 
instruments in the issue is sold for money.
    (b) Publicly traded debt instruments issued for property--(1) Issue 
price. If a substantial amount of the debt instruments in an issue is 
traded on an established market (within the meaning of paragraph (f) of 
this section) and the issue is not described in paragraph (a)(1) of this 
section, the issue price of each debt instrument in the issue is the 
fair market value of the debt instrument, determined as of the issue 
date (as defined in paragraph (b)(2) of this section). See paragraph (f) 
of this section for rules to determine the fair market value of a debt 
instrument for purposes of this section.
    (2) Issue date. The issue date of an issue described in paragraph 
(b)(1) of this section is the first date on which a substantial amount 
of the traded debt instruments in the issue is issued.

[[Page 602]]

    (c) Debt instruments issued for publicly traded property--(1) Issue 
price. If a substantial amount of the debt instruments in an issue is 
issued for property that is traded on an established market (within the 
meaning of paragraph (f) of this section) and the issue is not described 
in paragraph (a)(1) or (b)(1) of this section, the issue price of each 
debt instrument in the issue is the fair market value of the property, 
determined as of the issue date (as defined in paragraph (c)(2) of this 
section). For purposes of the preceding sentence, property means a debt 
instrument, stock, security, contract, commodity, or nonfunctional 
currency. But see Sec.  1.988-2(b)(2) for circumstances when 
nonfunctional currency is treated as money rather than as property. See 
paragraph (f) of this section for rules to determine the fair market 
value of property for purposes of this section.
    (2) Issue date. The issue date of an issue described in paragraph 
(c)(1) of this section is the first date on which a substantial amount 
of the debt instruments in the issue is issued for traded property.
    (d) Other debt instruments--(1) Issue price. If an issue of debt 
instruments is not described in paragraph (a)(1), (b)(1), or (c)(1) of 
this section, the issue price of each debt instrument in the issue is 
determined as if the debt instrument were a separate issue. If the issue 
price of a debt instrument that is treated as a separate issue under the 
preceding sentence is not determined under paragraph (a)(1), (b)(1), or 
(c)(1) of this section, and if section 1274 applies to the debt 
instrument, the issue price of the instrument is determined under 
section 1274. Otherwise, the issue price of the debt instrument is its 
stated redemption price at maturity under section 1273(b)(4). See 
section 1274(c) and Sec.  1.1274-1 to determine if section 1274 applies 
to a debt instrument.
    (2) Issue date. The issue date of an issue described in paragraph 
(d)(1) of this section is the date on which the debt instrument is 
issued for money or in a sale or exchange.
    (e) Special rule for certain sales to bond houses, brokers, or 
similar persons. For purposes of determining the issue price and issue 
date of a debt instrument under this section, sales to bond houses, 
brokers, or similar persons or organizations acting in the capacity of 
underwriters, placement agents, or wholesalers are ignored.
    (f) Traded on an established market (publicly traded)--(1) In 
general. Except as provided in paragraph (f)(6) of this section, 
property (including a debt instrument described in paragraph (b)(1) of 
this section) is traded on an established market for purposes of this 
section if, at any time during the 31-day period ending 15 days after 
the issue date--
    (i) There is a sales price for the property as described in 
paragraph (f)(2) of this section;
    (ii) There are one or more firm quotes for the property as described 
in paragraph (f)(3) of this section; or
    (iii) There are one or more indicative quotes for the property as 
described in paragraph (f)(4) of this section.
    (2) Sales price--(i) In general. A sales price exists if the price 
for an executed purchase or sale of the property within the 31-day 
period described in paragraph (f)(1) of this section is reasonably 
available within a reasonable period of time after the sale.
    (ii) Pricing information for a debt instrument. For purposes of 
paragraph (f)(2)(i) of this section, the price of a debt instrument is 
considered reasonably available if the sales price (or information 
sufficient to calculate the sales price) appears in a medium that is 
made available to issuers of debt instruments, persons that regularly 
purchase or sell debt instruments (including a price provided only to 
certain customers or to subscribers), or persons that broker purchases 
or sales of debt instruments.
    (3) Firm quote. A firm quote is considered to exist when a price 
quote is available from at least one broker, dealer, or pricing service 
(including a price provided only to certain customers or to subscribers) 
for property and the quoted price is substantially the same as the price 
for which the person receiving the quoted price could purchase or sell 
the property. A price quote is considered to be available whether the 
quote is initiated by a person providing the quote or provided at the 
request of the person receiving the

[[Page 603]]

quote. The identity of the person providing the quote must be reasonably 
ascertainable for a quote to be considered a firm quote for purposes of 
this paragraph (f)(3). A quote will be considered a firm quote if the 
quote is designated as a firm quote by the person providing the quote or 
if market participants typically purchase or sell, as the case may be, 
at the quoted price, even if the party providing the quote is not 
legally obligated to purchase or sell at that price.
    (4) Indicative quote. An indicative quote is considered to exist 
when a price quote is available from at least one broker, dealer, or 
pricing service (including a price provided only to certain customers or 
to subscribers) for property and the price quote is not a firm quote 
described in paragraph (f)(3) of this section.
    (5) Presumption that price or quote is equal to fair market value--
(i) In general. For purposes of this section, the fair market value of 
property will be presumed to be equal to its sales price or quoted price 
determined under paragraphs (f)(2) through (f)(4) of this section. If 
there is more than one sales price under paragraph (f)(2) of this 
section, more than one quoted price under paragraph (f)(3) or (f)(4) of 
this section, or both one or more sales prices under paragraph (f)(2) of 
this section and quoted prices under paragraph (f)(3) or (f)(4) of this 
section, a taxpayer may use any reasonable method, consistently applied 
to the same or substantially similar facts, to determine the fair market 
value. For example, to determine the fair market value under a 
reasonable method, a taxpayer may consider factors such as (but not 
necessarily limited to) the timing of each relevant sale or quote in 
relation to the issue date; whether the price is derived from a sale, a 
firm quote, or an indicative quote; the size of each relevant sale or 
quote; or whether the sales price or quote corresponds to pricing 
information provided by an independent bond or loan pricing service.
    (ii) Special rule for property for which there is only an indicative 
quote. If property is described only in paragraph (f)(4) of this 
section, and the taxpayer determines that the quote (or an average of 
the quotes) materially misrepresents the fair market value of the 
property, the taxpayer can use any method that provides a reasonable 
basis to determine the fair market value of the property. A taxpayer 
must establish that the method chosen more accurately reflects the value 
of the property than the quote or quotes for the property to use the 
method provided in this paragraph (f)(5)(ii). For an equity or debt 
instrument, a volume discount or control premium will not be considered 
to create a material misrepresentation of value for purposes of this 
paragraph (f)(5)(ii).
    (6) Exception for small debt issues. Notwithstanding any other 
provision in paragraph (f) of this section, a debt instrument will not 
be treated as traded on an established market if at the time the 
determination is made the outstanding stated principal amount of the 
issue that includes the debt instrument does not exceed US$100 million 
(or, for a debt instrument denominated in a currency other than the U.S. 
dollar, the equivalent amount in the currency in which the debt 
instrument is denominated).
    (7) Anti-abuse rules--(i) Effect of certain temporary restrictions 
on trading. If there is any temporary restriction on trading a purpose 
of which is to avoid the characterization of the property as one that is 
traded on an established market for Federal income tax purposes, then 
the property is treated as traded on an established market. For purposes 
of the preceding sentence, a temporary restriction on trading need not 
be imposed by the issuer.
    (ii) Artificial pricing information. If a principal purpose for the 
existence of any sale or price quotation is to cause the property to be 
traded on an established market or to materially misrepresent the value 
of property, that sale or price quotation is disregarded.
    (8) Convertible debt instruments. A debt instrument is not treated 
as traded on an established market solely because the debt instrument is 
convertible into property that is so traded.
    (9) Issuer-holder consistency requirement--(i) General rule. For 
purposes of this section, an issuer must determine

[[Page 604]]

whether property is traded on an established market and, if so, the fair 
market value of the property. An issuer is required to exercise 
reasonable diligence to determine whether purchases or sales have taken 
place, the quantity of purchases and sales, the price at which purchases 
or sales occurred, the existence of firm or indicative quotes, and any 
other relevant information using the rules provided in paragraph (f) of 
this section to determine the fair market value of the property. If an 
issuer determines that property is traded on an established market, the 
issuer is required to make that determination as well as the fair market 
value of the property (which can be stated as the issue price of the 
debt instrument) available to holders in a commercially reasonable 
fashion, including by electronic publication, within 90 days of the date 
that the debt instrument is issued. Each determination by an issuer is 
binding on a holder of the debt instrument unless the holder explicitly 
discloses that its determination is different from the issuer's 
determination (for example, the holder determines a different fair 
market value for the property or determines that the property is not 
traded on an established market). A holder must describe in the 
disclosure the reasons for its different determination and, if 
applicable, how the holder determined the fair market value. A holder's 
disclosure must be filed on a timely filed Federal income tax return for 
the taxable year that includes the acquisition date of the debt 
instrument. If an issuer for any reason does not make the fair market 
value or issue price of a debt instrument reasonably available to a 
holder, the holder must determine the fair market value of the property 
and issue price of the debt instrument using the rules provided in 
paragraph (f) of this section.
    (ii) Co-obligors. If a debt instrument has more than one obligor, 
the obligors must designate one obligor (issuer) to determine whether 
property is traded on an established market and, if so, the fair market 
value of the property and issue price of the debt instrument and make 
the price available to holders using the rules provided in paragraph 
(f)(9)(i) of this section.
    (10) Effective/applicability dates--(i) This paragraph (f) applies 
to a debt instrument issued on or after November 13, 2012.
    (ii) For rules applying to a debt instrument issued before November 
13, 2012, see paragraph (f) of this section as contained in 26 CFR part 
1, revised April 1, 2011.
    (g) Treatment of certain cash payments incident to lending 
transactions--(1) Applicability. The provisions of this paragraph (g) 
apply to cash payments made incident to private lending transactions 
(including seller financing).
    (2) Payments from borrower to lender--(i) Money lending transaction. 
In a lending transaction to which section 1273(b)(2) applies, a payment 
from the borrower to the lender (other than a payment for property or 
for services provided by the lender, such as commitment fees or loan 
processing costs) reduces the issue price of the debt instrument 
evidencing the loan. However, solely for purposes of determining the tax 
consequences to the borrower, the issue price is not reduced if the 
payment is deductible under section 461(g)(2).
    (ii) Section 1274 transaction. In a lending transaction to which 
section 1274 applies, a payment from the buyer-borrower to the seller-
lender that is designated as interest or points reduces the stated 
principal amount of the debt instrument evidencing the loan, but is 
included in the purchase price of the property. If the payment is 
deductible under section 461(g)(2), however, the issue price of the debt 
instrument (as otherwise determined under section 1274 and the rule in 
the preceding sentence) is increased by the amount of the payment to 
compute the buyer-borrower's interest deductions under section 163.
    (3) Payments from lender to borrower. A payment from the lender to 
the borrower in a lending transaction is treated as an amount loaned.
    (4) Payments between lender and third party. If, as part of a 
lending transaction, a party other than the borrower (the third party) 
makes a payment to the lender, that payment is treated in appropriate 
circumstances as made from the third party to the borrower followed by a 
payment in the same

[[Page 605]]

amount from the borrower to the lender and governed by the provisions of 
paragraph (g)(2) of this section. If, as part of a lending transaction, 
the lender makes a payment to a third party, that payment is treated in 
appropriate circumstances as an additional amount loaned to the borrower 
and then paid by the borrower to the third party. The character of the 
deemed payment between the borrower and the third party depends on the 
substance of the transaction.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (g).

    Example 1. Payments from borrower to lender in a cash transaction. 
(i) Facts. A lends $100,000 to B for a term of 10 years. At the time the 
loan is made, B pays $4,000 in points to A. Assume that the points are 
not deductible by B under section 461(g)(2) and that the stated 
redemption price at maturity of the debt instrument is $100,000.
    (ii) Payment results in OID. Under paragraph (g)(2)(i) of this 
section, the issue price of B's debt instrument evidencing the loan is 
$96,000. Because the amount of OID on the debt instrument ($4,000) is 
more than a de minimis amount of OID, A accounts for the OID under Sec.  
1.1272-1. B accounts for the OID under Sec.  1.163-7.
    Example 2. Payments from borrower to lender in a section 1274 
transaction. (i) Facts. A sells property to B for $1,000,000 in a 
transaction that is not a potentially abusive situation (within the 
meaning of Sec.  1.1274-3). In consideration for the property, B gives A 
$300,000 and issues a 5-year debt instrument that has a stated principal 
amount of $700,000, payable at maturity, and that calls for semiannual 
payments of interest at a rate of 8.5 percent. In addition to the cash 
downpayment, B pays A $14,000 designated as points on the loan. Assume 
that the points are not deductible under section 461(g)(2).
    (ii) Issue price. Under paragraph (g)(2)(ii) of this section, the 
stated principal amount of B's debt instrument is -$686,000 ($700,000 
minus $14,000). Assuming a test rate of 9 percent, compounded 
semiannually, the imputed principal amount of B's debt instrument under 
Sec.  1.1274-2(c)(1) is $686,153. Under Sec.  1.1274-2(b)(1), the issue 
price of B's debt instrument is the stated principal amount of $686,000. 
Because the amount of OID on the debt instrument ($700,000-$686,000, or 
$14,000) is more than a de minimis amount of OID, A accounts for the OID 
under Sec.  1.1272-1 and B accounts for the OID under Sec.  1.163-7. B's 
basis in the property purchased is $1,000,000 ($686,000 debt instrument 
plus $314,000 cash payments).
    Example 3. Payments between lender and third party (seller-paid 
points). (i) Facts. A sells real property to B for $500,000 in a 
transaction that is not a potentially abusive situation (within the 
meaning of Sec.  1.1274-3). B makes a cash down payment of $100,000 and 
borrows $400,000 of the purchase price from a lender, L, repayable in 
annual installments over a term of 15 years calling for interest at a 
rate of 9 percent, compounded annually. As part of the transaction, A 
makes a payment of $8,000 to L to facilitate the loan to B.
    (ii) Payment results in a de minimis amount of OID. Under the 
provisions of paragraphs (g)(2)(i) and (g)(4) of this section, B is 
treated as having made an $8,000 payment directly to L and a payment of 
only $492,000 to A for the property. Thus, B's basis in the property is 
$492,000. The payment to L reduces the issue price of B's debt 
instrument to $392,000, resulting in $8,000 of OID ($400,000-$392,000). 
Because the amount of OID is de minimis under Sec.  1.1273-1(d), L 
accounts for the de minimis OID under Sec.  1.1273-1(d)(5). But see 
Sec.  1.1272-3 (election to treat de minimis OID as OID). B accounts for 
the de minimis OID under Sec.  1.163-7.

    (h) Investment units--(1) In general. Under section 1273(c)(2), an 
investment unit is treated as if the investment unit were a debt 
instrument. The issue price of the investment unit is determined under 
paragraph (a)(1), (b)(1), or (c)(1) of this section, if applicable. The 
issue price of the investment unit is then allocated between the debt 
instrument and the property right (or rights) that comprise the unit 
based on their relative fair market values. If paragraphs (a)(1), 
(b)(1), and (c)(1) of this section are not applicable, however, the 
issue price of the debt instrument that is part of the investment unit 
is determined under section 1273(b)(4) or 1274, whichever is applicable.
    (2) Consistent allocation by holders and issuer. The issuer's 
allocation of the issue price of the investment unit is binding on all 
holders of the investment unit. However, the issuer's determination is 
not binding on a holder that explicitly discloses that its allocation is 
different from the issuer's allocation. Unless otherwise provided by the 
Commissioner, the disclosure must be made on a statement attached to the 
holder's timely filed Federal income tax return for the taxable year 
that includes the acquisition date of the investment unit. See Sec.  
1.1275-2(e)

[[Page 606]]

for rules relating to the issuer's obligation to disclose certain 
information to holders.
    (i) [Reserved]
    (j) Convertible debt instruments. The issue price of a debt 
instrument includes any amount paid for an option to convert the 
instrument into stock (or another debt instrument) of either the issuer 
or a related party (within the meaning of section 267(b) or 707(b)(1)) 
or into cash or other property in an amount equal to the approximate 
value of such stock (or debt instrument). For debt instruments issued on 
or after February 5, 2013, the term stock in the preceding sentence 
means an equity interest in any entity that is classified, for Federal 
tax purposes, as either a partnership or a corporation.
    (k) Below-market loans subject to section 7872(b). The issue price 
of a below-market loan subject to section 7872(b) (a term loan other 
than a gift loan) is the issue price determined under this section, 
reduced by the excess amount determined under section 7872(b)(1).
    (l) [Reserved]
    (m) Treatment of amounts representing pre-issuance accrued 
interest--(1) Applicability. Paragraph (m)(2) of this section provides 
an alternative to the general rule of this section for determining the 
issue price of a debt instrument if--
    (i) A portion of the initial purchase price of the instrument is 
allocable to interest that has accrued prior to the issue date (pre-
issuance accrued interest); and
    (ii) The instrument provides for a payment of stated interest on the 
first payment date within 1 year of the issue date that equals or 
exceeds the amount of the pre-issuance accrued interest.
    (2) Exclusion of pre-issuance accrued interest from issue price. If 
a debt instrument meets the requirements of paragraph (m)(1) of this 
section, the instrument's issue price may be computed by subtracting 
from the issue price (as otherwise computed under this section) the 
amount of pre-issuance accrued interest. If the issue price of the debt 
instrument is computed in this manner, a portion of the stated interest 
payable on the first payment date must be treated as a return of the 
excluded pre-issuance accrued interest, rather than as an amount payable 
on the instrument.
    (3) Example. The following example illustrates the rule of paragraph 
(m) of this section.

    Example: (i) Facts. On January 15, 1995, A purchases at original 
issue, for $1,005, B corporation's debt instrument. The debt instrument 
provides for a payment of principal of $1,000 on January 1, 2005, and 
provides for semiannual interest payments of $60 on January 1 and July 1 
of each year, beginning on July 1, 1995.
    (ii) Determination of pre-issuance accrued interest. Under 
paragraphs (m)(1) and (m)(2) of this section, $5 of the $1,005 initial 
purchase price of the debt instrument is allocable to pre-issuance 
accrued interest. Accordingly, the debt instrument's issue price may be 
computed by subtracting the amount of pre-issuance accrued interest ($5) 
from the issue price otherwise computed under this section ($1,005), 
resulting in an issue price of $1,000. If the issue price is computed in 
this manner, $5 of the $60 payment made on July 1, 1995, must be treated 
as a repayment by B of the pre-issuance accrued interest.

[T.D. 8517, 59 FR 4817, Feb. 2, 1994, as amended by T.D. 9599, 77 FR 
56536, Sept. 13, 2012; T.D. 9612, 78 FR 8016, Feb. 5, 2013]



Sec.  1.1274-1  Debt instruments to which section 1274 applies.

    (a) In general. Subject to the exceptions and limitations in 
paragraph (b) of this section, section 1274 and this section apply to 
any debt instrument issued in consideration for the sale or exchange of 
property. For purposes of section 1274, property includes debt 
instruments and investment units, but does not include money, services, 
or the right to use property. For the treatment of certain obligations 
given in exchange for services or the use of property, see sections 404 
and 467. For purposes of this paragraph (a), money includes functional 
currency and, in certain circumstances, nonfunctional currency. See 
Sec.  1.988-2(b)(2) for circumstances when nonfunctional currency is 
treated as money rather than as property.
    (b) Exceptions--(1) Debt instrument with adequate stated interest 
and no OID. Section 1274 does not apply to a debt instrument if--
    (i) All interest payable on the instrument is qualified stated 
interest;

[[Page 607]]

    (ii) The stated rate of interest is at least equal to the test rate 
of interest (as defined in Sec.  1.1274-4);
    (iii) The debt instrument is not issued in a potentially abusive 
situation (as defined in Sec.  1.1274-3); and
    (iv) No payment from the buyer-borrower to the seller-lender 
designated as points or interest is made at the time of issuance of the 
debt instrument.
    (2) Exceptions under sections 1274(c)(1)(B), 1274(c)(3), 1274A(c), 
and 1275(b)(1)--(i) In general. Sections 1274(c)(1)(B), 1274(c)(3), 
1274A(c), and 1275(b)(1) describe certain transactions to which section 
1274 does not apply. This paragraph (b)(2) provides certain rules to be 
used in applying those exceptions.
    (ii) Special rules for certain exceptions under section 1274(c)(3)--
(A) Determination of sales price for certain sales of farms. For 
purposes of section 1274(c)(3)(A), the determination as to whether the 
sales price cannot exceed $1,000,000 is made without regard to any other 
exception to, or limitation on, the applicability of section 1274 (e.g., 
without regard to the special rules regarding sales of principal 
residences and land transfers between related persons). In addition, the 
sales price is determined without regard to section 1274 and without 
regard to any stated interest. The sales price includes the amount of 
any liability included in the amount realized from the sale or exchange. 
See Sec.  1.1001-2.
    (B) Sales involving total payments of $250,000 or less. Under 
section 1274(c)(3)(C), the determination of the amount of payments due 
under all debt instruments and the amount of other consideration to be 
received is made as of the date of the sale or exchange or, if earlier, 
the contract date. If the precise amount due under any debt instrument 
or the precise amount of any other consideration to be received cannot 
be determined as of that date, section 1274(c)(3)(C) applies only if it 
can be determined that the maximum of the aggregate amount of payments 
due under the debt instruments and other consideration to be received 
cannot exceed $250,000. For purposes of section 1274(c)(3)(C), if a 
liability is assumed or property is taken subject to a liability, the 
aggregate amount of payments due includes the outstanding principal 
balance or adjusted issue price (in the case of an obligation originally 
issued at a discount) of the obligation.
    (C) Coordination with section 1273 and Sec.  1.1273-2. In accordance 
with section 1274(c)(3)(D), section 1274 and this section do not apply 
if the issue price of a debt instrument issued in consideration for the 
sale or exchange of property is determined under paragraph (a)(1), 
(b)(1), or (c)(1) of Sec.  1.1273-2.
    (3) Other exceptions to section 1274--(i) Holders of certain below-
market instruments. Section 1274 does not apply to any holder of a debt 
instrument that is issued in consideration for the sale or exchange of 
personal use property (within the meaning of section 1275(b)(3)) in the 
hands of the issuer and that evidences a below-market loan described in 
section 7872(c)(1).
    (ii) Transactions involving certain demand loans. Section 1274 does 
not apply to any debt instrument that evidences a demand loan that is a 
below-market loan described in section 7872(c)(1).
    (iii) Certain transfers subject to section 1041. Section 1274 does 
not apply to any debt instrument issued in consideration for a transfer 
of property subject to section 1041 (relating to transfers of property 
between spouses or incident to divorce).
    (c) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Single stated rate paid semiannually. A debt instrument 
issued in consideration for the sale of nonpublicly traded property in a 
transaction that is not a potentially abusive situation calls for the 
payment of a principal amount of $1,000,000 at the end of a 10-year term 
and 20 semiannual interest payments of $60,000. Assume that the test 
rate of interest is 12 percent, compounded semiannually. The debt 
instrument is not subject to section 1274 because it provides for 
interest equal to the test rate and all interest payable on the 
instrument is qualified stated interest.
    Example 2. Sale of farm for debt instrument with contingent 
interest. (i) Facts. On July 1, 1995, A, an individual, sells to B land 
used as a farm within the meaning of section 6420(c)(2). As partial 
consideration for the sale, B issues a debt instrument calling for a 
single $500,000 payment due in 10 years unless profits from the land in 
each of the 10 years preceding maturity of the debt instrument exceed a 
specified amount, in which case B is to make a payment of $1,200,000. 
The debt instrument does not provide for interest.

[[Page 608]]

    (ii) Total payments may exceed $1,000,000. Even though the total 
payments ultimately payable under the contract may be less than 
$1,000,000, at the time of the sale or exchange it cannot be determined 
that the sales price cannot exceed $1,000,000. Thus, the sale of the 
land used as a farm is not an excepted transaction described in section 
1274(c)(3)(A).
    Example 3. Sale between related parties subject to section 483(e). 
(i) Facts. On July 1, 1995, A, an individual, sells land (not used as a 
farm within the meaning of section 6420(c)(2)) to A's child B for 
$650,000. In consideration for the sale, B issues a 10-year debt 
instrument to A that calls for a payment of $650,000. No other 
consideration is given. The debt instrument does not provide for 
interest.
    (ii) Treatment of debt instrument. For purposes of section 483(e), 
the $650,000 debt instrument is treated as two separate debt 
instruments: a $500,000 debt instrument and a $150,000 debt instrument. 
The $500,000 debt instrument is subject to section 483(e), and 
accordingly is covered by the exception from section 1274 described in 
section 1274(c)(3)(F). Because the amount of the payments due as 
consideration for the sale exceeds $250,000, however, the $150,000 debt 
instrument is subject to section 1274.

[T.D. 8517, 59 FR 4820, Feb. 2, 1994]



Sec.  1.1274-2  Issue price of debt instruments to which section 1274 applies.

    (a) In general. If section 1274 applies to a debt instrument, 
section 1274 and this section determine the issue price of the debt 
instrument. For rules relating to the determination of the amount and 
timing of OID to be included in income, see section 1272 and the 
regulations thereunder.
    (b) Issue price--(1) Debt instruments that provide for adequate 
stated interest; stated principal amount. The issue price of a debt 
instrument that provides for adequate stated interest is the stated 
principal amount of the debt instrument. For purposes of section 1274, 
the stated principal amount of a debt instrument is the aggregate amount 
of all payments due under the debt instrument, excluding any amount of 
stated interest. Under Sec.  1.1273-2(g)(2)(ii), however, the stated 
principal amount of a debt instrument is reduced by any payment from the 
buyer- borrower to the seller-lender that is designated as interest or 
points. See Example 2 of Sec.  1.1273-2(g)(5).
    (2) Debt instruments that do not provide for adequate stated 
interest; imputed principal amount. The issue price of a debt instrument 
that does not provide for adequate stated interest is the imputed 
principal amount of the debt instrument.
    (3) Debt instruments issued in a potentially abusive situation; fair 
market value. Notwithstanding paragraphs (b)(1) and (b)(2) of this 
section, in the case of a debt instrument issued in a potentially 
abusive situation (as defined in Sec.  1.1274-3), the issue price of the 
debt instrument is the fair market value of the property received in 
exchange for the debt instrument, reduced by the fair market value of 
any consideration other than the debt instrument issued in consideration 
for the sale or exchange.
    (c) Determination of whether a debt instrument provides for adequate 
stated interest--(1) In general. A debt instrument provides for adequate 
stated interest if its stated principal amount is less than or equal to 
its imputed principal amount. Imputed principal amount means the sum of 
the present values, as of the issue date, of all payments, including 
payments of stated interest, due under the debt instrument (determined 
by using a discount rate equal to the test rate of interest as 
determined under Sec.  1.1274-4). If a debt instrument has a single 
fixed rate of interest that is paid or compounded at least annually, and 
that rate is equal to or greater than the test rate, the debt instrument 
has adequate stated interest.
    (2) Determination of present value. The present value of a payment 
is determined by discounting the payment from the date it becomes due to 
the date of the sale or exchange at the test rate of interest. To 
determine present value, a compounding period must be selected, and the 
test rate must be based on the same compounding period.
    (d) Treatment of certain options. This paragraph (d) provides rules 
for determining the issue price of a debt instrument to which section 
1274 applies (other than a debt instrument issued in a potentially 
abusive situation) that is subject to one or more options described in 
both paragraphs (c)(1) and (c)(5) of Sec.  1.1272-1. Under this 
paragraph (d), an issuer will be deemed to exercise

[[Page 609]]

or not exercise an option or combination of options in a manner that 
minimizes the instrument's imputed principal amount, and a holder will 
be deemed to exercise or not exercise an option or combination of 
options in a manner that maximizes the instrument's imputed principal 
amount. If both the issuer and the holder have options, the rules of 
this paragraph (d) are applied to the options in the order that they may 
be exercised. Thus, the deemed exercise of one option may eliminate 
other options that are later in time. See Sec.  1.1272-1(c)(5) to 
determine the debt instrument's yield and maturity for purposes of 
determining the accrual of OID with respect to the instrument.
    (e) Mandatory sinking funds. In determining the issue price of a 
debt instrument to which section 1274 applies (other than a debt 
instrument issued in a potentially abusive situation) and that is 
subject to a mandatory sinking fund provision described in Sec.  1.1272-
1(c)(3), the mandatory sinking fund provision is ignored.
    (f) Treatment of variable rate debt instruments--(1) Stated interest 
at a qualified floating rate--(i) In general. For purposes of paragraph 
(c) of this section, the imputed principal amount of a variable rate 
debt instrument (within the meaning of Sec.  1.1275-5(a)) that provides 
for stated interest at a qualified floating rate (or rates) is 
determined by assuming that the instrument provides for a fixed rate of 
interest for each accrual period to which a qualified floating rate 
applies. For purposes of the preceding sentence, the assumed fixed rate 
in each accrual period is the greater of--
    (A) The value of the applicable qualified floating rate as of the 
first date on which there is a binding written contract that 
substantially sets forth the terms under which the sale or exchange is 
ultimately consummated; or
    (B) The value of the applicable qualified floating rate as of the 
date on which the sale or exchange occurs.
    (ii) Interest rate restrictions. Notwithstanding paragraph (f)(1)(i) 
of this section, if, as a result of interest rate restrictions (such as 
an interest rate cap), the expected yield of the debt instrument taking 
the restrictions into account is significantly less than the expected 
yield of the debt instrument without regard to the restrictions, the 
interest payments on the debt instrument (other than any fixed interest 
payments) are treated as contingent payments. Reasonably symmetric 
interest rate caps and floors, or reasonably symmetric governors, that 
are fixed throughout the term of the debt instrument do not result in 
the debt instrument being subject to this rule.
    (2) Stated interest at a single objective rate. For purposes of 
paragraph (c) of this section, the imputed principal amount of a 
variable rate debt instrument (within the meaning of Sec.  1.1275-5(a)) 
that provides for stated interest at a single objective rate is 
determined by treating the interest payments as contingent payments.
    (g) Treatment of contingent payment debt instruments. 
Notwithstanding paragraph (b) of this section, if a debt instrument 
subject to section 1274 provides for one or more contingent payments, 
the issue price of the debt instrument is the lesser of the instrument's 
noncontingent principal payments and the sum of the present values of 
the noncontingent payments (as determined under paragraph (c) of this 
section). However, if the debt instrument is issued in a potentially 
abusive situation, the issue price of the debt instrument is the fair 
market value of the noncontingent payments. For additional rules 
relating to a debt instrument that provides for one or more contingent 
payments, see Sec.  1.1275-4. This paragraph (g) applies to debt 
instruments issued on or after August 13, 1996.
    (h) Examples. The following examples illustrate the rules of this 
section. Each example assumes a 30-day month, 360-day year. In addition, 
each example assumes that the debt instrument is not a qualified debt 
instrument (as defined in section 1274A(b)) and is not issued in a 
potentially abusive situation.

    Example 1. Debt instrument without a fixed rate over its entire 
term. (i) Facts. On January 1, 1995, A sells nonpublicly traded property 
to B for a stated purchase price of $3,500,000. In consideration for the 
sale, B makes a down payment of $500,000 and issues a 10-year debt 
instrument with a stated principal amount of $3,000,000, payable at 
maturity.

[[Page 610]]

The debt instrument calls for no interest in the first 2 years and 
interest at a rate of 15 percent payable annually over the remaining 8 
years of the debt instrument. The first interest payment of $450,000 is 
due on December 31, 1997, and the last interest payment is due on 
December 31, 2004, together with the $3,000,000 payment of principal. 
Assume that the test rate of interest applicable to the debt instrument 
is 10.5 percent, compounded annually.
    (ii) Applicability of section 1274. Because the debt instrument does 
not provide for any interest during the first 2 years, none of the 
interest on the debt instrument is qualified stated interest. Therefore, 
the issue price of the debt instrument is determined under section 1274. 
See Sec.  1.1274-1(b)(1). If the debt instrument has adequate stated 
interest, the issue price of the instrument is its stated principal 
amount. Otherwise, the issue price of the debt instrument is its imputed 
principal amount. The debt instrument has adequate stated interest only 
if the stated principal amount is less than or equal to the imputed 
principal amount.
    (iii) Determination of imputed principal amount. To compute the 
imputed principal amount of the debt instrument, all payments due under 
the debt instrument are discounted back to the issue date at 10.5 
percent, compounded annually, as follows:
    (A) The present value of the $3,000,000 principal payment payable on 
December 31, 2004, is $1,105,346.59, determined as follows:
[GRAPHIC] [TIFF OMITTED] TR02FE94.000

    (B) The present value of the eight interest payments of $450,000 as 
of January 1, 1997, is $2,357,634.55, determined as follows:
[GRAPHIC] [TIFF OMITTED] TR02FE94.001

    (C) The present value of this interim amount as of January 1, 1995, 
is $1,930,865.09, determined as follows:
[GRAPHIC] [TIFF OMITTED] TR02FE94.002

    (iv) Determination of issue price. The debt instrument's imputed 
principal amount (that is, the present value of all payments due under 
the debt instrument) is $3,036,211.68 ($1,105,346.59 + $1,930,865.09). 
Because the stated principal amount ($3,000,000) is less than the 
imputed principal amount, the debt instrument provides for adequate 
stated interest. Therefore, the issue price of the debt instrument is 
its stated principal amount ($3,000,000).
    Example 2. Debt instrument subject to issuer call option. (i) Facts. 
On January 1, 1995, in partial consideration for the sale of nonpublicly 
traded property, H corporation issues to G a 10-year debt instrument, 
maturing on January 1, 2005, with a stated principal amount of 
$10,000,000, payable on that date. The debt instrument provides for 
annual payments of interest of 8 percent for the first 5 years and 14 
percent for the final 5 years, payable on January 1 of each year, 
beginning on January 1, 1996. In addition the debt instrument provides H 
with the unconditional option to call (prepay) the debt instrument at 
the end of 5 years for its stated principal amount of $10,000,000. 
Assume that the Federal mid-term and long-term rates applicable to the 
sale based on annual compounding are 9 percent and 10 percent, 
respectively.
    (ii) Option presumed exercised. Assuming exercise of the call 
option, the imputed principal amount as determined under paragraph (d) 
of this section is $9,611,034.87 (the present value of all of the 
payments due within a 5-year term discounted at a test rate of 9 
percent, compounded annually). Assuming nonexercise of the call option, 
the imputed principal amount is $10,183,354.78 (the present value of all 
of the payments due within a 10-year term discounted at a test rate of 
10 percent, compounded annually). For purposes of determining the 
imputed principal amount, the option is presumed exercised because the 
imputed principal amount, assuming exercise of the option, is less than 
the imputed principal amount, assuming the option is not exercised. 
Because the option is presumed exercised, the debt instrument fails to 
provide for adequate stated interest because the imputed principal 
amount ($9,611,034.87) is less than the stated principal amount 
($10,000,000). Thus, the issue price of the debt instrument is 
$9,611,034.87.
    Example 3. Variable rate debt instrument with a single rate over its 
entire term. (i) Facts. On January 1, 1995, A sells B nonpublicly traded 
property. In partial consideration for the sale, B issues a debt 
instrument in the principal amount of $1,000,000, payable in 5 years. 
The debt instrument calls for interest payable monthly at a rate of 1 
percentage point above the average prime lending rate of a major bank 
for the month preceding the month of the interest payment. Assume that 
the test rate of interest applicable to the debt instrument is 10.5 
percent, compounded monthly. Assume also that 1 percentage point above 
the prime lending rate of the designated bank on the date of the sale is 
12.5 percent, compounded monthly, which is greater than 1 percentage 
point above the prime lending rate of the designated bank on the first 
date on which there is a binding written contract that substantially 
sets forth the terms under which the sale is consummated.

[[Page 611]]

    (ii) Debt instrument has adequate stated interest. The debt 
instrument is a variable rate debt instrument (within the meaning of 
Sec.  1.1275-5) that provides for stated interest at a qualified 
floating rate. Under paragraph (f)(1)(i) of this section, the debt 
instrument is treated as if it provided for a fixed rate of interest 
equal to 12.5 percent, compounded monthly. Because the test rate of 
interest is 10.5 percent, compounded monthly, the debt instrument 
provides for adequate stated interest.
    Example 4. Debt instrument with a capped variable rate. On July 1, 
1995, A sells nonpublicly traded property to B in return for a debt 
instrument with a stated principal amount of $10,000,000, payable on 
July 1, 2005. Interest is payable on July 1 of each year, beginning on 
July 1, 1996, at the Federal short-term rate for June of the same year. 
The debt instrument provides, however, that the interest rate cannot 
rise above 8.5 percent, compounded annually. Assume that, as of the date 
the test rate of interest for the debt instrument is determined, the 
Federal short-term rate is 8 percent, compounded annually. Assume 
further that, as a result of the interest rate cap of 8.5 percent, 
compounded annually, the expected yield of the debt instrument is 
significantly less than the expected yield of the debt instrument if it 
did not include the interest rate cap. Under paragraph (f)(1)(ii) of 
this section, the variable payments are treated as contingent payments 
for purposes of this section.

    (i) [Reserved]
    (j) Special rules for tax-exempt obligations--(1) Certain variable 
rate debt instruments. Notwithstanding paragraph (b) of this section, if 
a tax-exempt obligation (as defined in section 1275(a)(3)) is a variable 
rate debt instrument (within the meaning of Sec.  1.1275-5) that pays 
interest at an objective rate and is subject to section 1274, the issue 
price of the obligation is the greater of the obligation's fair market 
value and its stated principal amount.
    (2) Contingent payment debt instruments. Notwithstanding paragraphs 
(b) and (g) of this section, if a tax-exempt obligation (as defined in 
section 1275(a)(3)) is subject to section 1274 and Sec.  1.1275-4, the 
issue price of the obligation is the fair market value of the 
obligation. However, in the case of a tax-exempt obligation that is 
subject to Sec.  1.1275-4(d)(2) (an obligation that provides for 
interest-based or revenue-based payments), the issue price of the 
obligation is the greater of the obligation's fair market value and its 
stated principal amount.
    (3) Effective date. This paragraph (j) applies to debt instruments 
issued on or after August 13, 1996.

[T.D. 8517, 59 FR 4821, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30141, June 14, 1996]



Sec.  1.1274-3  Potentially abusive situations defined.

    (a) In general. For purposes of section 1274, a potentially abusive 
situation means---
    (1) A tax shelter (as defined in section 6662(d)(2)(C)(ii)); or
    (2) Any other situation involving--
    (i) A recent sales transaction;
    (ii) Nonrecourse financing;
    (iii) Financing with a term in excess of the useful life of the 
property; or
    (iv) A debt instrument with clearly excessive interest.
    (b) Operating rules--(1) Debt instrument exchanged for nonrecourse 
financing. Nonrecourse financing does not include an exchange of a 
nonrecourse debt instrument for an outstanding recourse or nonrecourse 
debt instrument.
    (2) Nonrecourse debt with substantial down payment. Nonrecourse 
financing does not include a sale or exchange of a real property 
interest financed by a nonrecourse debt instrument if, in addition to 
the nonrecourse debt instrument, the purchaser makes a down payment in 
money that equals or exceeds 20 percent of the total stated purchase 
price of the real property interest. For purposes of the preceding 
sentence, a real property interest means any interest, other than an 
interest solely as a creditor, in real property.
    (3) Clearly excessive interest. Interest on a debt instrument is 
clearly excessive if the interest, in light of the terms of the debt 
instrument and the creditworthiness of the borrower, is clearly greater 
than the arm's length amount of interest that would have been charged in 
a cash lending transaction between the same two parties.
    (4) Debt-for-debt exchange--(i) Rule. A debt instrument issued in a 
debt-for-debt exchange, including a deemed exchange under Sec.  1.1001-
3, will not be treated as the subject of a recent sales transaction for 
purposes of section 1274(b)(3)(B)(ii)(I) even if the debt instrument 
exchanged for the newly issued debt instrument was recently

[[Page 612]]

acquired prior to the exchange. Therefore, the issue price of the debt 
instrument will not be determined under section 1274(b)(3). However, if 
the debt instrument or the property for which the debt instrument is 
issued is publicly traded within the meaning of Sec.  1.1273-2(f), the 
rules of Sec.  1.1273-2 will apply to determine the issue price of the 
debt instrument.
    (ii) Effective/applicability date. Paragraph (b)(4)(i) of this 
section applies to a debt instrument issued on or after November 13, 
2012.
    (c) Other situations to be specified by Commissioner. The 
Commissioner may designate in the Internal Revenue Bulletin situations 
that, although described in paragraph (a)(2) of this section, will not 
be treated as potentially abusive because they do not have the effect of 
significantly misstating basis or amount realized (see Sec.  
601.601(d)(2)(ii) of this chapter).
    (d) Consistency rule. The issuer's determination that the debt 
instrument is or is not issued in a potentially abusive situation is 
binding on all holders of the debt instrument. However, the issuer's 
determination is not binding on a holder who explicitly discloses a 
position that is inconsistent with the issuer's determination. Unless 
otherwise prescribed by the Commissioner, the disclosure must be made on 
a statement attached to the holder's timely filed Federal income tax 
return for the taxable year that includes the acquisition date of the 
debt instrument. See Sec.  1.1275-2(e) for rules relating to the 
issuer's obligation to disclose certain information to holders.

[T.D. 8517, 59 FR 4822, Feb. 2, 1994, as amended by T.D. 9599, 77 FR 
56538, Sept. 13, 2012]



Sec.  1.1274-4  Test rate.

    (a) Determination of test rate of interest--(1) In general--(i) Test 
rate is the 3-month rate. Except as provided in paragraph (a)(2) of this 
section, the test rate of interest for a debt instrument issued in 
consideration for the sale or exchange of property is the 3-month rate.
    (ii) The 3-month rate. Except as provided in paragraph (a)(1)(iii) 
of this section, the 3-month rate is the lower of--
    (A) The lowest applicable Federal rate (based on the appropriate 
compounding period) in effect during the 3-month period ending with the 
first month in which there is a binding written contract that 
substantially sets forth the terms under which the sale or exchange is 
ultimately consummated; or
    (B) The lowest applicable Federal rate (based on the appropriate 
compounding period) in effect during the 3-month period ending with the 
month in which the sale or exchange occurs.
    (iii) Special rule if there is no binding written contract. If there 
is no binding written contract that substantially sets forth the terms 
under which the sale or exchange is ultimately consummated, the 3-month 
rate is the lowest applicable Federal rate (based on the appropriate 
compounding period) in effect during the 3-month period ending with the 
month in which the sale or exchange occurs.
    (2) Test rate for certain debt instruments--(i) Sale-leaseback 
transactions. Under section 1274(e) (relating to certain sale-leaseback 
transactions), the test rate is 110 percent of the 3-month rate 
determined under paragraph (a)(1) of this section. For purposes of 
section 1274(e)(3), related party means a person related to the 
transferor within the meaning of section 267(b) or 707(b)(1).
    (ii) Qualified debt instrument. Under section 1274A(a), the test 
rate for a qualified debt instrument is no greater than 9 percent, 
compounded semiannually, or an equivalent rate based on an appropriate 
compounding period.
    (iii) Alternative test rate for short-term obligations--(A) 
Requirements. This paragraph (a)(2)(iii)(A) provides an alternative test 
rate under section 1274(d)(1)(D) for a debt instrument with a maturity 
of 1 year or less. This alternative test rate applies, however, only if 
the debt instrument provides for adequate stated interest using the 
alternative test rate, the issuer provides on the face of the debt 
instrument that the instrument qualifies as having adequate stated 
interest under section 1274(d)(1)(D), and the issuer and holder treat or 
agree to treat the instrument as having adequate stated interest.
    (B) Alternative test rate. For purposes of paragraph (a)(2)(iii)(A), 
the alternative test rate is the market yield on

[[Page 613]]

U.S. Treasury bills with the same maturity date as the debt instrument. 
If the same maturity date is not available, the market yield on U.S. 
Treasury bills that mature in the same week or month as the debt 
instrument is used. The alternative test rate is determined as of the 
date on which there is a binding written contract that substantially 
sets forth the terms under which the sale or exchange is ultimately 
consummated or as of the date of the sale or exchange, whichever date 
results in a lower rate. If there is no binding written contract, 
however, the alternative test rate is determined as of the date of the 
sale or exchange.
    (b) Applicable Federal rate. Except as otherwise provided in this 
section, the applicable Federal rate for a debt instrument is based on 
the term of the instrument (i.e., short-term, mid-term, or long-term). 
See section 1274(d)(1). The Internal Revenue Service publishes the 
applicable Federal rates for each month in the Internal Revenue Bulletin 
(see Sec.  601.601(d)(2)(ii) of this chapter). The applicable Federal 
rates are based on the yield to maturity of outstanding marketable 
obligations of the United States of similar maturities during the one 
month period ending on the 14th day of the month preceding the month for 
which the rates are applicable.
    (c) Special rules to determine the term of a debt instrument for 
purposes of determining the applicable Federal rate--(1) Installment 
obligation. If a debt instrument is an installment obligation (as 
defined in Sec.  1.1273-1(e)(1)), the term of the instrument is the 
instrument's weighted average maturity (as defined in Sec.  1.1273-
1(e)(3)).
    (2) Certain variable rate debt instruments--(i) In general. Except 
as otherwise provided in paragraph (c)(2)(ii) of this section, if a 
variable rate debt instrument (as defined in Sec.  1.1275-5(a)) provides 
for stated interest at a qualified floating rate (or rates), the term of 
the instrument is determined by reference to the longest interval 
between interest adjustment dates, or, if the variable rate debt 
instrument provides for a fixed rate, the interval between the issue 
date and the last day on which the fixed rate applies, if this interval 
is longer.
    (ii) Restrictions on adjustments. If, due to significant 
restrictions on variations in a qualified floating rate or the use of 
certain formulae pursuant to Sec.  1.1275-5(b)(2) (e.g., 15 percent of 
1-year LIBOR, plus 800 basis points), the rate in substance resembles a 
fixed rate, the applicable Federal rate is determined by reference to 
the term of the debt instrument.
    (3) Counting of either the issue date or the maturity date. The term 
of a debt instrument includes either the issue date or the maturity 
date, but not both dates.
    (4) Certain debt instruments that provide for principal payments 
uncertain as to time. If a debt instrument provides for principal 
payments that are fixed in total amount but uncertain as to time, the 
term of the instrument is determined by reference to the latest possible 
date on which a principal payment can be made or, in the case of an 
installment obligation, by reference to the longest weighted average 
maturity under any possible payment schedule.
    (d) Foreign currency loans. If all of the payments of a debt 
instrument are denominated in, or determined by reference to, a currency 
other than the U.S. dollar, the applicable Federal rate for the debt 
instrument is a foreign currency rate of interest that is analogous to 
the applicable Federal rate described in this section. For this purpose, 
an analogous rate of interest is a rate based on yields (with the 
appropriate compounding period) of the highest grade of outstanding 
marketable obligations denominated in such currency (excluding any 
obligations that benefit from special tax exemptions or preferential tax 
rates not available to debt instruments generally) with due 
consideration given to the maturities of the obligations.
    (e) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Variable rate debt instrument that limits the amount of 
increase and decrease in the rate. (i) Facts. On July 1, 1996, A sells 
nonpublicly traded property to B in return for a 5-year debt instrument 
that provides for interest to be paid on July 1 of each year, beginning 
on July 1, 1997, based on the prime rate of a local bank on that date. 
However, the interest rate cannot increase or decrease from one year to 
the next by more than .25 percentage points (25 basis points).

[[Page 614]]

    (ii) Significant restriction. The debt instrument is a variable rate 
debt instrument (as defined in Sec.  1.1275-5) that provides for stated 
interest at a qualified floating rate. Assume that based on all the 
facts and circumstances, the restriction is a significant restriction on 
the variations in the rate of interest. Under paragraph (c)(2)(ii) of 
this section, the applicable Federal rate is determined by reference to 
the term of the debt instrument, and the applicable Federal rate is the 
Federal mid-term rate.
    Example 2. Installment obligation. (i) Facts. On January 1, 1996, A 
sells nonpublicly traded property to B in exchange for a debt instrument 
that calls for a payment of $500,000 on January 1, 2001, and a payment 
of $1,000,000 on January 1, 2006. The debt instrument does not provide 
for any stated interest.
    (ii) Determination of term. The debt instrument is an installment 
obligation. Under paragraph (c)(1) of this section, the term of the debt 
instrument is its weighted average maturity (as defined in Sec.  1.1273-
1(e)(3)). The debt instrument's weighted average maturity is 8.33 years, 
which is the sum of (A) the ratio of the first payment to total payments 
(500,000/1,500,000), multiplied by the number of complete years from the 
issue date until the payment is due (5 years), and (B) the ratio of the 
second payment to total payments (1,000,000/1,500,000), multiplied by 
the number of complete years from the issue date until the second 
payment is due (10 years).
    (iii) Applicable Federal rate. Based on the calculation in paragraph 
(ii) of this example, the term of the debt instrument is treated as 8.33 
years. Consequently, the applicable Federal rate is the Federal mid-term 
rate.

[T.D. 8517, 59 FR 4823, Feb. 2, 1994]



Sec.  1.1274-5  Assumptions.

    (a) In general. Section 1274 does not apply to a debt instrument if 
the debt instrument is assumed, or property is taken subject to the debt 
instrument, in connection with a sale or exchange of property, unless 
the terms of the debt instrument, as part of the sale or exchange, are 
modified in a manner that would constitute an exchange under section 
1001.
    (b) Modifications of debt instruments--(1) In general. Except as 
provided in paragraph (b)(2) of this section, if a debt instrument is 
assumed, or property is taken subject to a debt instrument, in 
connection with a sale or exchange of property, the terms of the debt 
instrument are modified as part of the sale or exchange, and the 
modification triggers an exchange under section 1001, the modification 
is treated as a separate transaction taking place immediately before the 
sale or exchange and is attributed to the seller of the property. For 
purposes of this paragraph (b), a debt instrument is not considered to 
be modified as part of the sale or exchange unless the seller knew or 
had reason to know about the modification.
    (2) Election to treat buyer as modifying the debt instrument--(i) In 
general. Rather than having the rules in paragraph (b)(1) of this 
section apply, the seller and buyer may jointly elect to treat the 
transaction as one in which the buyer first assumed the original 
(unmodified) debt instrument and then subsequently modified the debt 
instrument. For this purpose, the modification is treated as a separate 
transaction taking place immediately after the sale or exchange.
    (ii) Time and manner of making the election. The buyer and seller 
make the election under paragraph (b)(2)(i) of this section by jointly 
signing a statement that includes the names, addresses, and taxpayer 
identification numbers of the seller and buyer, and a clear indication 
that the election is being made under paragraph (b)(2)(i) of this 
section. Both the buyer and the seller must sign this statement not 
later than the earlier of the last day (including extensions) for filing 
the Federal income tax return of the buyer or seller for the taxable 
year in which the sale or exchange of the property occurs. The buyer and 
seller should attach this signed statement (or a copy thereof) to their 
timely filed Federal income tax returns.
    (c) Wraparound indebtedness. For purposes of paragraph (a) of this 
section, the issuance of wraparound indebtedness is not considered an 
assumption.
    (d) Consideration attributable to assumed debt. If, as part of the 
consideration for the sale or exchange of property, the buyer assumes, 
or takes the property subject to, an indebtedness that was issued with 
OID (including a debt instrument issued in a prior sale or exchange to 
which section 1274 applied), the portion of the buyer's basis in the 
property and the seller's amount

[[Page 615]]

realized attributable to the debt instrument equals the adjusted issue 
price of the debt instrument as of the date of the sale or exchange.

[T.D. 8517, 59 FR 4824, Feb. 2, 1994]



Sec.  1.1274A-1  Special rules for certain transactions where stated 
principal amount does not exceed $2,800,000.

    (a) In general. Section 1274A allows the use of a lower test rate 
for purposes of sections 483 and 1274 in the case of a qualified debt 
instrument (as defined in section 1274A(b)) and, if elected by the 
borrower and the lender, the use of the cash receipts and disbursements 
method of accounting for interest on a cash method debt instrument (as 
defined in section 1274A(c)(2)). This section provides special rules for 
qualified debt instruments and cash method debt instruments.
    (b) Rules for both qualified and cash method debt instruments--(1) 
Sale-leaseback transactions. A debt instrument issued in a sale-
leaseback transaction (within the meaning of section 1274(e)) cannot be 
either a qualified debt instrument or a cash method debt instrument.
    (2) Debt instruments calling for contingent payments. A debt 
instrument that provides for contingent payments cannot be a qualified 
debt instrument unless it can be determined at the time of the sale or 
exchange that the maximum stated principal amount due under the debt 
instrument cannot exceed the amount specified in section 1274A(b). 
Similarly, a debt instrument that provides for contingent payments 
cannot be a cash method debt instrument unless it can be determined at 
the time of the sale or exchange that the maximum stated principal 
amount due under the debt instrument cannot exceed the amount specified 
in section 1274A(c)(2)(A).
    (3) Aggregation of transactions--(i) General rule. The aggregation 
rules of section 1274A(d)(1) are applied using a facts and circumstances 
test.
    (ii) Examples. The following examples illustrate the application of 
section 1274A(d)(1) and paragraph (b)(3)(i) of this section.

    Example 1. Aggregation of two sales to a single person. In two 
transactions evidenced by separate sales agreements, A sells undivided 
half interests in Blackacre to B. The sales are pursuant to a plan for 
the sale of a 100 percent interest in Blackacre to B. These sales or 
exchanges are part of a series of related transactions and, thus, are 
treated as a single sale for purposes of section 1274A.
    Example 2. Aggregation of two purchases by unrelated individuals. 
Pursuant to a plan, unrelated individuals X and Y purchase undivided 
half interests in Blackacre from A and subsequently contribute these 
interests to a partnership in exchange for equal interests in the 
partnership. These purchases are treated as part of the same transaction 
and, thus, are treated as a single sale for purposes of section 1274A.
    Example 3. Aggregation of sales made pursuant to a tender offer. 
Fifteen unrelated individuals own all of the stock of X Corporation. Y 
Corporation makes a tender offer to these 15 shareholders. The terms 
offered to each shareholder are identical. Shareholders holding a 
majority of the shares of X Corporation elect to tender their shares 
pursuant to Y Corporation's offer. These sales are part of the same 
transaction and, thus, are treated as a single sale for purposes of 
section 1274A.
    Example 4. No aggregation for separate sales of similar property to 
unrelated persons. Pursuant to a newspaper advertisement, X Corporation 
offers for sale similar condominiums in a single building. The prices of 
the units vary due to a variety of factors, but the financing terms 
offered by X Corporation to all buyers are identical. The units are 
purchased by unrelated buyers who decided whether to purchase units in 
the building at the price and on the terms offered by X Corporation, 
without regard to the actions of other buyers. Because each buyer acts 
individually, the sales are not part of the same transaction or a series 
of related transactions and, thus, are treated as separate sales.

    (4) Inflation adjustment of dollar amounts. Under section 
1274A(d)(2), the dollar amounts specified in sections 1274A(b) and 
1274A(c)(2)(A) are adjusted for inflation. The dollar amounts, adjusted 
for inflation, are published in the Internal Revenue Bulletin (see Sec.  
601.601(d)(2)(ii) of this chapter).
    (c) Rules for cash method debt instruments--(1) Time and manner of 
making cash method election. The borrower and lender make the election 
described in section 1274A(c)(2)(D) by jointly signing a statement that 
includes the names, addresses, and taxpayer identification numbers of 
the borrower and lender, a clear indication that an election is being 
made under section 1274A(c)(2),

[[Page 616]]

and a declaration that the debt instrument with respect to which the 
election is being made fulfills the requirements of a cash method debt 
instrument. Both the borrower and the lender must sign this statement 
not later than the earlier of the last day (including extensions) for 
filing the Federal income tax return of the borrower or lender for the 
taxable year in which the debt instrument is issued. The borrower and 
lender should attach this signed statement (or a copy thereof) to their 
timely filed Federal income tax returns.
    (2) Successors of electing parties. Except as otherwise provided in 
this paragraph (c)(2), the cash method election under section 1274A(c) 
applies to any successor of the electing lender or borrower. Thus, for 
any period after the transfer of a cash method debt instrument, the 
successor takes into account the interest (including unstated interest) 
on the instrument under the cash receipts and disbursements method of 
accounting. Nevertheless, if the lender (or any successor thereof) 
transfers the cash method debt instrument to a taxpayer who uses an 
accrual method of accounting, section 1272 rather than section 1274A(c) 
applies to the successor of the lender with respect to the debt 
instrument for any period after the date of the transfer. The borrower 
(or any successor thereof), however, remains on the cash receipts and 
disbursements method of accounting with respect to the cash method debt 
instrument.
    (3) Modified debt instrument. In the case of a debt instrument 
issued in a debt-for-debt exchange that qualifies as an exchange under 
section 1001, the debt instrument is eligible for the election to be a 
cash method debt instrument if the other prerequisites to making the 
election in section 1274A(c) are met. However, if a principal purpose of 
the modification is to defer interest income or deductions through the 
use of the election, then the debt instrument is not eligible for the 
election.
    (4) Debt incurred or continued to purchase or carry a cash method 
debt instrument. If a debt instrument is incurred or continued to 
purchase or carry a cash method debt instrument, rules similar to those 
under section 1277 apply to determine the timing of the interest 
deductions for the debt instrument. For purposes of the preceding 
sentence, rules similar to those under section 265(a)(2) apply to 
determine whether a debt instrument is incurred or continued to purchase 
or carry a cash method debt instrument.

[T.D. 8517, 59 FR 4824, Feb. 2, 1994]



Sec.  1.1275-1  Definitions.

    (a) Applicability. The definitions contained in this section apply 
for purposes of sections 163(e) and 1271 through 1275 and the 
regulations thereunder.
    (b) Adjusted issue price--(1) In general. The adjusted issue price 
of a debt instrument at the beginning of the first accrual period is the 
issue price. Thereafter, the adjusted issue price of the debt instrument 
is the issue price of the debt instrument--
    (i) Increased by the amount of OID previously includible in the 
gross income of any holder (determined without regard to section 
1272(a)(7) and section 1272(c)(1)); and
    (ii) Decreased by the amount of any payment previously made on the 
debt instrument other than a payment of qualified stated interest. See 
Sec.  1.1275-2(f) for rules regarding adjustments to adjusted issue 
price on a pro rata prepayment.
    (2) Bond issuance premium. If a debt instrument is issued with bond 
issuance premium (as defined in Sec.  1.163-13(c)), for purposes of 
determining the issuer's adjusted issue price, the adjusted issue price 
determined under paragraph (b)(1) of this section is also decreased by 
the amount of bond issuance premium previously allocable under Sec.  
1.163-13(d)(3).
    (3) Adjusted issue price for subsequent holders. For purposes of 
calculating OID accruals, acquisition premium, or market discount, a 
holder (other than a purchaser at original issuance) determines adjusted 
issue price in any manner consistent with the regulations under sections 
1271 through 1275.
    (c) OID. OID means original issue discount (as defined in section 
1273(a) and Sec.  1.1273-1).
    (d) Debt instrument. Except as provided in section 1275(a)(1)(B) 
(relating

[[Page 617]]

to certain annuity contracts; see paragraph (j) of this section), debt 
instrument means any instrument or contractual arrangement that 
constitutes indebtedness under general principles of Federal income tax 
law (including, for example, a certificate of deposit or a loan). 
Nothing in the regulations under sections 163(e), 483, and 1271 through 
1275, however, shall influence whether an instrument constitutes 
indebtedness for Federal income tax purposes. See Sec.  1.385-3 for 
rules that treat certain instruments that otherwise would be treated as 
indebtedness as stock for Federal tax purposes.
    (e) Tax-exempt obligations. For purposes of section 1275(a)(3)(B), 
exempt from tax means exempt from Federal income tax.
    (f) Issue. (1) Debt instruments issued on or after March 13, 2001.
    (2) Debt instruments issued before March 13, 2001.
    (3) Transition rule.
    (4) Cross-references for reopening and aggregation rules.
    (g) Debt instruments issued by a natural person. If an entity is a 
primary obligor under a debt instrument, the debt instrument is 
considered to be issued by the entity and not by a natural person even 
if a natural person is a co-maker and is jointly liable for the debt 
instrument's repayment. A debt instrument issued by a partnership is 
considered to be issued by the partnership as an entity even if the 
partnership is composed entirely of natural persons.
    (h) Publicly offered debt instrument. A debt instrument is publicly 
offered if it is part of an issue of debt instruments the initial 
offering of which--
    (1) Is registered with the Securities and Exchange Commission; or
    (2) Would be required to be registered under the Securities Act of 
1933 (15 U.S.C. 77a et seq.) but for an exemption from registration--
    (i) Under section 3 of the Securities Act of 1933 (relating to 
exempted securities);
    (ii) Under any law (other than the Securities Act of 1933) because 
of the identity of the issuer or the nature of the security; or
    (iii) Because the issue is intended for distribution to persons who 
are not United States persons.
    (i) [Reserved]
    (j) Life annuity exception under section 1275(a)(1)(B)(i)--(1) 
Purpose. Section 1275(a)(1)(B)(i) excepts an annuity contract from the 
definition of debt instrument if section 72 applies to the contract and 
the contract depends (in whole or in substantial part) on the life 
expectancy of one or more individuals. This paragraph (j) provides rules 
to ensure that an annuity contract qualifies for the exception in 
section 1275(a)(1)(B)(i) only in cases where the life contingency under 
the contract is real and significant.
    (2) General rule--(i) Rule. For purposes of section 
1275(a)(1)(B)(i), an annuity contract depends (in whole or in 
substantial part) on the life expectancy of one or more individuals only 
if--
    (A) The contract provides for periodic distributions made not less 
frequently than annually for the life (or joint lives) of an individual 
(or a reasonable number of individuals); and
    (B) The contract does not contain any terms or provisions that can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants).
    (ii) Terminology. For purposes of this paragraph (j):
    (A) Contract. The term contract includes all written or unwritten 
understandings among the parties as well as any person or persons acting 
in concert with one or more of the parties.
    (B) Annuitant. The term annuitant refers to the individual (or 
reasonable number of individuals) referred to in paragraph (j)(2)(i)(A) 
of this section.
    (C) Terminating death. The phrase terminating death refers to the 
annuitant death that can terminate periodic distributions under the 
contract. (See paragraph (j)(2)(i)(A) of this section.) For example, if 
a contract provides for periodic distributions until the later of the 
death of the last-surviving annuitant or the end of a term certain, the 
terminating death is the death of the last-surviving annuitant.
    (iii) Coordination with specific rules. Paragraphs (j) (3) through 
(7) of this

[[Page 618]]

section describe certain terms and conditions that can significantly 
reduce the probability that total distributions under the contract will 
increase commensurately with the longevity of the annuitant (or 
annuitants). If a term or provision is not specifically described in 
paragraphs (j) (3) through (7) of this section, the annuity contract 
must be tested under the general rule of paragraph (j)(2)(i) of this 
section to determine whether it depends (in whole or in substantial 
part) on the life expectancy of one or more individuals.
    (3) Availability of a cash surrender option--(i) Impact on life 
contingency. The availability of a cash surrender option can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants). Thus, the availability of any cash surrender 
option causes the contract to fail to be described in section 
1275(a)(1)(B)(i). A cash surrender option is available if there is 
reason to believe that the issuer (or a person acting in concert with 
the issuer) will be willing to terminate or purchase all or a part of 
the annuity contract by making one or more payments of cash or property 
(other than an annuity contract described in this paragraph (j)).
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (j)(3):

    Example 1. (i) Facts. On March 1, 1998, X issues a contract to A for 
cash. The contract provides that, effective on any date chosen by A (the 
annuity starting date), X will begin equal monthly distributions for A's 
life. The amount of each monthly distribution will be no less than an 
amount based on the contract's account value as of the annuity starting 
date, A's age on that date, and permanent purchase rate guarantees 
contained in the contract. The contract also provides that, at any time 
before the annuity starting date, A may surrender the contract to X for 
the account value less a surrender charge equal to a declining 
percentage of the account value. For this purpose, the initial account 
value is equal to the cash invested. Thereafter, the account value 
increases annually by at least a minimum guaranteed rate.
    (ii) Analysis. The ability to obtain the account value less the 
surrender charge, if any, is a cash surrender option. This ability can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with A's longevity. Thus, the 
contract fails to be described in section 1275(a)(1)(B)(i).
    Example 2. (i) Facts. On March 1, 1998, X issues a contract to B for 
cash. The contract provides that beginning on March 1, 1999, X will 
distribute to B a fixed amount of cash each month for B's life. Based on 
X's advertisements, marketing literature, or illustrations or on oral 
representations by X's sales personnel, there is reason to believe that 
an affiliate of X stands ready to purchase B's contract for its commuted 
value.
    (ii) Analysis. Because there is reason to believe that an affiliate 
of X stands ready to purchase B's contract for its commuted value, a 
cash surrender option is available within the meaning of paragraph 
(j)(3)(i) of this section. This availability can significantly reduce 
the probability that total distributions under the contract will 
increase commensurately with B's longevity. Thus, the contract fails to 
be described in section 1275(a)(1)(B)(i).

    (4) Availability of a loan secured by the contract--(i) Impact on 
life contingency. The availability of a loan secured by the contract can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants). Thus, the availability of any such loan 
causes the contract to fail to be described in section 1275(a)(1)(B)(i). 
A loan secured by the contract is available if there is reason to 
believe that the issuer (or a person acting in concert with the issuer) 
will be willing to make a loan that is directly or indirectly secured by 
the annuity contract.
    (ii) Example. The following example illustrates the rules of this 
paragraph (j)(4):

    Example: (i) Facts. On March 1, 1998, X issues a contract to C for 
$100,000. The contract provides that, effective on any date chosen by C 
(the annuity starting date), X will begin equal monthly distributions 
for C's life. The amount of each monthly distribution will be no less 
than an amount based on the contract's account value as of the annuity 
starting date, C's age on that date, and permanent purchase rate 
guarantees contained in the contract. From marketing literature 
circulated by Y, there is reason to believe that, at any time before the 
annuity starting date, C may pledge the contract to borrow up to $75,000 
from Y. Y is acting in concert with X.
    (ii) Analysis. Because there is reason to believe that Y, a person 
acting in concert with

[[Page 619]]

X, is willing to lend money against C's contract, a loan secured by the 
contract is available within the meaning of paragraph (j)(4)(i) of this 
section. This availability can significantly reduce the probability that 
total distributions under the contract will increase commensurately with 
C's longevity. Thus, the contract fails to be described in section 
1275(a)(1)(B)(i).

    (5) Minimum payout provision--(i) Impact on life contingency. The 
existence of a minimum payout provision can significantly reduce the 
probability that total distributions under the contract will increase 
commensurately with the longevity of the annuitant (or annuitants). 
Thus, the existence of any minimum payout provision causes the contract 
to fail to be described in section 1275(a)(1)(B)(i).
    (ii) Definition of minimum payout provision. A minimum payout 
provision is a contractual provision (for example, an agreement to make 
distributions over a term certain) that provides for one or more 
distributions made--
    (A) After the terminating death under the contract; or
    (B) By reason of the death of any individual (including 
distributions triggered by or increased by terminal or chronic illness, 
as defined in section 101(g)(1) (A) and (B)).
    (iii) Exceptions for certain minimum payouts--(A) Recovery of 
consideration paid for the contract. Notwithstanding paragraphs 
(j)(2)(i)(A) and (j)(5)(i) of this section, a contract does not fail to 
be described in section 1275(a)(1)(B)(i) merely because it provides 
that, after the terminating death, there will be one or more 
distributions that, in the aggregate, do not exceed the consideration 
paid for the contract less total distributions previously made under the 
contract.
    (B) Payout for one-half of life expectancy. Notwithstanding 
paragraphs (j)(2)(i)(A) and (j)(5)(i) of this section, a contract does 
not fail to be described in section 1275(a)(1)(B)(i) merely because it 
provides that, if the terminating death occurs after the annuity 
starting date, distributions under the contract will continue to be made 
after the terminating death until a date that is no later than the 
halfway date. This exception does not apply unless the amounts 
distributed in each contract year will not exceed the amounts that would 
have been distributed in that year if the terminating death had not 
occurred until the expected date of the terminating death, determined 
under paragraph (j)(5)(iii)(C) of this section.
    (C) Definition of halfway date. For purposes of this paragraph 
(j)(5)(iii), the halfway date is the date halfway between the annuity 
starting date and the expected date of the terminating death, determined 
as of the annuity starting date, with respect to all then-surviving 
annuitants. The expected date of the terminating death must be 
determined by reference to the applicable mortality table prescribed 
under section 417(e)(3)(A)(ii)(I).
    (iv) Examples. The following examples illustrate the rules of this 
paragraph (j)(5):

    Example 1. (i) Facts. On March 1, 1998, X issues a contract to D for 
cash. The contract provides that, effective on any date D chooses (the 
annuity starting date), X will begin equal monthly distributions for the 
greater of D's life or 10 years, regardless of D's age as of the annuity 
starting date. The amount of each monthly distribution will be no less 
than an amount based on the contract's account value as of the annuity 
starting date, D's age on that date, and permanent purchase rate 
guarantees contained in the contract.
    (ii) Analysis. A minimum payout provision exists because, if D dies 
within 10 years of the annuity starting date, one or more distributions 
will be made after D's death. The minimum payout provision does not 
qualify for the exception in paragraph (j)(5)(iii)(B) of this section 
because D may defer the annuity starting date until his remaining life 
expectancy is less than 20 years. If, on the annuity starting date, D's 
life expectancy is less than 20 years, the minimum payout period (10 
years) will last beyond the halfway date. The minimum payout provision, 
therefore, can significantly reduce the probability that total 
distributions under the contract will increase commensurately with D's 
longevity. Thus, the contract fails to be described in section 
1275(a)(1)(B)(i).
    Example 2. (i) Facts. The facts are the same as in Example 1 of this 
paragraph (j)(5)(iv) except that the monthly distributions will last for 
the greater of D's life or a term certain. D may choose the length of 
the term certain subject to the restriction that, on the annuity 
starting date, the term certain must not exceed one-half of D's life 
expectancy as of the annuity starting date. The contract also does not 
provide for any adjustment in the amount of distributions by reason of 
the death of D or any other individual, except for a refund of D's 
aggregate premium payments

[[Page 620]]

less the sum of all prior distributions under the contract.
    (ii) Analysis. The minimum payout provision qualifies for the 
exception in paragraph (j)(5)(iii)(B) of this section because 
distributions under the minimum payout provision will not continue past 
the halfway date and the contract does not provide for any adjustments 
in the amount of distributions by reason of the death of D or any other 
individual, other than a guaranteed death benefit described in paragraph 
(j)(5)(iii)(A) of this section. Accordingly, the existence of this 
minimum payout provision does not prevent the contract from being 
described in section 1275(a)(1)(B)(i).

    (6) Maximum payout provision--(i) Impact on life contingency. The 
existence of a maximum payout provision can significantly reduce the 
probability that total distributions under the contract will increase 
commensurately with the longevity of the annuitant (or annuitants). 
Thus, the existence of any maximum payout provision causes the contract 
to fail to be described in section 1275(a)(1)(B)(i).
    (ii) Definition of maximum payout provision. A maximum payout 
provision is a contractual provision that provides that no distributions 
under the contract may be made after some date (the termination date), 
even if the terminating death has not yet occurred.
    (iii) Exception. Notwithstanding paragraphs (j)(2)(i)(A) and 
(j)(6)(i) of this section, an annuity contract does not fail to be 
described in section 1275(a)(1)(B)(i) merely because the contract 
contains a maximum payout provision, provided that the period of time 
from the annuity starting date to the termination date is at least twice 
as long as the period of time from the annuity starting date to the 
expected date of the terminating death, determined as of the annuity 
starting date, with respect to all then-surviving annuitants. The 
expected date of the terminating death must be determined by reference 
to the applicable mortality table prescribed under section 
417(e)(3)(A)(ii)(I).
    (iv) Example. The following example illustrates the rules of this 
paragraph (j)(6):

    Example: (i) Facts. On March 1, 1998, X issues a contract to E for 
cash. The contract provides that beginning on April 1, 1998, X will 
distribute to E a fixed amount of cash each month for E's life but that 
no distributions will be made after April 1, 2018. On April 1, 1998, E's 
life expectancy is 9 years.
    (ii) Analysis. A maximum payout provision exists because if E 
survives beyond April 1, 2018, E will receive no further distributions 
under the contract. The period of time from the annuity starting date 
(April 1, 1998) to the termination date (April 1, 2018) is 20 years. 
Because this 20-year period is more than twice as long as E's life 
expectancy on April 1, 1998, the maximum payout provision qualifies for 
the exception in paragraph (j)(6)(iii) of this section. Accordingly, the 
existence of this maximum payout provision does not prevent the contract 
from being described in section 1275(a)(1)(B)(i).

    (7) Decreasing payout provision--(i) General rule. If the amount of 
distributions during any contract year (other than the last year during 
which distributions are made) may be less than the amount of 
distributions during the preceding year, this possibility can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants). Thus, the existence of this possibility 
causes the contract to fail to be described in section 1275(a)(1)(B)(i).
    (ii) Exception for certain variable distributions. Notwithstanding 
paragraph (j)(7)(i) of this section, if an annuity contract provides 
that the amount of each distribution must increase and decrease in 
accordance with investment experience, cost of living indices, or 
similar fluctuating criteria, then the possibility that the amount of a 
distribution may decrease for this reason does not significantly reduce 
the probability that the distributions under the contract will increase 
commensurately with the longevity of the annuitant (or annuitants).
    (iii) Examples. The following examples illustrate the rules of this 
paragraph (j)(7):

    Example 1. (i) Facts. On March 1, 1998, X issues a contract to F for 
$100,000. The contract provides that beginning on March 1, 1999, X will 
make distributions to F each year until F's death. Prior to March 1, 
2009, distributions are to be made at a rate of $12,000 per year. 
Beginning on March 1, 2009, distributions are to be made at a rate of 
$3,000 per year.
    (ii) Analysis. If F is alive in 2009, the amount distributed in 2009 
($3,000) will be less than the amount distributed in 2008 ($12,000). The 
exception in paragraph (j)(7)(ii) of this section does not apply. The 
decrease

[[Page 621]]

in the amount of any distributions made on or after March 1, 2009, can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with F's longevity. Thus, the 
contract fails to be described in section 1275(a)(1)(B)(i).
    Example 2. (i) Facts. On March 1, 1998, X issues a contract to G for 
cash. The contract provides that, effective on any date G chooses (the 
annuity starting date), X will begin monthly distributions to G for G's 
life. Prior to the annuity starting date, the account value of the 
contract reflects the investment return, including changes in the market 
value, of an identifiable pool of assets. When G chooses the annuity 
starting date, G must also choose whether the distributions are to be 
fixed or variable. If fixed, the amount of each monthly distribution 
will remain constant at an amount that is no less than an amount based 
on the contract's account value as of the annuity starting date, G's age 
on that date, and permanent purchase rate guarantees contained in the 
contract. If variable, the monthly distributions will fluctuate to 
reflect the investment return, including changes in the market value, of 
the pool of assets. The monthly distributions under the contract will 
not otherwise decline from year to year.
    (ii) Analysis. Because the only possible year-to-year declines in 
annuity distributions are described in paragraph (j)(7)(ii) of this 
section, the possibility that the amount of distributions may decline 
from the previous year does not reduce the probability that total 
distributions under the contract will increase commensurately with G's 
longevity. Thus, the potential fluctuation in the annuity distributions 
does not cause the contract to fail to be described in section 
1275(a)(1)(B)(i).

    (8) Effective dates--(i) In general. Except as provided in paragraph 
(j)(8) (ii) and (iii) of this section, this paragraph (j) is applicable 
for interest accruals on or after February 9, 1998 on annuity contracts 
held on or after February 9, 1998.
    (ii) Grandfathered contracts. This paragraph (j) does not apply to 
an annuity contract that was purchased before April 7, 1995. For 
purposes of this paragraph (j)(8), if any additional investment in such 
a contract is made on or after April 7, 1995, and the additional 
investment is not required to be made under a binding contractual 
obligation that was entered into before April 7, 1995, then the 
additional investment is treated as the purchase of a contract after 
April 7, 1995.
    (iii) Contracts consistent with the provisions of FI-33-94, 
published at 1995-1 C.B. 920. See Sec.  601.601(d)(2)(ii)(b) of this 
chapter. This paragraph (j) does not apply to a contract purchased on or 
after April 7, 1995, and before February 9, 1998, if all payments under 
the contract are periodic payments that are made at least annually for 
the life (or lives) of one or more individuals, do not increase at any 
time during the term of the contract, and are part of a series of 
distributions that begins within one year of the date of the initial 
investment in the contract. An annuity contract that is otherwise 
described in the preceding sentence does not fail to be described 
therein merely because it also provides for a payment (or payments) made 
by reason of the death of one or more individuals.
    (k) Exception under section 1275(a)(1)(B)(ii) for annuities issued 
by an insurance company subject to tax under subchapter L of the 
Internal Revenue Code--(1) Rule. For purposes of section 
1275(a)(1)(B)(ii), an annuity contract issued by a foreign insurance 
company is considered as issued by an insurance company subject to tax 
under subchapter L if the insurance company is subject to tax under 
subchapter L with respect to income earned on the annuity contract.
    (2) Examples. The following examples illustrate the rule of 
paragraph (k)(1) of this section. Each example assumes that the annuity 
contract is a contract to which section 72 applies and was issued in a 
transaction where there is no consideration other than cash or another 
qualifying annuity contract, pursuant to the exercise of an election 
under an insurance contract by a beneficiary thereof on the death of the 
insured party, or in a transaction involving a qualified pension or 
employee benefit plan. The examples are as follows:

    Example 1. Company X is an insurance company that is organized, 
licensed and doing business in Country Y. Company X does not have a U.S. 
trade or business and is not, under section 842, subject to U.S. income 
tax under subchapter L with respect to income earned on annuity 
contracts. A, a U.S. taxpayer, purchases an annuity contract from 
Company X in Country Y. The annuity contract is not excepted from the 
definition of a debt instrument by section 1275(a)(1)(B)(ii).

[[Page 622]]

    Example 2. The facts are the same as in Example 1, except that 
Company X has a U.S. trade or business. A purchased the annuity from 
Company X's U.S. trade or business. Under section 842(a), Company X is 
subject to tax under subchapter L with respect to income earned on the 
annuity contract. Under these facts, the annuity contract is excepted 
from the definition of a debt instrument by section 1275(a)(1)(B)(ii).
    Example 3. The facts are the same as in Example 2, except that there 
is a tax treaty between Country Y and the United States. Company X is a 
resident of Country Y for purposes of the U.S.-Country Y tax treaty. 
Company X's activities in the U.S. do not constitute a permanent 
establishment under the U.S.-Country Y tax treaty. Because Company X 
does not have a U.S. permanent establishment, Company X is not subject 
to tax under subchapter L with respect to income earned on the annuity 
contract. Thus, the annuity contract is not excepted from the definition 
of a debt instrument by section 1275(a)(1)(B)(ii).
    Example 4. The facts are the same as in Example 1, except that 
Company X is a foreign insurance corporation controlled by a U.S. 
shareholder. Company X does not make an election 1 under section 953(d) 
to be treated as a domestic corporation. The controlling U.S. 
shareholder is required under sections 953 and 954 to include income 
earned on the annuity contract in its taxable income under subpart F. 
However, Company X is not subject to tax under subchapter L with respect 
to income earned on the annuity contract. Thus, the annuity contract is 
not excepted from the definition of a debt instrument by section 
1275(a)(1)(B)(ii).
    Example 5. The facts are the same as in Example 4, except that 
Company X properly elects under section 953(d) to be treated as a 
domestic corporation. By reason of its election, Company X is subject to 
tax under subchapter L with respect to income earned on the annuity 
contract. Thus, the annuity contract is excepted from the definition of 
a debt instrument by section 1275(a)(1)(B)(ii).

    (3) Effective date. This paragraph (k) is applicable for interest 
accruals on or after June 6, 2002. This paragraph (k) does not apply to 
an annuity contract that was purchased before January 12, 2001. For 
purposes of this paragraph (k), if any additional investment in a 
contract purchased before January 12, 2001, is made on or after January 
12, 2001, and the additional investment is not required to be made under 
a binding written contractual obligation that was entered into before 
that date, then the additional investment is treated as the purchase of 
a contract after January 12, 2001.

[T.D. 8517, 59 FR 4825, Feb. 2, 1994, as amended by T.D. 8746, 62 FR 
68183, Dec. 31, 1997; T.D. 8754, 63 FR 1057, Jan. 8, 1998; T.D. 8934, 66 
FR 2815, Jan. 12, 2001; T.D. 8993, 67 FR 30548, May 7, 2002; T.D. 9790, 
81 FR 72984, Oct. 21, 2016: T.D. 9880, 84 FR 59302, Nov. 4, 2019]



Sec.  1.1275-2  Special rules relating to debt instruments.

    (a) Payment ordering rule--(1) In general. Except as provided in 
paragraph (a)(2) of this section, each payment under a debt instrument 
is treated first as a payment of OID to the extent of the OID that has 
accrued as of the date the payment is due and has not been allocated to 
prior payments, and second as a payment of principal. Thus, no portion 
of any payment is treated as prepaid interest.
    (2) Exceptions. The rule in paragraph (a)(1) of this section does 
not apply to--
    (i) A payment of qualified stated interest;
    (ii) A payment of points deductible under section 461(g)(2), in the 
case of the issuer;
    (iii) A pro rata prepayment described in paragraph (f)(2) of this 
section; or
    (iv) A payment of additional interest or a similar charge provided 
with respect to amounts that are not paid when due.
    (b) Debt instruments distributed by corporations with respect to 
stock--(1) Treatment of distribution. For purposes of determining the 
issue price of a debt instrument distributed by a corporation with 
respect to its stock, the instrument is treated as issued by the 
corporation for property. See section 1275(a)(4). Thus, under section 
1273(b)(3), the issue price of a distributed debt instrument that is 
traded on an established market is its fair market value. The issue 
price of a distributed debt instrument that is not traded on an 
established market is determined under section 1274 or section 
1273(b)(4).
    (2) Issue date. The issue date of a debt instrument distributed by a 
corporation with respect to its stock is the date of the distribution.
    (c) Aggregation of debt instruments--(1) General rule. Except as 
provided in paragraph (c)(2) of this section, debt instruments issued in 
connection with

[[Page 623]]

the same transaction or related transactions (determined based on all 
the facts and circumstances) are treated as a single debt instrument for 
purposes of sections 1271 through 1275 and the regulations thereunder. 
This rule ordinarily applies only to debt instruments of a single issuer 
that are issued to a single holder. The Commissioner may, however, 
aggregate debt instruments that are issued by more than one issuer or 
that are issued to more than one holder if the debt instruments are 
issued in an arrangement that is designed to avoid the aggregation rule 
(e.g., debt instruments issued by or to related parties or debt 
instruments originally issued to different holders with the 
understanding that the debt instruments will be transferred to a single 
holder).
    (2) Exception if separate issue price established. Paragraph (c)(1) 
of this section does not apply to a debt instrument if--
    (i) The debt instrument is part of an issue a substantial portion of 
which is traded on an established market within the meaning of Sec.  
1.1273-2(f); or
    (ii) The debt instrument is part of an issue a substantial portion 
of which is issued for money (or for property traded on an established 
market within the meaning of Sec.  1.1273-2(f)) to parties who are not 
related to the issuer or holder and who do not purchase other debt 
instruments of the same issuer in connection with the same transaction 
or related transactions.
    (3) Special rule for debt instruments that provide for the issuance 
of additional debt instruments. If, under the terms of a debt instrument 
(the original debt instrument), the holder may receive one or more 
additional debt instruments of the issuer, the additional debt 
instrument or instruments are aggregated with the original debt 
instrument. Thus, the payments made pursuant to an additional debt 
instrument are treated as made on the original debt instrument, and the 
distribution by the issuer of the additional debt instrument is not 
considered to be a payment made on the original debt instrument. This 
paragraph (c)(3) applies regardless of whether the right to receive an 
additional debt instrument is fixed as of the issue date or is 
contingent upon subsequent events. See Sec.  1.1272-1(c) for the 
treatment of certain rights to issue additional debt instruments in lieu 
of cash payments.
    (4) Examples. The following examples illustrate the rules set forth 
in paragraphs (c)(1) and (c)(2) of this section.

    Example 1. Exception for debt instruments issued separately to other 
purchasers. On January 1, 1995, Corporation M issues two series of 
bonds, Series A and Series B. The two series are sold for cash and have 
different terms. Although some holders purchase bonds from both series, 
a substantial portion of the bonds is issued to different holders. H 
purchases bonds from both series. Under the exception in paragraph 
(c)(2)(ii) of this section, the Series A and Series B bonds purchased by 
H are not aggregated.
    Example 2. Tiered REMICs. Z forms a dual tier real estate mortgage 
investment conduit (REMIC). In the dual tier structure, Z forms REMIC A 
to acquire a pool of real estate mortgages and to issue a residual 
interest and several classes of regular interests. Contemporaneously, Z 
forms REMIC B to acquire as qualified mortgages all of the regular 
interests in REMIC A. REMIC B issues several classes of regular 
interests and a residual interest, and Z sells all of those interests to 
unrelated parties in a public offering. Under the general rule set out 
in paragraph (c)(1) of this section, all of the regular interests issued 
by REMIC A and held by REMIC B are treated as a single debt instrument 
for purposes of sections 1271 through 1275.

    (d) Special rules for Treasury securities--(1) Issue price and issue 
date. The issue price of an issue of Treasury securities is the average 
price of the securities sold. The issue date of an issue of Treasury 
securities is the first settlement date on which a substantial amount of 
the securities in the issue is sold. For an issue of Treasury securities 
sold from November 1, 1998, to March 13, 2001, the issue price of the 
issue is the price of the securities sold at auction.
    (2) Reopenings of Treasury securities--(i) Treatment of additional 
Treasury securities. Notwithstanding Sec.  1.1275-1(f), additional 
Treasury securities issued in a qualified reopening are part of the same 
issue as the original Treasury securities. As a result, the additional 
Treasury securities have the same issue price, issue date, and (with 
respect to holders) the same adjusted issue price as the original 
Treasury securities. This paragraph (d)(2) applies

[[Page 624]]

to qualified reopenings that occur on or after March 25, 1992.
    (ii) Definitions--(A) Additional Treasury securities. Additional 
Treasury securities are Treasury securities with terms that are in all 
respects identical to the terms of the original Treasury securities.
    (B) Original Treasury securities. Original Treasury securities are 
securities comprising any issue of outstanding Treasury securities.
    (C) Qualified reopening--reopenings on or after March 13, 2001. For 
a reopening of Treasury securities that occurs on or after March 13, 
2001, a qualified reopening is a reopening that occurs not more than one 
year after the original Treasury securities were first issued to the 
public or, under paragraph (k)(3)(iii) of this section, a reopening in 
which the additional Treasury securities are issued with no more than a 
de minimis amount of OID. For a reopening of Treasury securities that 
occurs on or after September 13, 2012, a qualified reopening also is a 
reopening of Treasury securities that is described in paragraph 
(k)(3)(v) of this section.
    (D) Qualified reopening--reopenings before March 13, 2001. For a 
reopening of Treasury securities that occurs before March 13, 2001, a 
qualified reopening is a reopening that occurs not more than one year 
after the original Treasury securities were first issued to the public. 
However, for a reopening of Treasury securities (other than Treasury 
Inflation-Indexed Securities) that occurred prior to November 5, 1999, a 
qualified reopening is a reopening of Treasury securities that satisfied 
the preceding sentence and that was intended to alleviate an acute, 
protracted shortage of the original Treasury securities.
    (e) Disclosure of certain information to holders. Certain provisions 
of the regulations under section 163(e) and sections 1271 through 1275 
provide that the issuer's determination of an item controls the holder's 
treatment of the item. In such a case, the issuer must provide the 
relevant information to the holder in a reasonable manner. For example, 
the issuer may provide the name or title and either the address or 
telephone number of a representative of the issuer who will make 
available to holders upon request the information required for holders 
to comply with these provisions of the regulations.
    (f) Treatment of pro rata prepayments--(1) Treatment as retirement 
of separate debt instrument. A pro rata prepayment is treated as a 
payment in retirement of a portion of a debt instrument, which may 
result in a gain or loss to the holder. Generally, the gain or loss is 
calculated by assuming that the original debt instrument consists of two 
instruments, one that is retired and one that remains outstanding. The 
adjusted issue price, holder's adjusted basis, and accrued but unpaid 
OID of the original debt instrument, determined immediately before the 
pro rata prepayment, are allocated between these two instruments based 
on the portion of the instrument that is treated as retired by the pro 
rata prepayment.
    (2) Definition of pro rata prepayment. For purposes of paragraph 
(f)(1) of this section, a pro rata prepayment is a payment on a debt 
instrument made prior to maturity that--
    (i) Is not made pursuant to the instrument's payment schedule 
(including a payment schedule determined under Sec.  1.1272-1(c)); and
    (ii) Results in a substantially pro rata reduction of each payment 
remaining to be paid on the instrument.
    (g) Anti-abuse rule--(1) In general. If a principal purpose in 
structuring a debt instrument or engaging in a transaction is to achieve 
a result that is unreasonable in light of the purposes of section 
163(e), sections 1271 through 1275, or any related section of the Code, 
the Commissioner can apply or depart from the regulations under the 
applicable sections as necessary or appropriate to achieve a reasonable 
result. For example, if this paragraph (g) applies to a debt instrument 
that provides for a contingent payment, the Commissioner can treat the 
contingency as if it were a separate position. See also Sec.  1.988-
2(b)(18) for debt instruments with payments denominated in (or 
determined by reference to) a currency other than the taxpayer's 
functional currency.
    (2) Unreasonable result. Whether a result is unreasonable is 
determined

[[Page 625]]

based on all the facts and circumstances. In making this determination, 
a significant fact is whether the treatment of the debt instrument is 
expected to have a substantial effect on the issuer's or a holder's U.S. 
tax liability. In the case of a contingent payment debt instrument, 
another significant fact is whether the result is obtainable without the 
application of Sec.  1.1275-4 and any related provisions (e.g., if the 
debt instrument and the contingency were entered into separately). A 
result will not be considered unreasonable, however, in the absence of 
an expected substantial effect on the present value of a taxpayer's tax 
liability.
    (3) Examples. The following examples illustrate the provisions of 
this paragraph (g):

    Example 1. A issues a current-pay, increasing-rate note that 
provides for an early call option. Although the option is deemed 
exercised on the call date under Sec.  1.1272-1(c)(5), the option is not 
expected to be exercised by A. In addition, a principal purpose of 
including the option in the terms of the note is to limit the amount of 
interest income includible by the holder in the period prior to the call 
date by virtue of the option rules in Sec.  1.1272-1(c)(5). Moreover, 
the application of the option rules is expected to substantially reduce 
the present value of the holder's tax liability. Based on these facts, 
the application of Sec.  1.1272-1(c)(5) produces an unreasonable result. 
Therefore, under this paragraph (g), the Commissioner can apply the 
regulations (in whole or in part) to the note without regard to Sec.  
1.1272-1(c)(5).
    Example 2. C, a foreign corporation not subject to U.S. taxation, 
issues to a U.S. holder a debt instrument that provides for a contingent 
payment. The debt instrument is issued for cash and is subject to the 
noncontingent bond method in Sec.  1.1275-4(b). Six months after 
issuance, C and the holder modify the debt instrument so that there is a 
deemed reissuance of the instrument under section 1001. The new debt 
instrument is subject to the rules of Sec.  1.1275-4(c) rather than 
Sec.  1.1275-4(b). The application of Sec.  1.1275-4(c) is expected to 
substantially reduce the present value of the holder's tax liability as 
compared to the application of Sec.  1.1275-4(b). In addition, a 
principal purpose of the modification is to substantially reduce the 
present value of the holder's tax liability through the application of 
Sec.  1.1275-4(c). Based on these facts, the application of Sec.  
1.1275-4(c) produces an unreasonable result. Therefore, under this 
paragraph (g), the Commissioner can apply the noncontingent bond method 
to the modified debt instrument.
    Example 3. D issues a convertible debt instrument rather than an 
economically equivalent investment unit consisting of a debt instrument 
and a warrant. The convertible debt instrument is issued at par and 
provides for annual payments of interest. D issues the convertible debt 
instrument rather than the investment unit so that the debt instrument 
would not have OID. See Sec.  1.1273-2(j). In general, this is a 
reasonable result in light of the purposes of the applicable statutes. 
Therefore, the Commissioner generally will not use the authority under 
this paragraph (g) to depart from the application of Sec.  1.1273-2(j) 
in this case.

    (4) Effective date. This paragraph (g) applies to debt instruments 
issued on or after August 13, 1996.
    (h) Remote and incidental contingencies--(1) In general. This 
paragraph (h) applies to a debt instrument if one or more payments on 
the instrument are subject to either a remote or incidental contingency. 
Whether a contingency is remote or incidental is determined as of the 
issue date of the debt instrument, including any date there is a deemed 
reissuance of the debt instrument under paragraph (h)(6) (ii) or (j) of 
this section or Sec.  1.1272-1(c)(6). Except as otherwise provided, the 
treatment of the contingency under this paragraph (h) applies for all 
purposes of sections 163(e) (other than sections 163(e)(5)) and 1271 
through 1275 and the regulations thereunder. For purposes of this 
paragraph (h), the possibility of impairment of a payment by insolvency, 
default, or similar circumstances is not a contingency.
    (2) Remote contingencies. A contingency is remote if there is a 
remote likelihood either that the contingency will occur or that the 
contingency will not occur. If there is a remote likelihood that the 
contingency will occur, it is assumed that the contingency will not 
occur. If there is a remote likelihood that the contingency will not 
occur, it is assumed that the contingency will occur.
    (3) Incidental contingencies--(i) Contingency relating to amount. A 
contingency relating to the amount of a payment is incidental if, under 
all reasonably expected market conditions, the potential amount of the 
payment is insignificant relative to the total expected amount of the 
remaining payments on

[[Page 626]]

the debt instrument. If a payment on a debt instrument is subject to an 
incidental contingency described in this paragraph (h)(3)(i), the 
payment is ignored until the payment is made. However, see paragraph 
(h)(6)(i)(B) of this section for the treatment of the debt instrument if 
a change in circumstances occurs prior to the date the payment is made.
    (ii) Contingency relating to time. A contingency relating to the 
timing of a payment is incidental if, under all reasonably expected 
market conditions, the potential difference in the timing of the payment 
(from the earliest date to the latest date) is insignificant. If a 
payment on a debt instrument is subject to an incidental contingency 
described in this paragraph (h)(3)(ii), the payment is treated as made 
on the earliest date that the payment could be made pursuant to the 
contingency. If the payment is not made on this date, a taxpayer makes 
appropriate adjustments to take into account the delay in payment. 
However, see paragraph (h)(6)(i)(C) of this section for the treatment of 
the debt instrument if the delay is not insignificant.
    (4) Aggregation rule. For purposes of paragraph (h)(2) of this 
section, if a debt instrument provides for multiple contingencies each 
of which has a remote likelihood of occurring but, when all of the 
contingencies are considered together, there is a greater than remote 
likelihood that at least one of the contingencies will occur, none of 
the contingencies is treated as a remote contingency. For purposes of 
paragraph (h)(3)(i) of this section, if a debt instrument provides for 
multiple contingencies each of which is incidental but the potential 
total amount of all of the payments subject to the contingencies is not, 
under reasonably expected market conditions, insignificant relative to 
the total expected amount of the remaining payments on the debt 
instrument, none of the contingencies is treated as incidental.
    (5) Consistency rule. For purposes of paragraphs (h) (2) and (3) of 
this section, the issuer's determination that a contingency is either 
remote or incidental is binding on all holders. However, the issuer's 
determination is not binding on a holder that explicitly discloses that 
its determination is different from the issuer's determination. Unless 
otherwise prescribed by the Commissioner, the disclosure must be made on 
a statement attached to the holder's timely filed Federal income tax 
return for the taxable year that includes the acquisition date of the 
debt instrument. See Sec.  1.1275-2(e) for rules relating to the 
issuer's obligation to disclose certain information to holders.
    (6) Subsequent adjustments--(i) Applicability. This paragraph (h)(6) 
applies to a debt instrument when there is a change in circumstances. 
For purposes of the preceding sentence, there is a change in 
circumstances if--
    (A) A remote contingency actually occurs or does not occur, contrary 
to the assumption made in paragraph (h)(2) of this section;
    (B) A payment subject to an incidental contingency described in 
paragraph (h)(3)(i) of this section becomes fixed in an amount that is 
not insignificant relative to the total expected amount of the remaining 
payments on the debt instrument; or
    (C) A payment subject to an incidental contingency described in 
paragraph (h)(3)(ii) of this section becomes fixed such that the 
difference between the assumed payment date and the due date of the 
payment is not insignificant.
    (ii) In general. If a change in circumstances occurs, solely for 
purposes of sections 1272 and 1273, the debt instrument is treated as 
retired and then reissued on the date of the change in circumstances for 
an amount equal to the instrument's adjusted issue price on that date.
    (iii) Contingent payment debt instruments. Notwithstanding paragraph 
(h)(6)(ii) of this section, in the case of a contingent payment debt 
instrument subject to Sec.  1.1275-4, if a change in circumstances 
occurs, no retirement or reissuance is treated as occurring, but any 
payment that is fixed as a result of the change in circumstances is 
governed by the rules in Sec.  1.1275-4 that apply when the amount of a 
contingent payment becomes fixed.
    (7) Effective date. This paragraph (h) applies to debt instruments 
issued on or after August 13, 1996.
    (i) [Reserved]

[[Page 627]]

    (j) Treatment of certain modifications. If the terms of a debt 
instrument are modified to defer one or more payments, and the 
modification does not cause an exchange under section 1001, then, solely 
for purposes of sections 1272 and 1273, the debt instrument is treated 
as retired and then reissued on the date of the modification for an 
amount equal to the instrument's adjusted issue price on that date. This 
paragraph (j) applies to debt instruments issued on or after August 13, 
1996.
    (k) Reopenings--(1) In general. Notwithstanding Sec.  1.1275-1(f), 
additional debt instruments issued in a qualified reopening are part of 
the same issue as the original debt instruments. As a result, the 
additional debt instruments have the same issue date, the same issue 
price, and (with respect to holders) the same adjusted issue price as 
the original debt instruments.
    (2) Definitions--(i) Original debt instruments. Original debt 
instruments are debt instruments comprising any single issue of 
outstanding debt instruments. For purposes of determining whether a 
particular reopening is a qualified reopening, debt instruments issued 
in prior qualified reopenings are treated as original debt instruments 
and debt instruments issued in the particular reopening are not so 
treated.
    (ii) Additional debt instruments. Additional debt instruments are 
debt instruments that, without the application of this paragraph (k)--
    (A) Are part of a single issue of debt instruments;
    (B) Are not part of the same issue as the original debt instruments; 
and
    (C) Have terms that are in all respects identical to the terms of 
the original debt instruments as of the reopening date.
    (iii) Reopening date. The reopening date is the issue date of the 
additional debt instruments (determined without the application of this 
paragraph (k)).
    (iv) Announcement date. The announcement date is the later of seven 
days before the date on which the price of the additional debt 
instruments is established or the date on which the issuer's intent to 
reopen a security is publicly announced through one or more media, 
including an announcement reported on the standard electronic news 
services used by security broker-dealers (for example, Reuters, 
Telerate, or Bloomberg).
    (3) Qualified reopening--(i) Definition. A qualified reopening is a 
reopening of original debt instruments that is described in paragraph 
(k)(3)(ii), (k)(3)(iii), (k)(3)(iv), or (k)(3)(v) of this section. In 
addition, see paragraph (d)(2) of this section to determine if a 
reopening of Treasury securities is a qualified reopening.
    (ii) Reopening within six months. A reopening is described in this 
paragraph (k)(3)(ii) if--
    (A) The original debt instruments are publicly traded (within the 
meaning of Sec.  1.1273-2(f)) as of the date on which the price of the 
additional debt instruments is established (or, if earlier, the 
announcement date);
    (B) The reopening date of the additional debt instruments is not 
more than six months after the issue date of the original debt 
instruments; and
    (C) On the date on which the price of the additional debt 
instruments is established (or, if earlier, the announcement date), the 
yield of the original debt instruments (based on their fair market 
value) is not more than 110 percent of the yield of the original debt 
instruments on their issue date (or, if the original debt instruments 
were issued with no more than a de minimis amount of OID, the coupon 
rate).
    (iii) Reopening with de minimis OID. A reopening (including a 
reopening of Treasury securities) is described in this paragraph 
(k)(3)(iii) if--
    (A) The original debt instruments are publicly traded (within the 
meaning of Sec.  1.1273-2(f)) as of the date on which the price of the 
additional debt instruments is established (or, if earlier, the 
announcement date); and
    (B) The additional debt instruments are issued with no more than a 
de minimis amount of OID (determined without the application of this 
paragraph (k)).
    (iv) Non-publicly traded debt issued for cash. A reopening is 
described in this paragraph (k)(3)(iv) if the additional debt 
instruments are issued for cash to persons unrelated to the issuer (as 
determined under section 267(b) or 707(b)) for an arm's length price and 
either the

[[Page 628]]

requirements in paragraphs (k)(3)(ii)(B) and (k)(3)(ii)(C) of this 
section for a reopening within six months are satisfied or the 
requirements in paragraph (k)(3)(iii)(B) of this section for a reopening 
with de minimis OID are satisfied. For purposes of paragraph 
(k)(3)(ii)(C) of this section, the yield test is satisfied if, on the 
date on which the price of the additional debt instruments is 
established (or, if earlier, the announcement date), the yield of the 
additional debt instruments (based on their cash purchase price) is not 
more than 110 percent of the yield of the original debt instruments on 
their issue date (or, if the original debt instruments were issued with 
no more than a de minimis amount of OID, the coupon rate).
    (v) 100 Percent yield test for reopening after six months. A 
reopening is described in this paragraph (k)(3)(v) if the additional 
debt instruments are issued more than six months after the issue date of 
the original debt instruments and either the requirements in paragraphs 
(k)(3)(ii)(A) and (k)(3)(ii)(C) of this section are satisfied or the 
additional debt instruments are issued for cash to persons unrelated to 
the issuer (as determined under section 267(b) or 707(b)) for an arm's 
length price and the requirements in paragraph (k)(3)(ii)(C) of this 
section are satisfied. For purposes of the preceding sentence, the yield 
test in paragraph (k)(3)(ii)(C) of this section is satisfied if, on the 
date on which the price of the additional debt instruments is 
established (or, if earlier, the announcement date), the yield of the 
additional debt instruments (based on their fair market value or cash 
purchase price, whichever is applicable) is not more than 100 percent of 
the yield of the original debt instruments on their issue date (or, if 
the original debt instruments were issued with no more than a de minimis 
amount of OID, the coupon rate).
    (vi) Exceptions. This paragraph (k)(3) does not apply to a reopening 
of tax-exempt obligations (as defined in section 1275(a)(3)) or 
contingent payment debt instruments (within the meaning of Sec.  1.1275-
4).
    (4) Issuer's treatment of a qualified reopening. See Sec.  1.163-
7(e) for the issuer's treatment of the debt instruments that are part of 
a qualified reopening.
    (5) Effective/applicability dates--(i) Except as provided in 
paragraph (k)(5)(ii) of this section, this paragraph (k) applies to debt 
instruments that are part of a reopening if the reopening date is on or 
after March 13, 2001.
    (ii) Paragraphs (k)(3)(ii)(A), (k)(3)(iii)(A), (k)(3)(iv) and 
(k)(3)(v) of this section apply to debt instruments that are part of a 
reopening if the reopening date is on or after September 13, 2012.
    (l) OID rule for income item subject to section 451(b)--(1) In 
general. Notwithstanding any other rule in sections 1271 through 1275 
and Sec. Sec.  1.1271-1 through 1.1275-7, if, and to the extent, a 
taxpayer's item of income with respect to a debt instrument is subject 
to the timing rules in Sec.  1.451-3 because the item of income is a 
specified fee described in Sec.  1.451-3(j) (such as credit card late 
fees, credit card cash advance fees, or interchange fees), then the 
taxpayer does not take the item into account to determine whether the 
debt instrument has any OID. As a result, the taxpayer does not treat 
the item as creating or increasing any OID on the debt instrument.
    (2) Applicability dates--(i) In general. Except as provided in 
paragraph (l)(2)(ii) and (iii) of this section, for a specified credit 
card fee as defined in Sec.  1.451-3(j)(2), paragraph (l)(1) of this 
section applies for taxable years beginning on or after January 1, 2021, 
and, for a specified fee that is not a specified credit card fee, 
paragraph (l)(1) of this section applies for taxable years beginning on 
or after January 6, 2022.
    (ii) Early application. For a taxable year beginning after December 
31, 2018, and before January 1, 2021, a taxpayer and its related 
parties, within the meaning of sections 267(b) and 707(b), may choose to 
apply both paragraph (l)(1) of this section and the rules in Sec.  
1.451-3, in their entirety and in a consistent manner, to all specified 
credit card fees subject to Sec.  1.451-3, provided that once applied to 
a taxable year the rules in paragraph (l)(1) of this section and the 
rules in Sec.  1.451-3 that apply to specified credit card fees, are 
applied in

[[Page 629]]

their entirety and in a consistent manner for all subsequent taxable 
years. See section 7508(b)(7).
    (iii) Applicability date for accounting method changes. Paragraph 
(l)(1) of this section will not apply in applying section 13221(e) of 
Public Law 115-97, 131 Stat. 2054 (2017), to determine the section 
481(a) adjustment period for any adjustment under section 481(a) for a 
qualified change in method of accounting required under section 451(b) 
and Sec.  1.451-3 for a specified credit card fee.
    (m) Transition from certain interbank offered rates--(1) In general. 
This paragraph (m) applies to a variable rate debt instrument (as 
defined in Sec.  1.1275-5(a)) that provides both for a qualified 
floating rate that references a discontinued IBOR and for a methodology 
to change that rate referencing a discontinued IBOR to a different rate 
in anticipation of the discontinued IBOR becoming unavailable or 
unreliable. For purposes of this paragraph (m), discontinued IBOR has 
the meaning provided in Sec.  1.1001-6(h)(4). See Sec.  1.1001-6 for 
additional rules that may apply to a debt instrument that provides for a 
rate referencing a discontinued IBOR.
    (2) Single qualified floating rate. If a debt instrument is 
described in paragraph (m)(1) of this section, the rate referencing a 
discontinued IBOR and the different rate are treated as a single 
qualified floating rate for purposes of Sec.  1.1275-5.
    (3) Remote contingency. If a debt instrument is described in 
paragraph (m)(1) of this section, the possibility that the discontinued 
IBOR will become unavailable or unreliable is treated as a remote 
contingency for purposes of paragraph (h) of this section.
    (4) Change in circumstances. If a debt instrument is described in 
paragraph (m)(1) of this section, the fact that the discontinued IBOR 
has become unavailable or unreliable is not treated as a change in 
circumstances for purposes of paragraph (h)(6) of this section.
    (5) Applicability date. Paragraph (m) of this section applies to 
debt instruments issued on or after March 7, 2022. A taxpayer may choose 
to apply paragraph (m) of this section to debt instruments issued before 
March 7, 2022, provided that the taxpayer and all related parties 
(within the meaning of section 267(b) or section 707(b)(1) or within the 
meaning of Sec.  1.150-1(b) for a taxpayer that is a State or local 
governmental unit (as defined in Sec.  1.103-1(a)) or a 501(c)(3) 
organization (as defined in section 150(a)(4))) apply paragraph (m) of 
this section to all debt instruments issued before that date. See 
section 7805(b)(7).

[T.D. 8517, 59 FR 4826, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30142, June 14, 1996; T.D. 8840, 64 FR 60343, Nov. 5, 1999; T.D. 8934, 
66 FR 2816, Jan. 12, 2001; T.D. 9157, 69 FR 52829, Aug. 30, 2004; T.D. 
9599, 77 FR 56538, Sept. 13, 2012; T.D. 9941, 86 FR 862, Jan. 6, 2021; 
86 FR 1256, Jan. 8, 2021; 86 FR 2974, Jan. 14, 2021; T.D. 9961, 87 FR 
182, Jan. 4, 2022]



Sec.  1.1275-3  OID information reporting requirements.

    (a) In general. This section provides legending and information 
reporting requirements intended to facilitate the reporting of OID.
    (b) Information required to be set forth on face of debt instruments 
that are not publicly offered--(1) In general. Except as provided in 
paragraph (b)(4) or paragraph (d) of this section, this paragraph (b) 
applies to any debt instrument that is not publicly offered (within the 
meaning of Sec.  1.1275-1(h)), is issued in physical form, and has OID. 
The issuer of any such debt instrument must legend the instrument by 
stating on the face of the instrument that the debt instrument was 
issued with OID. In addition, the issuer must either--
    (i) Set forth on the face of the debt instrument the issue price, 
the amount of OID, the issue date, the yield to maturity, and, in the 
case of a debt instrument subject to the rules of Sec.  1.1275-4(b), the 
comparable yield and projected payment schedule; or
    (ii) Provide the name or title and either the address or telephone 
number of a representative of the issuer who will, beginning no later 
than 10 days after the issue date, promptly make available to holders 
upon request the information described in paragraph (b)(1)(i) of this 
section.
    (2) Time for legending. An issuer may satisfy the requirements of 
this paragraph (b) by legending the debt instrument when it is first 
issued in physical

[[Page 630]]

form. Legending is not required, however, before the first holder of the 
debt instrument disposes of the instrument.
    (3) Legend must survive reissuance upon transfer. Any new physical 
security that is issued (for example, upon registration of transfer of 
ownership) must contain any required legend.
    (4) Exceptions. Paragraph (b)(1) of this section does not apply to 
debt instruments described in section 1272(a)(2) (relating to debt 
instruments not subject to the periodic OID inclusion rules), debt 
instruments issued by natural persons (as defined in Sec.  1.6049-
4(f)(2)), REMIC regular interests or other debt instruments subject to 
section 1272(a)(6), or stripped bonds and coupons within the meaning of 
section 1286.
    (c) Information required to be reported to Secretary upon issuance 
of publicly offered debt instruments--(1) In general. Except as provided 
in paragraph (c)(3) or paragraph (d) of this section, the information 
reporting requirements of this paragraph (c) apply to any debt 
instrument that is publicly offered and has original issue discount. The 
issuer of any such debt instrument must make an information return on 
the form prescribed by the Commissioner (Form 8281, as of September 2, 
1992). The prescribed form must be filed with the Internal Revenue 
Service in the manner specified on the form. The taxpayer must use the 
prescribed form even if other information returns are filed using other 
methods (e.g., electronic media), unless the Commissioner announces 
otherwise in a revenue procedure.
    (2) Time for filing information return. The prescribed form must be 
filed for each issue of publicly offered debt instruments within 30 days 
after the issue date of the issue.
    (3) Exceptions. The rules of paragraph (c)(1) of this section do not 
apply to debt instruments described in section 1272(a)(2), debt 
instruments issued by natural persons (as defined in Sec.  1.6049-
4(f)(2)), certificates of deposit, REMIC regular interests or other debt 
instruments subject to section 1272(a)(6), or (unless otherwise required 
by the Commissioner pursuant to a revenue ruling or revenue procedure) 
stripped bonds and coupons (within the meaning of section 1286).
    (4) Subsequent registration. Except as provided in paragraph (c)(3) 
or (d) of this section, the information reporting requirements of 
paragraph (c)(1) of this section apply to any debt instrument that has 
original issue discount if the instrument is part of an issue the 
offering of which is registered with the Securities and Exchange 
Commission (SEC) after the issue date of the debt instrument. For 
example, this paragraph (c)(4) applies to a newly issued debt instrument 
(B bond) exchanged for an otherwise identical non-SEC-registered debt 
instrument (A bond) if the B bond is part of an issue the offering of 
which is registered with the SEC and the B bond has an issue date that 
is the same as the issue date of the A bond for federal tax purposes 
because the exchange is not a realization event under Sec.  1.1001-3. If 
a debt instrument is subject to this paragraph (c)(4), the prescribed 
form (Form 8281 or any successor) must be filed with the Internal 
Revenue Service within 30 days after the date the offering is registered 
with the SEC. This paragraph (c)(4) applies to a debt instrument that is 
part of an issue the offering of which is registered with the SEC on or 
after January 1, 2014.
    (d) Application to foreign issuers and U.S. issuers of foreign-
targeted debt instruments. A foreign or domestic issuer is subject to 
the rules of this section with respect to an issue of debt instruments 
unless the issue is not offered for sale or resale in the United States 
in connection with its original issuance.
    (e) Penalties. See section 6706 for rules relating to the penalty 
imposed for failure to meet the information reporting requirements 
imposed by this section.
    (f) Effective date. Paragraphs (c), (d), and (e) of this section are 
effective for an issue of debt instruments issued after September 2, 
1992.

[T.D. 8431, 57 FR 40322, Sept. 3, 1992; 57 FR 46243, Oct. 7, 1992, as 
amended by T.D. 8517, 59 FR 4827, Feb. 2, 1994; T.D. 8674, 61 FR 30143, 
June 14, 1996; T.D. 9616, 78 FR 23126, Apr. 18, 2013]

[[Page 631]]



Sec.  1.1275-4  Contingent payment debt instruments.

    (a) Applicability--(1) In general. Except as provided in paragraph 
(a)(2) of this section, this section applies to any debt instrument that 
provides for one or more contingent payments. In general, paragraph (b) 
of this section applies to a contingent payment debt instrument that is 
issued for money or publicly traded property and paragraph (c) of this 
section applies to a contingent payment debt instrument that is issued 
for nonpublicly traded property. Paragraph (d) of this section provides 
special rules for tax-exempt obligations. See Sec.  1.1275-6 for a 
taxpayer's treatment of a contingent payment debt instrument and a 
hedge.
    (2) Exceptions. This section does not apply to--
    (i) A debt instrument that has an issue price determined under 
section 1273(b)(4) (e.g., a debt instrument subject to section 483);
    (ii) A variable rate debt instrument (as defined in Sec.  1.1275-5);
    (iii) A debt instrument subject to Sec.  1.1272-1(c) (a debt 
instrument that provides for certain contingencies) or Sec.  1.1272-1(d) 
(a debt instrument that provides for a fixed yield);
    (iv) A debt instrument subject to section 988 (except as provided in 
Sec.  1.988-6);
    (v) A debt instrument to which section 1272(a)(6) applies (certain 
interests in or mortgages held by a REMIC, and certain other debt 
instruments with payments subject to acceleration);
    (vi) A debt instrument (other than a tax-exempt obligation) 
described in section 1272(a)(2) (e.g., U.S. savings bonds, certain loans 
between natural persons, and short-term taxable obligations);
    (vii) An inflation-indexed debt instrument (as defined in Sec.  
1.1275-7); or
    (viii) A debt instrument issued pursuant to a plan or arrangement 
if--
    (A) The plan or arrangement is created by a state statute;
    (B) A primary objective of the plan or arrangement is to enable the 
participants to pay for the costs of post-secondary education for 
themselves or their designated beneficiaries; and
    (C) Contingent payments on the debt instrument are related to such 
objective.
    (3) Insolvency and default. A payment is not contingent merely 
because of the possibility of impairment by insolvency, default, or 
similar circumstances.
    (4) Convertible debt instruments. A debt instrument does not provide 
for contingent payments merely because it provides for an option to 
convert the debt instrument into the stock of the issuer, into the stock 
or debt of a related party (within the meaning of section 267(b) or 
707(b)(1)), or into cash or other property in an amount equal to the 
approximate value of such stock or debt. For debt instruments issued on 
or after February 5, 2013, the term stock in the preceding sentence 
means an equity interest in any entity that is classified, for Federal 
tax purposes, as either a partnership or a corporation.
    (5) Remote and incidental contingencies. A payment is not a 
contingent payment merely because of a contingency that, as of the issue 
date, is either remote or incidental. See Sec.  1.1275-2(h) for the 
treatment of remote and incidental contingencies.
    (b) Noncontingent bond method--(1) Applicability. The noncontingent 
bond method described in this paragraph (b) applies to a contingent 
payment debt instrument that has an issue price determined under Sec.  
1.1273-2 (e.g., a contingent payment debt instrument that is issued for 
money or publicly traded property).
    (2) In general. Under the noncontingent bond method, interest on a 
debt instrument must be taken into account whether or not the amount of 
any payment is fixed or determinable in the taxable year. The amount of 
interest that is taken into account for each accrual period is 
determined by constructing a projected payment schedule for the debt 
instrument and applying rules similar to those for accruing OID on a 
noncontingent debt instrument. If the actual amount of a contingent 
payment is not equal to the projected amount, appropriate adjustments 
are made to reflect the difference.
    (3) Description of method. The following steps describe how to 
compute the amount of income, deductions, gain, and loss under the 
noncontingent bond method:

[[Page 632]]

    (i) Step one: Determine the comparable yield. Determine the 
comparable yield for the debt instrument under the rules of paragraph 
(b)(4) of this section. The comparable yield is determined as of the 
debt instrument's issue date.
    (ii) Step two: Determine the projected payment schedule. Determine 
the projected payment schedule for the debt instrument under the rules 
of paragraph (b)(4) of this section. The projected payment schedule is 
determined as of the issue date and remains fixed throughout the term of 
the debt instrument (except under paragraph (b)(9)(ii) of this section, 
which applies to a payment that is fixed more than 6 months before it is 
due).
    (iii) Step three: Determine the daily portions of interest. 
Determine the daily portions of interest on the debt instrument for a 
taxable year as follows. The amount of interest that accrues in each 
accrual period is the product of the comparable yield of the debt 
instrument (properly adjusted for the length of the accrual period) and 
the debt instrument's adjusted issue price at the beginning of the 
accrual period. See paragraph (b)(7)(ii) of this section to determine 
the adjusted issue price of the debt instrument. The daily portions of 
interest are determined by allocating to each day in the accrual period 
the ratable portion of the interest that accrues in the accrual period. 
Except as modified by paragraph (b)(3)(iv) of this section, the daily 
portions of interest are includible in income by a holder for each day 
in the holder's taxable year on which the holder held the debt 
instrument and are deductible by the issuer for each day during the 
issuer's taxable year on which the issuer was primarily liable on the 
debt instrument.
    (iv) Step four: Adjust the amount of income or deductions for 
differences between projected and actual contingent payments. Make 
appropriate adjustments to the amount of income or deductions 
attributable to the debt instrument in a taxable year for any 
differences between projected and actual contingent payments. See 
paragraph (b)(6) of this section to determine the amount of an 
adjustment and the treatment of the adjustment.
    (4) Comparable yield and projected payment schedule. This paragraph 
(b)(4) provides rules for determining the comparable yield and projected 
payment schedule for a debt instrument. The comparable yield and 
projected payment schedule must be supported by contemporaneous 
documentation showing that both are reasonable, are based on reliable, 
complete, and accurate data, and are made in good faith.
    (i) Comparable yield--(A) In general. Except as provided in 
paragraph (b)(4)(i)(B) of this section, the comparable yield for a debt 
instrument is the yield at which the issuer would issue a fixed rate 
debt instrument with terms and conditions similar to those of the 
contingent payment debt instrument (the comparable fixed rate debt 
instrument), including the level of subordination, term, timing of 
payments, and general market conditions. For example, if a Sec.  1.1275-
6 hedge (or the substantial equivalent) is available, the comparable 
yield is the yield on the synthetic fixed rate debt instrument that 
would result if the issuer entered into the Sec.  1.1275-6 hedge. If a 
Sec.  1.1275-6 hedge (or the substantial equivalent) is not available, 
but similar fixed rate debt instruments of the issuer trade at a price 
that reflects a spread above a benchmark rate, the comparable yield is 
the sum of the value of the benchmark rate on the issue date and the 
spread. In determining the comparable yield, no adjustments are made for 
the riskiness of the contingencies or the liquidity of the debt 
instrument. The comparable yield must be a reasonable yield for the 
issuer and must not be less than the applicable Federal rate (based on 
the overall maturity of the debt instrument).
    (B) Presumption for certain debt instruments. This paragraph 
(b)(4)(i)(B) applies to a debt instrument if the instrument provides for 
one or more contingent payments not based on market information and the 
instrument is part of an issue that is marketed or sold in substantial 
part to persons for whom the inclusion of interest under this paragraph 
(b) is not expected to have a substantial effect on their U.S. tax 
liability. If this paragraph (b)(4)(i)(B) applies to a debt instrument, 
the instrument's comparable yield is presumed

[[Page 633]]

to be the applicable Federal rate (based on the overall maturity of the 
debt instrument). A taxpayer may overcome this presumption only with 
clear and convincing evidence that the comparable yield for the debt 
instrument should be a specific yield (determined using the principles 
in paragraph (b)(4)(i)(A) of this section) that is higher than the 
applicable Federal rate. The presumption may not be overcome with 
appraisals or other valuations of nonpublicly traded property. Evidence 
used to overcome the presumption must be specific to the issuer and must 
not be based on comparable issuers or general market conditions.
    (ii) Projected payment schedule. The projected payment schedule for 
a debt instrument includes each noncontingent payment and an amount for 
each contingent payment determined as follows:
    (A) Market-based payments. If a contingent payment is based on 
market information (a market-based payment), the amount of the projected 
payment is the forward price of the contingent payment. The forward 
price of a contingent payment is the amount one party would agree, as of 
the issue date, to pay an unrelated party for the right to the 
contingent payment on the settlement date (e.g., the date the contingent 
payment is made). For example, if the right to a contingent payment is 
substantially similar to an exchange-traded option, the forward price is 
the spot price of the option (the option premium) compounded at the 
applicable Federal rate from the issue date to the date the contingent 
payment is due.
    (B) Other payments. If a contingent payment is not based on market 
information (a non-market-based payment), the amount of the projected 
payment is the expected value of the contingent payment as of the issue 
date.
    (C) Adjustments to the projected payment schedule. The projected 
payment schedule must produce the comparable yield. If the projected 
payment schedule does not produce the comparable yield, the schedule 
must be adjusted consistent with the principles of this paragraph (b)(4) 
to produce the comparable yield. For example, the adjusted amounts of 
non-market-based payments must reasonably reflect the relative expected 
values of the payments and must not be set to accelerate or defer income 
or deductions. If the debt instrument contains both market-based and 
non-market-based payments, adjustments are generally made first to the 
non-market-based payments because more objective information is 
available for the market-based payments.
    (iii) Market information. For purposes of this paragraph (b), market 
information is any information on which an objective rate can be based 
under Sec.  1.1275-5(c) (1) or (2).
    (iv) Issuer/holder consistency. The issuer's projected payment 
schedule is used to determine the holder's interest accruals and 
adjustments. The issuer must provide the projected payment schedule to 
the holder in a manner consistent with the issuer disclosure rules of 
Sec.  1.1275-2(e). If the issuer does not create a projected payment 
schedule for a debt instrument or the issuer's projected payment 
schedule is unreasonable, the holder of the debt instrument must 
determine the comparable yield and projected payment schedule for the 
debt instrument under the rules of this paragraph (b)(4). A holder that 
determines its own projected payment schedule must explicitly disclose 
this fact and the reason why the holder set its own schedule (e.g., why 
the issuer's projected payment schedule is unreasonable). Unless 
otherwise prescribed by the Commissioner, the disclosure must be made on 
a statement attached to the holder's timely filed Federal income tax 
return for the taxable year that includes the acquisition date of the 
debt instrument.
    (v) Issuer's determination respected--(A) In general. If the issuer 
maintains the contemporaneous documentation required by this paragraph 
(b)(4), the issuer's determination of the comparable yield and projected 
payment schedule will be respected unless either is unreasonable.
    (B) Unreasonable determination. For purposes of paragraph 
(b)(4)(v)(A) of this section, a comparable yield or projected payment 
schedule generally will be considered unreasonable if it is set

[[Page 634]]

with a purpose to overstate, understate, accelerate, or defer interest 
accruals on the debt instrument. In a determination of whether a 
comparable yield or projected payment schedule is unreasonable, 
consideration will be given to whether the treatment of the debt 
instrument under this section is expected to have a substantial effect 
on the issuer's or holder's U.S. tax liability. For example, if a 
taxable issuer markets a debt instrument to a holder not subject to U.S. 
taxation, the comparable yield will be given close scrutiny and will not 
be respected unless contemporaneous documentation shows that the yield 
is not too high.
    (C) Exception. Paragraph (b)(4)(v)(A) of this section does not apply 
to a debt instrument subject to paragraph (b)(4)(i)(B) of this section 
(concerning a yield presumption for certain debt instruments that 
provide for non-market-based payments).
    (vi) Examples. The following examples illustrate the provisions of 
this paragraph (b)(4). In each example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes.

    Example 1. Market-based payment. (i) Facts. On December 31, 1996, X 
corporation issues for $1,000,000 a debt instrument that matures on 
December 31, 2006. The debt instrument provides for annual payments of 
interest, beginning in 1997, at the rate of 6 percent and for a payment 
at maturity equal to $1,000,000 plus the excess, if any, of the price of 
10,000 shares of publicly traded stock in an unrelated corporation on 
the maturity date over $350,000, or less the excess, if any, of $350,000 
over the price of 10,000 shares of the stock on the maturity date. On 
the issue date, the forward price to purchase 10,000 shares of the stock 
on December 31, 2006, is $350,000.
    (ii) Comparable yield. Under paragraph (b)(4)(i) of this section, 
the debt instrument's comparable yield is the yield on the synthetic 
debt instrument that would result if X corporation entered into a Sec.  
1.1275-6 hedge. A Sec.  1.1275-6 hedge in this case is a forward 
contract to purchase 10,000 shares of the stock on December 31, 2006. If 
X corporation entered into this hedge, the resulting synthetic debt 
instrument would yield 6 percent, compounded annually. Thus, the 
comparable yield on the debt instrument is 6 percent, compounded 
annually.
    (iii) Projected payment schedule. Under paragraph (b)(4)(ii) of this 
section, the projected payment schedule for the debt instrument consists 
of 10 annual payments of $60,000 and a projected amount for the 
contingent payment at maturity. Because the right to the contingent 
payment is based on market information, the projected amount of the 
contingent payment is the forward price of the payment. The right to the 
contingent payment is substantially similar to a right to a payment of 
$1,000,000 combined with a cash-settled forward contract for the 
purchase of 10,000 shares of the stock for $350,000 on December 31, 
2006. Because the forward price to purchase 10,000 shares of the stock 
on December 31, 2006, is $350,000, the amount to be received or paid 
under the forward contract is projected to be zero. As a result, the 
projected amount of the contingent payment at maturity is $1,000,000, 
consisting of the $1,000,000 base amount and no additional amount to be 
received or paid under the forward contract.
    (A) Assume, alternatively, that on the issue date the forward price 
to purchase 10,000 shares of the stock on December 31, 2006, is 
$370,000. If X corporation entered into a Sec.  1.1275-6 hedge (a 
forward contract to purchase the shares for $370,000), the resulting 
synthetic debt instrument would yield 6.15 percent, compounded annually. 
Thus, the comparable yield on the debt instrument is 6.15 percent, 
compounded annually. The projected payment schedule for the debt 
instrument consists of 10 annual payments of $60,000 and a projected 
amount for the contingent payment at maturity. The projected amount of 
the contingent payment is $1,020,000, consisting of the $1,000,000 base 
amount plus the excess $20,000 of the forward price of the stock over 
the purchase price of the stock under the forward contract.
    (B) Assume, alternatively, that on the issue date the forward price 
to purchase 10,000 shares of the stock on December 31, 2006, is 
$330,000. If X corporation entered into a Sec.  1.1275-6 hedge, the 
resulting synthetic debt instrument would yield 5.85 percent, compounded 
annually. Thus, the comparable yield on the debt instrument is 5.85 
percent, compounded annually. The projected payment schedule for the 
debt instrument consists of 10 annual payments of $60,000 and a 
projected amount for the contingent payment at maturity. The projected 
amount of the contingent payment is $980,000, consisting of the 
$1,000,000 base amount minus the excess $20,000 of the purchase price of 
the stock under the forward contract over the forward price of the 
stock.
    Example 2. Non-market-based payments. (i) Facts. On December 31, 
1996, Y issues to Z for $1,000,000 a debt instrument that matures on 
December 31, 2000. The debt instrument has a stated principal amount of 
$1,000,000, payable at maturity, and provides for payments on

[[Page 635]]

December 31 of each year, beginning in 1997, of $20,000 plus 1 percent 
of Y's gross receipts, if any, for the year. On the issue date, Y has 
outstanding fixed rate debt instruments with maturities of 2 to 10 years 
that trade at a price that reflects an average of 100 basis points over 
Treasury bonds. These debt instruments have terms and conditions similar 
to those of the debt instrument. Assume that on December 31, 1996, 4-
year Treasury bonds have a yield of 6.5 percent, compounded annually, 
and that no Sec.  1.1275-6 hedge is available for the debt instrument. 
In addition, assume that the interest inclusions attributable to the 
debt instrument are expected to have a substantial effect on Z's U.S. 
tax liability.
    (ii) Comparable yield. The comparable yield for the debt instrument 
is equal to the value of the benchmark rate (i.e., the yield on 4-year 
Treasury bonds) on the issue date plus the spread. Thus, the debt 
instrument's comparable yield is 7.5 percent, compounded annually.
    (iii) Projected payment schedule. Y anticipates that it will have no 
gross receipts in 1997, but that it will have gross receipts in later 
years, and those gross receipts will grow each year for the next three 
years. Based on its business projections, Y believes that it is not 
unreasonable to expect that its gross receipts in 1999 and each year 
thereafter will grow by between 6 percent and 13 percent over the prior 
year. Thus, Y must take these expectations into account in establishing 
a projected payment schedule for the debt instrument that results in a 
yield of 7.5 percent, compounded annually. Accordingly, Y could 
reasonably set the following projected payment schedule for the debt 
instrument:

------------------------------------------------------------------------
                                            Noncontingent    Contingent
                   Date                        payment         payment
------------------------------------------------------------------------
12/31/1997...............................          $20,000            $0
12/31/1998...............................           20,000        70,000
12/31/1999...............................           20,000        75,600
12/31/2000...............................        1,020,000        83,850
------------------------------------------------------------------------

    (5) Qualified stated interest. No amounts payable on a debt 
instrument to which this paragraph (b) applies are qualified stated 
interest within the meaning of Sec.  1.1273-1(c).
    (6) Adjustments. This paragraph (b)(6) provides rules for the 
treatment of positive and negative adjustments under the noncontingent 
bond method. A taxpayer takes into account only those adjustments that 
occur during a taxable year while the debt instrument is held by the 
taxpayer or while the taxpayer is primarily liable on the debt 
instrument.
    (i) Determination of positive and negative adjustments. If the 
amount of a contingent payment is more than the projected amount of the 
contingent payment, the difference is a positive adjustment on the date 
of the payment. If the amount of a contingent payment is less than the 
projected amount of the contingent payment, the difference is a negative 
adjustment on the date of the payment (or on the scheduled date of the 
payment if the amount of the payment is zero).
    (ii) Treatment of net positive adjustments. The amount, if any, by 
which total positive adjustments on a debt instrument in a taxable year 
exceed the total negative adjustments on the debt instrument in the 
taxable year is a net positive adjustment. A net positive adjustment is 
treated as additional interest for the taxable year.
    (iii) Treatment of net negative adjustments. The amount, if any, by 
which total negative adjustments on a debt instrument in a taxable year 
exceed the total positive adjustments on the debt instrument in the 
taxable year is a net negative adjustment. A taxpayer's net negative 
adjustment on a debt instrument for a taxable year is treated as 
follows:
    (A) Reduction of interest accruals. A net negative adjustment first 
reduces interest for the taxable year that the taxpayer would otherwise 
account for on the debt instrument under paragraph (b)(3)(iii) of this 
section.
    (B) Ordinary income or loss. If the net negative adjustment exceeds 
the interest for the taxable year that the taxpayer would otherwise 
account for on the debt instrument under paragraph (b)(3)(iii) of this 
section, the excess is treated as ordinary loss by a holder and ordinary 
income by an issuer. However, the amount treated as ordinary loss by a 
holder is limited to the amount by which the holder's total interest 
inclusions on the debt instrument exceed the total amount of the 
holder's net negative adjustments treated as ordinary loss on the debt 
instrument in prior taxable years. The amount treated as ordinary income 
by an issuer is limited to the amount by which the issuer's total 
interest deductions on the debt instrument exceed the total amount of 
the issuer's net

[[Page 636]]

negative adjustments treated as ordinary income on the debt instrument 
in prior taxable years.
    (C) Carryforward. If the net negative adjustment exceeds the sum of 
the amounts treated by the taxpayer as a reduction of interest and as 
ordinary income or loss (as the case may be) on the debt instrument for 
the taxable year, the excess is a negative adjustment carryforward for 
the taxable year. In general, a taxpayer treats a negative adjustment 
carryforward for a taxable year as a negative adjustment on the debt 
instrument on the first day of the succeeding taxable year. However, if 
a holder of a debt instrument has a negative adjustment carryforward on 
the debt instrument in a taxable year in which the debt instrument is 
sold, exchanged, or retired, the negative adjustment carryforward 
reduces the holder's amount realized on the sale, exchange, or 
retirement. If an issuer of a debt instrument has a negative adjustment 
carryforward on the debt instrument for a taxable year in which the debt 
instrument is retired, the issuer takes the negative adjustment 
carryforward into account as ordinary income.
    (D) Treatment under section 67. A net negative adjustment is not 
subject to section 67 (the 2-percent floor on miscellaneous itemized 
deductions).
    (iv) Cross-references. If a holder has a basis in a debt instrument 
that is different from the debt instrument's adjusted issue price, the 
holder may have additional positive or negative adjustments under 
paragraph (b)(9)(i) of this section. If the amount of a contingent 
payment is fixed more than 6 months before the date it is due, the 
amount and timing of the adjustment are determined under paragraph 
(b)(9)(ii) of this section.
    (7) Adjusted issue price, adjusted basis, and retirement--(i) In 
general. If a debt instrument is subject to the noncontingent bond 
method, this paragraph (b)(7) provides rules to determine the adjusted 
issue price of the debt instrument, the holder's basis in the debt 
instrument, and the treatment of any scheduled or unscheduled 
retirements. In general, because any difference between the actual 
amount of a contingent payment and the projected amount of the payment 
is taken into account as an adjustment to income or deduction, the 
projected payments are treated as the actual payments for purposes of 
making adjustments to issue price and basis and determining the amount 
of any contingent payment made on a scheduled retirement.
    (ii) Definition of adjusted issue price. The adjusted issue price of 
a debt instrument is equal to the debt instrument's issue price, 
increased by the interest previously accrued on the debt instrument 
under paragraph (b)(3)(iii) of this section (determined without regard 
to any adjustments taken into account under paragraph (b)(3)(iv) of this 
section), and decreased by the amount of any noncontingent payment and 
the projected amount of any contingent payment previously made on the 
debt instrument. See paragraph (b)(9)(ii) of this section for special 
rules that apply when a contingent payment is fixed more than 6 months 
before it is due.
    (iii) Adjustments to basis. A holder's basis in a debt instrument is 
increased by the interest previously accrued by the holder on the debt 
instrument under paragraph (b)(3)(iii) of this section (determined 
without regard to any adjustments taken into account under paragraph 
(b)(3)(iv) of this section), and decreased by the amount of any 
noncontingent payment and the projected amount of any contingent payment 
previously made on the debt instrument to the holder. See paragraph 
(b)(9)(i) of this section for special rules that apply when basis is 
different from adjusted issue price and paragraph (b)(9)(ii) of this 
section for special rules that apply when a contingent payment is fixed 
more than 6 months before it is due.
    (iv) Scheduled retirements. For purposes of determining the amount 
realized by a holder and the repurchase price paid by the issuer on the 
scheduled retirement of a debt instrument, a holder is treated as 
receiving, and the issuer is treated as paying, the projected amount of 
any contingent payment due at maturity. If the amount paid or received 
is different from the projected amount, see paragraph (b)(6) of this 
section for the treatment of the difference by the taxpayer. Under 
paragraph (b)(6)(iii)(C) of this section, the

[[Page 637]]

amount realized by a holder on the retirement of a debt instrument is 
reduced by any negative adjustment carryforward determined in the 
taxable year of the retirement.
    (v) Unscheduled retirements. An unscheduled retirement of a debt 
instrument (or the receipt of a pro-rata prepayment that is treated as a 
retirement of a portion of a debt instrument under Sec.  1.1275-2(f)) is 
treated as a repurchase of the debt instrument (or a pro-rata portion of 
the debt instrument) by the issuer from the holder for the amount paid 
by the issuer to the holder.
    (vi) Examples. The following examples illustrate the provisions of 
paragraphs (b) (6) and (7) of this section. In each example, assume that 
the instrument described is a debt instrument for Federal income tax 
purposes. No inference is intended, however, as to whether the 
instrument is a debt instrument for Federal income tax purposes.

    Example 1. Treatment of positive and negative adjustments. (i) 
Facts. On December 31, 1996, Z, a calendar year taxpayer, purchases a 
debt instrument subject to this paragraph (b) at original issue for 
$1,000. The debt instrument's comparable yield is 10 percent, compounded 
annually, and the projected payment schedule provides for payments of 
$500 on December 31, 1997 (consisting of a noncontingent payment of $375 
and a projected amount of $125) and $660 on December 31, 1998 
(consisting of a noncontingent payment of $600 and a projected amount of 
$60). The debt instrument is a capital asset in the hands of Z.
    (ii) Adjustment in 1997. Based on the projected payment schedule, 
Z's total daily portions of interest on the debt instrument are $100 for 
1997 (issue price of $1,000 x 10 percent). Assume that the payment 
actually made on December 31, 1997, is $375, rather than the projected 
$500. Under paragraph (b)(6)(i) of this section, Z has a negative 
adjustment of $125 on December 31, 1997, attributable to the difference 
between the amount of the actual payment and the amount of the projected 
payment. Because Z has no positive adjustments for 1997, Z has a net 
negative adjustment of $125 on the debt instrument for 1997. This net 
negative adjustment reduces to zero the $100 total daily portions of 
interest Z would otherwise include in income in 1997. Accordingly, Z has 
no interest income on the debt instrument for 1997. Because Z had no 
interest inclusions on the debt instrument for prior taxable years, the 
remaining $25 of the net negative adjustment is a negative adjustment 
carryforward for 1997 that results in a negative adjustment of $25 on 
January 1, 1998.
    (iii) Adjustment to issue price and basis. Z's total daily portions 
of interest on the debt instrument are $100 for 1997. The adjusted issue 
price of the debt instrument and Z's adjusted basis in the debt 
instrument are increased by this amount, despite the fact that Z does 
not include this amount in income because of the net negative adjustment 
for 1997. In addition, the adjusted issue price of the debt instrument 
and Z's adjusted basis in the debt instrument are decreased on December 
31, 1997, by the projected amount of the payment on that date ($500). 
Thus, on January 1, 1998, Z's adjusted basis in the debt instrument and 
the adjusted issue price of the debt instrument are $600.
    (iv) Adjustments in 1998. Based on the projected payment schedule, 
Z's total daily portions of interest are $60 for 1998 (adjusted issue 
price of $600 x 10 percent). Assume that the payment actually made on 
December 31, 1998, is $700, rather than the projected $660. Under 
paragraph (b)(6)(i) of this section, Z has a positive adjustment of $40 
on December 31, 1998, attributable to the difference between the amount 
of the actual payment and the amount of the projected payment. Because Z 
also has a negative adjustment of $25 on January 1, 1998, Z has a net 
positive adjustment of $15 on the debt instrument for 1998 (the excess 
of the $40 positive adjustment over the $25 negative adjustment). As a 
result, Z has $75 of interest income on the debt instrument for 1998 
(the $15 net positive adjustment plus the $60 total daily portions of 
interest that are taken into account by Z in that year).
    (v) Retirement. Based on the projected payment schedule, Z's 
adjusted basis in the debt instrument immediately before the payment at 
maturity is $660 ($600 plus $60 total daily portions of interest for 
1998). Even though Z receives $700 at maturity, for purposes of 
determining the amount realized by Z on retirement of the debt 
instrument, Z is treated as receiving the projected amount of the 
contingent payment on December 31, 1998. Therefore, Z is treated as 
receiving $660 on December 31, 1998. Because Z's adjusted basis in the 
debt instrument immediately before its retirement is $660, Z recognizes 
no gain or loss on the retirement.
    Example 2. Negative adjustment carryforward for year of sale. (i) 
Facts. Assume the same facts as in Example 1 of this paragraph 
(b)(7)(vi), except that Z sells the debt instrument on January 1, 1998, 
for $630.
    (ii) Gain on sale. On the date the debt instrument is sold, Z's 
adjusted basis in the debt instrument is $600. Because Z has a negative 
adjustment of $25 on the debt instrument on January 1, 1998, and has no 
positive adjustments on the debt instrument in 1998, Z has a net 
negative adjustment for 1998 of $25. Because Z has not included in 
income

[[Page 638]]

any interest on the debt instrument, the entire $25 net negative 
adjustment is a negative adjustment carryforward for the taxable year of 
the sale. Under paragraph (b)(6)(iii)(C) of this section, the $25 
negative adjustment carryforward reduces the amount realized by Z on the 
sale of the debt instrument from $630 to $605. Thus, Z has a gain on the 
sale of $5 ($605-$600). Under paragraph (b)(8)(i) of this section, the 
gain is treated as interest income.
    Example 3. Negative adjustment carryforward for year of retirement. 
(i) Facts. Assume the same facts as in Example 1 of this paragraph 
(b)(7)(vi), except that the payment actually made on December 31, 1998, 
is $615, rather than the projected $660.
    (ii) Adjustments in 1998. Under paragraph (b)(6)(i) of this section, 
Z has a negative adjustment of $45 on December 31, 1998, attributable to 
the difference between the amount of the actual payment and the amount 
of the projected payment. In addition, Z has a negative adjustment of 
$25 on January 1, 1998. See Example 1(ii) of this paragraph (b)(7)(vi). 
Because Z has no positive adjustments in 1998, Z has a net negative 
adjustment of $70 for 1998. This net negative adjustment reduces to zero 
the $60 total daily portions of interest Z would otherwise include in 
income for 1998. Therefore, Z has no interest income on the debt 
instrument for 1998. Because Z had no interest inclusions on the debt 
instrument for 1997, the remaining $10 of the net negative adjustment is 
a negative adjustment carryforward for 1998 that reduces the amount 
realized by Z on retirement of the debt instrument.
    (iii) Loss on retirement. Immediately before the payment at 
maturity, Z's adjusted basis in the debt instrument is $660. Under 
paragraph (b)(7)(iv) of this section, Z is treated as receiving the 
projected amount of the contingent payment, or $660, as the payment at 
maturity. Under paragraph (b)(6)(iii)(C) of this section, however, this 
amount is reduced by any negative adjustment carryforward determined for 
the taxable year of retirement to calculate the amount Z realizes on 
retirement of the debt instrument. Thus, Z has a loss of $10 on the 
retirement of the debt instrument, equal to the amount by which Z's 
adjusted basis in the debt instrument ($660) exceeds the amount Z 
realizes on the retirement of the debt instrument ($660 minus the $10 
negative adjustment carryforward). Under paragraph (b)(8)(ii) of this 
section, the loss is a capital loss.

    (8) Character on sale, exchange, or retirement--(i) Gain. Any gain 
recognized by a holder on the sale, exchange, or retirement of a debt 
instrument subject to this paragraph (b) is interest income.
    (ii) Loss. Any loss recognized by a holder on the sale, exchange, or 
retirement of a debt instrument subject to this paragraph (b) is 
ordinary loss to the extent that the holder's total interest inclusions 
on the debt instrument exceed the total net negative adjustments on the 
debt instrument the holder took into account as ordinary loss. Any 
additional loss is treated as loss from the sale, exchange, or 
retirement of the debt instrument. However, any loss that would 
otherwise be ordinary under this paragraph (b)(8)(ii) and that is 
attributable to the holder's basis that could not be amortized under 
section 171(b)(4) is loss from the sale, exchange, or retirement of the 
debt instrument.
    (iii) Special rule if there are no remaining contingent payments on 
the debt instrument--(A) In general. Notwithstanding paragraphs (b)(8) 
(i) and (ii) of this section, if, at the time of the sale, exchange, or 
retirement of the debt instrument, there are no remaining contingent 
payments due on the debt instrument under the projected payment 
schedule, any gain or loss recognized by the holder is gain or loss from 
the sale, exchange, or retirement of the debt instrument. See paragraph 
(b)(9)(ii) of this section to determine whether there are no remaining 
contingent payments on a debt instrument that provides for fixed but 
deferred contingent payments.
    (B) Exception for certain positive adjustments. Notwithstanding 
paragraph (b)(8)(iii)(A) of this section, if a positive adjustment on a 
debt instrument is spread under paragraph (b)(9)(ii) (F) or (G) of this 
section, any gain recognized by the holder on the sale, exchange, or 
retirement of the instrument is treated as interest income to the extent 
of the positive adjustment that has not yet been accrued and included in 
income by the holder.
    (iv) Examples. The following examples illustrate the provisions of 
this paragraph (b)(8). In each example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes.


[[Page 639]]


    Example 1. Gain on sale. (i) Facts. On January 1, 1998, D, a 
calendar year taxpayer, sells a debt instrument that is subject to 
paragraph (b) of this section for $1,350. The projected payment schedule 
for the debt instrument provides for contingent payments after January 
1, 1998. On January 1, 1998, D has an adjusted basis in the debt 
instrument of $1,200. In addition, D has a negative adjustment 
carryforward of $50 for 1997 that, under paragraph (b)(6)(iii)(C) of 
this section, results in a negative adjustment of $50 on January 1, 
1998. D has no positive adjustments on the debt instrument on January 1, 
1998.
    (ii) Character of gain. Under paragraph (b)(6) of this section, the 
$50 negative adjustment on January 1, 1998, results in a negative 
adjustment carryforward for 1998, the taxable year of the sale of the 
debt instrument. Under paragraph (b)(6)(iii)(C) of this section, the 
negative adjustment carryforward reduces the amount realized by D on the 
sale of the debt instrument from $1,350 to $1,300. As a result, D 
realizes a $100 gain on the sale of the debt instrument, equal to the 
$1,300 amount realized minus D's $1,200 adjusted basis in the debt 
instrument. Under paragraph (b)(8)(i) of this section, the gain is 
interest income to D.
    Example 2. Loss on sale. (i) Facts. On December 31, 1996, E, a 
calendar year taxpayer, purchases a debt instrument at original issue 
for $1,000. The debt instrument is a capital asset in the hands of E. 
The debt instrument provides for a single payment on December 31, 1998 
(the maturity date of the instrument), of $1,000 plus an amount based on 
the increase, if any, in the price of a specified commodity over the 
term of the instrument. The comparable yield for the debt instrument is 
9.54 percent, compounded annually, and the projected payment schedule 
provides for a payment of $1,200 on December 31, 1998. Based on the 
projected payment schedule, the total daily portions of interest are $95 
for 1997 and $105 for 1998.
    (ii) Ordinary loss. Assume that E sells the debt instrument for 
$1,050 on December 31, 1997. On that date, E has an adjusted basis in 
the debt instrument of $1,095 ($1,000 original basis, plus total daily 
portions of $95 for 1997). Therefore, E realizes a $45 loss on the sale 
of the debt instrument ($1,050-$1,095). The loss is ordinary to the 
extent E's total interest inclusions on the debt instrument ($95) exceed 
the total net negative adjustments on the instrument that E took into 
account as an ordinary loss. Because E has not had any net negative 
adjustments on the debt instrument, the $45 loss is an ordinary loss.
    (iii) Capital loss. Alternatively, assume that E sells the debt 
instrument for $990 on December 31, 1997. E realizes a $105 loss on the 
sale of the debt instrument ($990 - $1,095). The loss is ordinary to the 
extent E's total interest inclusions on the debt instrument ($95) exceed 
the total net negative adjustments on the instrument that E took into 
account as an ordinary loss. Because E has not had any net negative 
adjustments on the debt instrument, $95 of the $105 loss is an ordinary 
loss. The remaining $10 of the $105 loss is a capital loss.

    (9) Operating rules. The rules of this paragraph (b)(9) apply to a 
debt instrument subject to the noncontingent bond method notwithstanding 
any other rule of this paragraph (b).
    (i) Basis different from adjusted issue price. This paragraph 
(b)(9)(i) provides rules for a holder whose basis in a debt instrument 
is different from the adjusted issue price of the debt instrument (e.g., 
a subsequent holder that purchases the debt instrument for more or less 
than the instrument's adjusted issue price).
    (A) General rule. The holder accrues interest under paragraph 
(b)(3)(iii) of this section and makes adjustments under paragraph 
(b)(3)(iv) of this section based on the projected payment schedule 
determined as of the issue date of the debt instrument. However, upon 
acquiring the debt instrument, the holder must reasonably allocate any 
difference between the adjusted issue price and the basis to daily 
portions of interest or projected payments over the remaining term of 
the debt instrument. Allocations are taken into account under paragraphs 
(b)(9)(i) (B) and (C) of this section.
    (B) Basis greater than adjusted issue price. If the holder's basis 
in the debt instrument exceeds the debt instrument's adjusted issue 
price, the amount of the difference allocated to a daily portion of 
interest or to a projected payment is treated as a negative adjustment 
on the date the daily portion accrues or the payment is made. On the 
date of the adjustment, the holder's adjusted basis in the debt 
instrument is reduced by the amount the holder treats as a negative 
adjustment under this paragraph (b)(9)(i)(B). See paragraph 
(b)(9)(ii)(E) of this section for a special rule that applies when a 
contingent payment is fixed more than 6 months before it is due.
    (C) Basis less than adjusted issue price. If the holder's basis in 
the debt instrument is less than the debt instrument's adjusted issue 
price, the amount of the difference allocated to a daily portion

[[Page 640]]

of interest or to a projected payment is treated as a positive 
adjustment on the date the daily portion accrues or the payment is made. 
On the date of the adjustment, the holder's adjusted basis in the debt 
instrument is increased by the amount the holder treats as a positive 
adjustment under this paragraph (b)(9)(i)(C). See paragraph 
(b)(9)(ii)(E) of this section for a special rule that applies when a 
contingent payment is fixed more than 6 months before it is due.
    (D) Premium and discount rules do not apply. The rules for accruing 
premium and discount in sections 171, 1272(a)(7), 1276, and 1281 do not 
apply. Other rules of those sections, such as section 171(b)(4), 
continue to apply to the extent relevant.
    (E) Safe harbor for exchange listed debt instruments. If the debt 
instrument is exchange listed property (within the meaning of Sec.  
1.1273-2(f)(2) as contained in 26 CFR part 1, revised April 1, 2011), it 
is reasonable for the holder to allocate any difference between the 
holder's basis and the adjusted issue price of the debt instrument pro-
rata to daily portions of interest (as determined under paragraph 
(b)(3)(iii) of this section) over the remaining term of the debt 
instrument. A pro-rata allocation is not reasonable, however, to the 
extent the holder's yield on the debt instrument, determined after 
taking into account the amounts allocated under this paragraph 
(b)(9)(i)(E), is less than the applicable Federal rate for the 
instrument. For purposes of the preceding sentence, the applicable 
Federal rate for the debt instrument is determined as if the purchase 
date were the issue date and the remaining term of the instrument were 
the term of the instrument.
    (F) Examples. The following examples illustrate the provisions of 
this paragraph (b)(9)(i). In each example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes. In addition, assume that 
each instrument is not exchange listed property.

    Example 1. Basis greater than adjusted issue price. (i) Facts. On 
July 1, 1998, Z purchases for $1,405 a debt instrument that matures on 
December 31, 1999, and promises to pay on the maturity date $1,000 plus 
the increase, if any, in the price of a specified amount of a commodity 
from the issue date to the maturity date. The debt instrument was 
originally issued on December 31, 1996, for an issue price of $1,000. 
The comparable yield for the debt instrument is 10.25 percent, 
compounded semiannually, and the projected payment schedule for the debt 
instrument (determined as of the issue date) provides for a single 
payment at maturity of $1,350. At the time of the purchase, the debt 
instrument has an adjusted issue price of $1,162, assuming semiannual 
accrual periods ending on December 31 and June 30 of each year. The 
increase in the value of the debt instrument over its adjusted issue 
price is due to an increase in the expected amount of the contingent 
payment and not to a decrease in market interest rates. The debt 
instrument is a capital asset in the hands of Z. Z is a calendar year 
taxpayer.
    (ii) Allocation of the difference between basis and adjusted issue 
price. Z's basis in the debt instrument on July 1, 1998, is $1,405. 
Under paragraph (b)(9)(i)(A) of this section, Z allocates the $243 
difference between basis ($1,405) and adjusted issue price ($1,162) to 
the contingent payment at maturity. Z's allocation of the difference 
between basis and adjusted issue price is reasonable because the 
increase in the value of the debt instrument over its adjusted issue 
price is due to an increase in the expected amount of the contingent 
payment.
    (iii) Treatment of debt instrument for 1998. Based on the projected 
payment schedule, $60 of interest accrues on the debt instrument from 
July 1, 1998 to December 31, 1998 (the product of the debt instrument's 
adjusted issue price on July 1, 1998 ($1,162) and the comparable yield 
properly adjusted for the length of the accrual period (10.25 percent/
2)). Z has no net negative or positive adjustments for 1998. Thus, Z 
includes in income $60 of total daily portions of interest for 1998. On 
December 31, 1998, Z's adjusted basis in the debt instrument is $1,465 
($1,405 original basis, plus total daily portions of $60 for 1998).
    (iv) Effect of allocation to contingent payment at maturity. Assume 
that the payment actually made on December 31, 1999, is $1,400, rather 
than the projected $1,350. Thus, under paragraph (b)(6)(i) of this 
section, Z has a positive adjustment of $50 on December 31, 1999. In 
addition, under paragraph (b)(9)(i)(B) of this section, Z has a negative 
adjustment of $243 on December 31, 1999, which is attributable to the 
difference between Z's basis in the debt instrument on July 1, 1998, and 
the instrument's adjusted issue price on that date. As a result, Z has a 
net negative adjustment of $193 for 1999. This net negative adjustment 
reduces to zero the $128 total

[[Page 641]]

daily portions of interest Z would otherwise include in income in 1999. 
Accordingly, Z has no interest income on the debt instrument for 1999. 
Because Z had $60 of interest inclusions for 1998, $60 of the remaining 
$65 net negative adjustment is treated by Z as an ordinary loss for 
1999. The remaining $5 of the net negative adjustment is a negative 
adjustment carryforward for 1999 that reduces the amount realized by Z 
on the retirement of the debt instrument from $1,350 to $1,345.
    (v) Loss at maturity. On December 31, 1999, Z's basis in the debt 
instrument is $1,350 ($1,405 original basis, plus total daily portions 
of $60 for 1998 and $128 for 1999, minus the negative adjustment of 
$243). As a result, Z realizes a loss of $5 on the retirement of the 
debt instrument (the difference between the amount realized on the 
retirement ($1,345) and Z's adjusted basis in the debt instrument 
($1,350)). Under paragraph (b)(8)(ii) of this section, the $5 loss is 
treated as loss from the retirement of the debt instrument. 
Consequently, Z realizes a total loss of $65 on the debt instrument for 
1999 (a $60 ordinary loss and a $5 capital loss).
    Example 2. Basis less than adjusted issue price. (i) Facts. On 
January 1, 1999, Y purchases for $910 a debt instrument that pays 7 
percent interest semiannually on June 30 and December 31 of each year, 
and that promises to pay on December 31, 2001, $1,000 plus or minus $10 
times the positive or negative difference, if any, between a specified 
amount and the value of an index on December 31, 2001. However, the 
payment on December 31, 2001, may not be less than $650. The debt 
instrument was originally issued on December 31, 1996, for an issue 
price of $1,000. The comparable yield for the debt instrument is 9.80 
percent, compounded semiannually, and the projected payment schedule for 
the debt instrument (determined as of the issue date) provides for 
semiannual payments of $35 and a contingent payment at maturity of 
$1,175. On January 1, 1999, the debt instrument has an adjusted issue 
price of $1,060, assuming semiannual accrual periods ending on December 
31 and June 30 of each year. Y is a calendar year taxpayer.
    (ii) Allocation of the difference between basis and adjusted issue 
price. Y's basis in the debt instrument on January 1, 1999, is $910. 
Under paragraph (b)(9)(i)(A) of this section, Y must allocate the $150 
difference between basis ($910) and adjusted issue price ($1,060) to 
daily portions of interest or to projected payments. These amounts will 
be positive adjustments taken into account at the time the daily 
portions accrue or the payments are made.
    (A) Assume that, because of a decrease in the relevant index, the 
expected value of the payment at maturity has declined by about 9 
percent. Based on forward prices on January 1, 1999, Y determines that 
approximately $105 of the difference between basis and adjusted issue 
price is allocable to the contingent payment. Y allocates the remaining 
$45 to daily portions of interest on a pro-rata basis (i.e., the amount 
allocated to an accrual period equals the product of $45 and a fraction, 
the numerator of which is the total daily portions for the accrual 
period and the denominator of which is the total daily portions 
remaining on the debt instrument on January 1, 1999). This allocation is 
reasonable.
    (B) Assume alternatively that, based on yields of comparable debt 
instruments and its purchase price for the debt instrument, Y determines 
that an appropriate yield for the debt instrument is 13 percent, 
compounded semiannually. Based on this determination, Y allocates $55.75 
of the difference between basis and adjusted issue price to daily 
portions of interest as follows: $15.19 to the daily portions of 
interest for the taxable year ending December 31, 1999; $18.40 to the 
daily portions of interest for the taxable year ending December 31, 
2000; and $22.16 to the daily portions of interest for the taxable year 
ending December 31, 2001. Y allocates the remaining $94.25 to the 
contingent payment at maturity. This allocation is reasonable.

    (ii) Fixed but deferred contingent payments. This paragraph 
(b)(9)(ii) provides rules that apply when the amount of a contingent 
payment becomes fixed before the payment is due. For purposes of 
paragraph (b) of this section, if a contingent payment becomes fixed 
within the 6-month period ending on the due date of the payment, the 
payment is treated as a contingent payment even after the payment is 
fixed. If a contingent payment becomes fixed more than 6 months before 
the payment is due, the following rules apply to the debt instrument.
    (A) Determining adjustments. The amount of the adjustment 
attributable to the contingent payment is equal to the difference 
between the present value of the amount that is fixed and the present 
value of the projected amount of the contingent payment. The present 
value of each amount is determined by discounting the amount from the 
date the payment is due to the date the payment becomes fixed, using a 
discount rate equal to the comparable yield on the debt instrument. The 
adjustment is treated as a positive or negative adjustment, as 
appropriate, on the date the contingent payment becomes fixed. See 
paragraph (b)(9)(ii)(G) of this section to determine the timing

[[Page 642]]

of the adjustment if all remaining contingent payments on the debt 
instrument become fixed substantially contemporaneously.
    (B) Payment schedule. The contingent payment is no longer treated as 
a contingent payment after the date the amount of the payment becomes 
fixed. On the date the contingent payment becomes fixed, the projected 
payment schedule for the debt instrument is modified prospectively to 
reflect the fixed amount of the payment. Therefore, no adjustment is 
made under paragraph (b)(3)(iv) of this section when the contingent 
payment is actually made.
    (C) Accrual period. Notwithstanding the determination under Sec.  
1.1272-1(b)(1)(ii) of accrual periods for the debt instrument, an 
accrual period ends on the day the contingent payment becomes fixed, and 
a new accrual period begins on the day after the day the contingent 
payment becomes fixed.
    (D) Adjustments to basis and adjusted issue price. The amount of any 
positive adjustment on a debt instrument determined under paragraph 
(b)(9)(ii)(A) of this section increases the adjusted issue price of the 
instrument and the holder's adjusted basis in the instrument. Similarly, 
the amount of any negative adjustment on a debt instrument determined 
under paragraph (b)(9)(ii)(A) of this section decreases the adjusted 
issue price of the instrument and the holder's adjusted basis in the 
instrument.
    (E) Basis different from adjusted issue price. If a holder's basis 
in a debt instrument exceeds the debt instrument's adjusted issue price, 
the amount allocated to a projected payment under paragraph (b)(9)(i) of 
this section is treated as a negative adjustment on the date the payment 
becomes fixed. If a holder's basis in a debt instrument is less than the 
debt instrument's adjusted issue price, the amount allocated to a 
projected payment under paragraph (b)(9)(i) of this section is treated 
as a positive adjustment on the date the payment becomes fixed.
    (F) Special rule for certain contingent interest payments. 
Notwithstanding paragraph (b)(9)(ii)(A) of this section, this paragraph 
(b)(9)(ii)(F) applies to contingent stated interest payments that are 
adjusted to compensate for contingencies regarding the reasonableness of 
the debt instrument's stated rate of interest. For example, this 
paragraph (b)(9)(ii)(F) applies to a debt instrument that provides for 
an increase in the stated rate of interest if the credit quality of the 
issuer or liquidity of the debt instrument deteriorates. Contingent 
stated interest payments of this type are recognized over the period to 
which they relate in a reasonable manner.
    (G) Special rule when all contingent payments become fixed. 
Notwithstanding paragraph (b)(9)(ii)(A) of this section, if all the 
remaining contingent payments on a debt instrument become fixed 
substantially contemporaneously, any positive or negative adjustments on 
the instrument are taken into account in a reasonable manner over the 
period to which they relate. For purposes of the preceding sentence, a 
payment is treated as a fixed payment if all remaining contingencies 
with respect to the payment are remote or incidental (within the meaning 
of Sec.  1.1275-2(h)).
    (H) Example. The following example illustrates the provisions of 
this paragraph (b)(9)(ii). In this example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes.

    Example: Fixed but deferred payments. (i) Facts. On December 31, 
1996, B, a calendar year taxpayer, purchases a debt instrument at 
original issue for $1,000. The debt instrument matures on December 31, 
2002, and provides for a payment of $1,000 at maturity. In addition, on 
December 31, 1999, and December 31, 2002, the debt instrument provides 
for payments equal to the excess of the average daily value of an index 
for the 6-month period ending on September 30 of the preceding year over 
a specified amount. The debt instrument's comparable yield is 10 
percent, compounded annually, and the instrument's projected payment 
schedule consists of a payment of $250 on December 31, 1999, and a 
payment of $1,439 on December 31, 2002. B uses annual accrual periods.
    (ii) Interest accrual for 1997. Based on the projected payment 
schedule, B includes a total of $100 of daily portions of interest in 
income in 1997. B's adjusted basis in the debt

[[Page 643]]

instrument and the debt instrument's adjusted issue price on December 
31, 1997, is $1,100.
    (iii) Interest accrual for 1998--(A) Adjustment. Based on the 
projected payment schedule, B would include $110 of total daily portions 
of interest in income in 1998. However, assume that on September 30, 
1998, the payment due on December 31, 1999, fixes at $300, rather than 
the projected $250. Thus, on September 30, 1998, B has an adjustment 
equal to the difference between the present value of the $300 fixed 
amount and the present value of the $250 projected amount of the 
contingent payment. The present values of the two payments are 
determined by discounting each payment from the date the payment is due 
(December 31, 1999) to the date the payment becomes fixed (September 30, 
1998), using a discount rate equal to 10 percent, compounded annually. 
The present value of the fixed payment is $266.30 and the present value 
of the projected amount of the contingent payment is $221.91. Thus, on 
September 30, 1998, B has a positive adjustment of $44.39 ($266.30-
$221.91).
    (B) Effect of adjustment. Under paragraph (b)(9)(ii)(C) of this 
section, B's accrual period ends on September 30, 1998. The daily 
portions of interest on the debt instrument for the period from January 
1, 1998 to September 30, 1998 total $81.51. The adjusted issue price of 
the debt instrument and B's adjusted basis in the debt instrument are 
thus increased over this period by $125.90 (the sum of the daily 
portions of interest of $81.51 and the positive adjustment of $44.39 
made at the end of the period) to $1,225.90. For purposes of all future 
accrual periods, including the new accrual period from October 1, 1998, 
to December 31, 1998, the debt instrument's projected payment schedule 
is modified to reflect a fixed payment of $300 on December 31, 1999. 
Based on the new adjusted issue price of the debt instrument and the new 
projected payment schedule, the yield on the debt instrument does not 
change.
    (C) Interest accrual for 1998. Based on the modified projected 
payment schedule, $29.56 of interest accrues during the accrual period 
that ends on December 31, 1998. Because B has no other adjustments 
during 1998, the $44.39 positive adjustment on September 30, 1998, 
results in a net positive adjustment for 1998, which is additional 
interest for that year. Thus, B includes $155.46 ($81.51 + $29.56 + 
$44.39) of interest in income in 1998. B's adjusted basis in the debt 
instrument and the debt instrument's adjusted issue price on December 
31, 1998, is $1,255.46 ($1,225.90 from the end of the prior accrual 
period plus $29.56 total daily portions for the current accrual period).

    (iii) Timing contingencies. This paragraph (b)(9)(iii) provides 
rules for debt instruments that have payments that are contingent as to 
time.
    (A) Treatment of certain options. If a taxpayer has an unconditional 
option to put or call the debt instrument, to exchange the debt 
instrument for other property, or to extend the maturity date of the 
debt instrument, the projected payment schedule is determined by using 
the principles of Sec.  1.1272-1(c)(5).
    (B) Other timing contingencies. [Reserved]
    (iv) Cross-border transactions--(A) Allocation of deductions. For 
purposes of Sec.  1.861-8, the holder of a debt instrument shall treat 
any deduction or loss treated as an ordinary loss under paragraph 
(b)(6)(iii)(B) or (b)(8)(ii) of this section as a deduction that is 
definitely related to the class of gross income to which income from 
such debt instrument belongs. Accordingly, if a U.S. person holds a debt 
instrument issued by a related controlled foreign corporation and, 
pursuant to section 904(d)(3) and the regulations thereunder, any 
interest accrued by such U.S. person with respect to such debt 
instrument would be treated as foreign source general limitation income, 
any deductions relating to a net negative adjustment will reduce the 
U.S. person's foreign source general limitation income. The holder shall 
apply the general rules relating to allocation and apportionment of 
deductions to any other deduction or loss realized by the holder with 
respect to the debt instrument.
    (B) Investments in United States real property. Notwithstanding 
paragraph (b)(8)(i) of this section, gain on the sale, exchange, or 
retirement of a debt instrument that is a United States real property 
interest is treated as gain for purposes of sections 897, 1445, and 
6039C.
    (v) Coordination with subchapter M and related provisions. For 
purposes of sections 852(c)(2) and 4982 and Sec.  1.852-11, any positive 
adjustment, negative adjustment, income, or loss on a debt instrument 
that occurs after October 31 of a taxable year is treated in the same 
manner as foreign currency gain or loss that is attributable to a 
section 988 transaction.
    (vi) Coordination with section 1092. A holder treats a negative 
adjustment

[[Page 644]]

and an issuer treats a positive adjustment as a loss with respect to a 
position in a straddle if the debt instrument is a position in a 
straddle and the contingency (or any portion of the contingency) to 
which the adjustment relates would be part of the straddle if entered 
into as a separate position.
    (c) Method for debt instruments not subject to the noncontingent 
bond method--(1) Applicability. This paragraph (c) applies to a 
contingent payment debt instrument (other than a tax-exempt obligation) 
that has an issue price determined under Sec.  1.1274-2. For example, 
this paragraph (c) generally applies to a contingent payment debt 
instrument that is issued for nonpublicly traded property.
    (2) Separation into components. If paragraph (c) of this section 
applies to a debt instrument (the overall debt instrument), the 
noncontingent payments are subject to the rules in paragraph (c)(3) of 
this section, and the contingent payments are accounted for separately 
under the rules in paragraph (c)(4) of this section.
    (3) Treatment of noncontingent payments. The noncontingent payments 
are treated as a separate debt instrument. The issue price of the 
separate debt instrument is the issue price of the overall debt 
instrument, determined under Sec.  1.1274-2(g). No interest payments on 
the separate debt instrument are qualified stated interest payments 
(within the meaning of Sec.  1.1273-1(c)) and the de minimis rules of 
section 1273(a)(3) and Sec.  1.1273-1(d) do not apply to the separate 
debt instrument.
    (4) Treatment of contingent payments--(i) In general. Except as 
provided in paragraph (c)(4)(iii) of this section, the portion of a 
contingent payment treated as interest under paragraph (c)(4)(ii) of 
this section is includible in gross income by the holder and deductible 
from gross income by the issuer in their respective taxable years in 
which the payment is made.
    (ii) Characterization of contingent payments as principal and 
interest--(A) General rule. A contingent payment is treated as a payment 
of principal in an amount equal to the present value of the payment, 
determined by discounting the payment at the test rate from the date the 
payment is made to the issue date. The amount of the payment in excess 
of the amount treated as principal under the preceding sentence is 
treated as a payment of interest.
    (B) Test rate. The test rate used for purposes of paragraph 
(c)(4)(ii)(A) of this section is the rate that would be the test rate 
for the overall debt instrument under Sec.  1.1274-4 if the term of the 
overall debt instrument began on the issue date of the overall debt 
instrument and ended on the date the contingent payment is made. 
However, in the case of a contingent payment that consists of a payment 
of stated principal accompanied by a payment of stated interest at a 
rate that exceeds the test rate determined under the preceding sentence, 
the test rate is the stated interest rate.
    (iii) Certain delayed contingent payments--(A) General rule. 
Notwithstanding paragraph (c)(4)(ii) of this section, if a contingent 
payment becomes fixed more than 6 months before the payment is due, the 
issuer and holder are treated as if the issuer had issued a separate 
debt instrument on the date the payment becomes fixed, maturing on the 
date the payment is due. This separate debt instrument is treated as a 
debt instrument to which section 1274 applies. The stated principal 
amount of this separate debt instrument is the amount of the payment 
that becomes fixed. An amount equal to the issue price of this debt 
instrument is characterized as interest or principal under the rules of 
paragraph (c)(4)(ii) of this section and accounted for as if this amount 
had been paid by the issuer to the holder on the date that the amount of 
the payment becomes fixed. To determine the issue price of the separate 
debt instrument, the payment is discounted at the test rate from the 
maturity date of the separate debt instrument to the date that the 
amount of the payment becomes fixed.
    (B) Test rate. The test rate used for purposes of paragraph 
(c)(4)(iii)(A) of this section is determined in the same manner as the 
test rate under paragraph (c)(4)(ii)(B) of this section is determined 
except that the date the contingent payment is due is used rather than 
the date the contingent payment is made.

[[Page 645]]

    (5) Basis different from adjusted issue price. This paragraph (c)(5) 
provides rules for a holder whose basis in a debt instrument is 
different from the instrument's adjusted issue price (e.g., a subsequent 
holder). This paragraph (c)(5), however, does not apply if the holder is 
reporting income under the installment method of section 453.
    (i) Allocation of basis. The holder must allocate basis to the 
noncontingent component (i.e., the right to the noncontingent payments) 
and to any separate debt instruments described in paragraph (c)(4)(iii) 
of this section in an amount up to the total of the adjusted issue price 
of the noncontingent component and the adjusted issue prices of the 
separate debt instruments. The holder must allocate the remaining basis, 
if any, to the contingent component (i.e., the right to the contingent 
payments).
    (ii) Noncontingent component. Any difference between the holder's 
basis in the noncontingent component and the adjusted issue price of the 
noncontingent component, and any difference between the holder's basis 
in a separate debt instrument and the adjusted issue price of the 
separate debt instrument, is taken into account under the rules for 
market discount, premium, and acquisition premium that apply to a 
noncontingent debt instrument.
    (iii) Contingent component. Amounts received by the holder that are 
treated as principal payments under paragraph (c)(4)(ii) of this section 
reduce the holder's basis in the contingent component. If the holder's 
basis in the contingent component is reduced to zero, any additional 
principal payments on the contingent component are treated as gain from 
the sale or exchange of the debt instrument. Any basis remaining on the 
contingent component on the date the final contingent payment is made 
increases the holder's adjusted basis in the noncontingent component 
(or, if there are no remaining noncontingent payments, is treated as 
loss from the sale or exchange of the debt instrument).
    (6) Treatment of a holder on sale, exchange, or retirement. This 
paragraph (c)(6) provides rules for the treatment of a holder on the 
sale, exchange, or retirement of a debt instrument subject to this 
paragraph (c). Under this paragraph (c)(6), the holder must allocate the 
amount received from the sale, exchange, or retirement of a debt 
instrument first to the noncontingent component and to any separate debt 
instruments described in paragraph (c)(4)(iii) of this section in an 
amount up to the total of the adjusted issue price of the noncontingent 
component and the adjusted issue prices of the separate debt 
instruments. The holder must allocate the remaining amount received, if 
any, to the contingent component.
    (i) Amount allocated to the noncontingent component. The amount 
allocated to the noncontingent component and any separate debt 
instruments is treated as an amount realized from the sale, exchange, or 
retirement of the noncontingent component or separate debt instrument.
    (ii) Amount allocated to the contingent component. The amount 
allocated to the contingent component is treated as a contingent payment 
that is made on the date of the sale, exchange, or retirement and is 
characterized as interest and principal under the rules of paragraph 
(c)(4)(ii) of this section.
    (7) Examples. The following examples illustrate the provisions of 
this paragraph (c). In each example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes.

    Example 1. Contingent interest payments. (i) Facts. A owns 
Blackacre, unencumbered depreciable real estate. On January 1, 1997, A 
sells Blackacre to B. As consideration for the sale, B makes a 
downpayment of $1,000,000 and issues to A a debt instrument that matures 
on December 31, 2001. The debt instrument provides for a payment of 
principal at maturity of $5,000,000 and a contingent payment of interest 
on December 31 of each year equal to a fixed percentage of the gross 
rents B receives from Blackacre in that year. Assume that the debt 
instrument is not issued in a potentially abusive situation. Assume also 
that on January 1, 1997, the short-term applicable Federal rate is 5 
percent, compounded annually, and the mid-term applicable Federal rate 
is 6 percent, compounded annually.
    (ii) Determination of issue price. Under Sec.  1.1274-2(g), the 
issue price of the debt instrument is $3,736,291, which is the present

[[Page 646]]

value, as of the issue date, of the $5,000,000 noncontingent payment due 
at maturity, calculated using a discount rate equal to the mid-term 
applicable Federal rate. Under Sec.  1.1012-1(g)(1), B's basis in 
Blackacre on January 1, 1997, is $4,736,291 ($1,000,000 down payment 
plus the $3,736,291 issue price of the debt instrument).
    (iii) Noncontingent payment treated as separate debt instrument. 
Under paragraph (c)(3) of this section, the right to the noncontingent 
payment of principal at maturity is treated as a separate debt 
instrument. The issue price of this separate debt instrument is 
$3,736,291 (the issue price of the overall debt instrument). The 
separate debt instrument has a stated redemption price at maturity of 
$5,000,000 and, therefore, OID of $1,263,709.
    (iv) Treatment of contingent payments. Assume that the amount of 
contingent interest that is fixed and paid on December 31, 1997, is 
$200,000. Under paragraph (c)(4)(ii) of this section, this payment is 
treated as consisting of a payment of principal of $190,476, which is 
the present value of the payment, determined by discounting the payment 
at the test rate of 5 percent, compounded annually, from the date the 
payment is made to the issue date. The remainder of the $200,000 payment 
($9,524) is treated as interest. The additional amount treated as 
principal gives B additional basis in Blackacre on December 31, 1997. 
The portion of the payment treated as interest is includible in gross 
income by A and deductible by B in their respective taxable years in 
which December 31, 1997 occurs. The remaining contingent payments on the 
debt instrument are accounted for similarly, using a test rate of 5 
percent, compounded annually, for the contingent payments due on 
December 31, 1998, and December 31, 1999, and a test rate of 6 percent, 
compounded annually, for the contingent payments due on December 31, 
2000, and December 31, 2001.
    Example 2. Fixed but deferred payment. (i) Facts. The facts are the 
same as in paragraph (c)(7) Example 1 of this section, except that the 
contingent payment of interest that is fixed on December 31, 1997, is 
not payable until December 31, 2001, the maturity date.
    (ii) Treatment of deferred contingent payment. Assume that the 
amount of the payment that becomes fixed on December 31, 1997, is 
$200,000. Because this amount is not payable until December 31, 2001, 
under paragraph (c)(4)(iii) of this section, a separate debt instrument 
to which section 1274 applies is treated as issued by B on December 31, 
1997 (the date the payment is fixed). The maturity date of this separate 
debt instrument is December 31, 2001 (the date on which the payment is 
due). The stated principal amount of this separate debt instrument is 
$200,000, the amount of the payment that becomes fixed. The imputed 
principal amount of the separate debt instrument is $158,419, which is 
the present value, as of December 31, 1997, of the $200,000 payment, 
computed using a discount rate equal to the test rate of the overall 
debt instrument (6 percent, compounded annually). An amount equal to the 
issue price of the separate debt instrument is treated as an amount paid 
on December 31, 1997, and characterized as interest and principal under 
the rules of paragraph (c)(4)(ii) of this section. The amount of the 
deemed payment characterized as principal is equal to $150,875, which is 
the present value, as of January 1, 1997 (the issue date of the overall 
debt instrument), of the deemed payment, computed using a discount rate 
of 5 percent, compounded annually. The amount of the deemed payment 
characterized as interest is $7,544 ($158,419 -$150,875), which is 
includible in gross income by A and deductible by B in their respective 
taxable years in which December 31, 1997 occurs.

    (d) Rules for tax-exempt obligations--(1) In general. Except as 
modified by this paragraph (d), the noncontingent bond method described 
in paragraph (b) of this section applies to a tax-exempt obligation (as 
defined in section 1275(a)(3)) to which this section applies. Paragraph 
(d)(2) of this section applies to certain tax-exempt obligations that 
provide for interest-based payments or revenue-based payments and 
paragraph (d)(3) of this section applies to all other obligations. 
Paragraph (d)(4) of this section provides rules for a holder whose basis 
in a tax-exempt obligation is different from the adjusted issue price of 
the obligation.
    (2) Certain tax-exempt obligations with interest-based or revenue-
based payments--(i) Applicability. This paragraph (d)(2) applies to a 
tax-exempt obligation that provides for interest-based payments or 
revenue-based payments.
    (ii) Interest-based payments. A tax-exempt obligation provides for 
interest-based payments if the obligation would otherwise qualify as a 
variable rate debt instrument under Sec.  1.1275-5 except that--
    (A) The obligation provides for more than one fixed rate;
    (B) The obligation provides for one or more caps, floors, or 
governors (or similar restrictions) that are fixed as of the issue date;
    (C) The interest on the obligation is not compounded or paid at 
least annually; or
    (D) The obligation provides for interest at one or more rates equal 
to the product of a qualified floating rate and

[[Page 647]]

a fixed multiple greater than zero and less than .65, or at one or more 
rates equal to the product of a qualified floating rate and a fixed 
multiple greater than zero and less than .65, increased or decreased by 
a fixed rate.
    (iii) Revenue-based payments. A tax-exempt obligation provides for 
revenue-based payments if the obligation--
    (A) Is issued to refinance (including a series of refinancings) an 
obligation (in a series of refinancings, the original obligation), the 
proceeds of which were used to finance a project or enterprise; and
    (B) Would otherwise qualify as a variable rate debt instrument under 
Sec.  1.1275-5 except that it provides for stated interest payments at 
least annually based on a single fixed percentage of the revenue, value, 
change in value, or other similar measure of the performance of the 
refinanced project or enterprise.
    (iv) Modifications to the noncontingent bond method. If a tax-exempt 
obligation is subject to this paragraph (d)(2), the following 
modifications to the noncontingent bond method described in paragraph 
(b) of this section apply to the obligation.
    (A) Daily portions and net positive adjustments. The daily portions 
of interest determined under paragraph (b)(3)(iii) of this section and 
any net positive adjustment on the obligation are interest for purposes 
of section 103.
    (B) Net negative adjustments. A net negative adjustment for a 
taxable year reduces the amount of tax-exempt interest the holder would 
otherwise account for on the obligation for the taxable year under 
paragraph (b)(3)(iii) of this section. If the net negative adjustment 
exceeds this amount, the excess is a nondeductible, noncapitalizable 
loss. If a regulated investment company (RIC) within the meaning of 
section 851 has a net negative adjustment in a taxable year that would 
be a nondeductible, noncapitalizable loss under the prior sentence, the 
RIC must use this loss to reduce its tax-exempt interest income on other 
tax-exempt obligations held during the taxable year.
    (C) Gains. Any gain recognized on the sale, exchange, or retirement 
of the obligation is gain from the sale or exchange of the obligation.
    (D) Losses. Any loss recognized on the sale, exchange, or retirement 
of the obligation is treated the same as a net negative adjustment under 
paragraph (d)(2)(iv)(B) of this section.
    (E) Special rule for losses and net negative adjustments. 
Notwithstanding paragraphs (d)(2)(iv) (B) and (D) of this section, on 
the sale, exchange, or retirement of the obligation, the holder may 
claim a loss from the sale or exchange of the obligation to the extent 
the holder has not received in cash or property the sum of its original 
investment in the obligation and any amounts included in income under 
paragraph (d)(4)(ii) of this section.
    (3) All other tax-exempt obligations--(i) Applicability. This 
paragraph (d)(3) applies to a tax-exempt obligation that is not subject 
to paragraph (d)(2) of this section.
    (ii) Modifications to the noncontingent bond method. If a tax-exempt 
obligation is subject to this paragraph (d)(3), the following 
modifications to the noncontingent bond method described in paragraph 
(b) of this section apply to the obligation.
    (A) Modification to projected payment schedule. The comparable yield 
for the obligation is the greater of the obligation's yield, determined 
without regard to the contingent payments, and the tax-exempt applicable 
Federal rate that applies to the obligation. The Internal Revenue 
Service publishes the tax-exempt applicable Federal rate for each month 
in the Internal Revenue Bulletin (see Sec.  601.601(d)(2)(ii) of this 
chapter).
    (B) Daily portions. The daily portions of interest determined under 
paragraph (b)(3)(iii) of this section are interest for purposes of 
section 103.
    (C) Adjustments. A net positive adjustment on the obligation is 
treated as gain to the holder from the sale or exchange of the 
obligation in the taxable year of the adjustment. A net negative 
adjustment on the obligation is treated as a loss to the holder from the 
sale or exchange of the obligation in the taxable year of the 
adjustment.
    (D) Gains and losses. Any gain or loss recognized on the sale, 
exchange, or retirement of the obligation is gain or

[[Page 648]]

loss from the sale or exchange of the obligation.
    (4) Basis different from adjusted issue price. This paragraph (d)(4) 
provides rules for a holder whose basis in a tax-exempt obligation is 
different from the adjusted issue price of the obligation. The rules of 
paragraph (b)(9)(i) of this section do not apply to tax-exempt 
obligations.
    (i) Basis greater than adjusted issue price. If the holder's basis 
in the obligation exceeds the obligation's adjusted issue price, the 
holder, upon acquiring the obligation, must allocate this difference to 
daily portions of interest on a yield to maturity basis over the 
remaining term of the obligation. The amount allocated to a daily 
portion of interest is not deductible by the holder. However, the 
holder's basis in the obligation is reduced by the amount allocated to a 
daily portion of interest on the date the daily portion accrues.
    (ii) Basis less than adjusted issue price. If the holder's basis in 
the obligation is less than the obligation's adjusted issue price, the 
holder, upon acquiring the obligation, must allocate this difference to 
daily portions of interest on a yield to maturity basis over the 
remaining term of the obligation. The amount allocated to a daily 
portion of interest is includible in income by the holder as ordinary 
income on the date the daily portion accrues. The holder's adjusted 
basis in the obligation is increased by the amount includible in income 
by the holder under this paragraph (d)(4)(ii) on the date the daily 
portion accrues.
    (iii) Premium and discount rules do not apply. The rules for 
accruing premium and discount in sections 171, 1276, and 1288 do not 
apply. Other rules of those sections continue to apply to the extent 
relevant.
    (e) Amounts treated as interest under this section. Amounts treated 
as interest under this section are treated as OID for all purposes of 
the Internal Revenue Code.
    (f) Effective date. This section applies to debt instruments issued 
on or after August 13, 1996.

[T.D. 8674, 61 FR 30143, June 14, 1996, as amended by T.D. 8709, 62 FR 
618, Jan. 6, 1997; T.D. 8838, 64 FR 48547, Sept. 7, 1999; T.D. 9157, 69 
FR 52829, Aug. 30, 2004; T.D. 9599, 77 FR 56538, Sept. 13, 2012; T.D. 
9612, 78 FR 8016, Feb. 5, 2013]



Sec.  1.1275-5  Variable rate debt instruments.

    (a) Applicability--(1) In general. This section provides rules for 
variable rate debt instruments. Except as provided in paragraph (a)(6) 
of this section, a variable rate debt instrument is a debt instrument 
that meets the conditions described in paragraphs (a)(2), (3), (4), and 
(5) of this section. If a debt instrument that provides for a variable 
rate of interest does not qualify as a variable rate debt instrument, 
the debt instrument is a contingent payment debt instrument. See Sec.  
1.1275-4 for the treatment of a contingent payment debt instrument. See 
Sec.  1.1275-6 for a taxpayer's treatment of a variable rate debt 
instrument and a hedge.
    (2) Principal payments. The issue price of the debt instrument must 
not exceed the total noncontingent principal payments by more than an 
amount equal to the lesser of--
    (i) .015 multiplied by the product of the total noncontingent 
principal payments and the number of complete years to maturity from the 
issue date (or, in the case of an installment obligation, the weighted 
average maturity as defined in Sec.  1.1273-1(e)(3)); or
    (ii) 15 percent of the total noncontingent principal payments.
    (3) Stated interest--(i) General rule. The debt instrument must not 
provide for any stated interest other than stated interest (compounded 
or paid at least annually) at--
    (A) One or more qualified floating rates;
    (B) A single fixed rate and one or more qualified floating rates;
    (C) A single objective rate; or
    (D) A single fixed rate and a single objective rate that is a 
qualified inverse floating rate.
    (ii) Certain debt instruments bearing interest at a fixed rate for 
an initial period.

[[Page 649]]

If interest on a debt instrument is stated at a fixed rate for an 
initial period of 1 year or less followed by a variable rate that is 
either a qualified floating rate or an objective rate for a subsequent 
period, and the value of the variable rate on the issue date is intended 
to approximate the fixed rate, the fixed rate and the variable rate 
together constitute a single qualified floating rate or objective rate. 
A fixed rate and a variable rate will be conclusively presumed to meet 
the requirements of the preceding sentence if the value of the variable 
rate on the issue date does not differ from the value of the fixed rate 
by more than .25 percentage points (25 basis points).
    (4) Current value. The debt instrument must provide that a qualified 
floating rate or objective rate in effect at any time during the term of 
the instrument is set at a current value of that rate. A current value 
is the value of the rate on any day that is no earlier than 3 months 
prior to the first day on which that value is in effect and no later 
than 1 year following that first day.
    (5) No contingent principal payments. Except as provided in 
paragraph (a)(2) of this section, the debt instrument must not provide 
for any principal payments that are contingent (within the meaning of 
Sec.  1.1275-4(a)).
    (6) Special rule for debt instruments issued for nonpublicly traded 
property. A debt instrument (other than a tax-exempt obligation) that 
would otherwise qualify as a variable rate debt instrument under this 
section is not a variable rate debt instrument if section 1274 applies 
to the instrument and any stated interest payments on the instrument are 
treated as contingent payments under Sec.  1.1274-2. This paragraph 
(a)(6) applies to debt instruments issued on or after August 13, 1996.
    (b) Qualified floating rate--(1) In general. A variable rate is a 
qualified floating rate if variations in the value of the rate can 
reasonably be expected to measure contemporaneous variations in the cost 
of newly borrowed funds in the currency in which the debt instrument is 
denominated. The rate may measure contemporaneous variations in 
borrowing costs for the issuer of the debt instrument or for issuers in 
general. Except as provided in paragraph (b)(2) of this section, a 
multiple of a qualified floating rate is not a qualified floating rate. 
If a debt instrument provides for two or more qualified floating rates 
that can reasonably be expected to have approximately the same values 
throughout the term of the instrument, the qualified floating rates 
together constitute a single qualified floating rate. Two or more 
qualified floating rates will be conclusively presumed to meet the 
requirements of the preceding sentence if the values of all rates on the 
issue date are within .25 percentage points (25 basis points) of each 
other.
    (2) Certain rates based on a qualified floating rate. For a debt 
instrument issued on or after August 13, 1996, a variable rate is a 
qualified floating rate if it is equal to either--
    (i) The product of a qualified floating rate described in paragraph 
(b)(1) of this section and a fixed multiple that is greater than .65 but 
not more than 1.35; or
    (ii) The product of a qualified floating rate described in paragraph 
(b)(1) of this section and a fixed multiple that is greater than .65 but 
not more than 1.35, increased or decreased by a fixed rate.
    (3) Restrictions on the stated rate of interest. A variable rate is 
not a qualified floating rate if it is subject to a restriction or 
restrictions on the maximum stated interest rate (cap), a restriction or 
restrictions on the minimum stated interest rate (floor), a restriction 
or restrictions on the amount of increase or decrease in the stated 
interest rate (governor), or other similar restrictions. Notwithstanding 
the preceding sentence, the following restrictions will not cause a 
variable rate to fail to be a qualified floating rate--
    (i) A cap, floor, or governor that is fixed throughout the term of 
the debt instrument;
    (ii) A cap or similar restriction that is not reasonably expected as 
of the issue date to cause the yield on the debt instrument to be 
significantly less than the expected yield determined without the cap;
    (iii) A floor or similar restriction that is not reasonably expected 
as of the issue date to cause the yield on the debt instrument to be 
significantly

[[Page 650]]

more than the expected yield determined without the floor; or
    (iv) A governor or similar restriction that is not reasonably 
expected as of the issue date to cause the yield on the debt instrument 
to be significantly more or significantly less than the expected yield 
determined without the governor.
    (c) Objective rate--(1) Definition--(i) In general. For debt 
instruments issued on or after August 13, 1996, an objective rate is a 
rate (other than a qualified floating rate) that is determined using a 
single fixed formula and that is based on objective financial or 
economic information. For example, an objective rate generally includes 
a rate that is based on one or more qualified floating rates or on the 
yield of actively traded personal property (within the meaning of 
section 1092(d)(1)).
    (ii) Exception. For purposes of paragraph (c)(1)(i) of this section, 
an objective rate does not include a rate based on information that is 
within the control of the issuer (or a related party within the meaning 
of section 267(b) or 707(b)(1)) or that is unique to the circumstances 
of the issuer (or a related party within the meaning of section 267(b) 
or 707(b)(1)), such as dividends, profits, or the value of the issuer's 
stock. However, a rate does not fail to be an objective rate merely 
because it is based on the credit quality of the issuer.
    (2) Other objective rates to be specified by Commissioner. The 
Commissioner may designate in the Internal Revenue Bulletin variable 
rates other than those described in paragraph (c)(1) of this section 
that will be treated as objective rates (see Sec.  601.601(d)(2)(ii) of 
this chapter).
    (3) Qualified inverse floating rate. An objective rate described in 
paragraph (c)(1) of this section is a qualified inverse floating rate 
if--
    (i) The rate is equal to a fixed rate minus a qualified floating 
rate; and
    (ii) The variations in the rate can reasonably be expected to 
inversely reflect contemporaneous variations in the qualified floating 
rate (disregarding any restrictions on the rate that are described in 
paragraphs (b)(3)(i), (b)(3)(ii), (b)(3)(iii), and (b)(3)(iv) of this 
section).
    (4) Significant front-loading or back-loading of interest. 
Notwithstanding paragraph (c)(1) of this section, a variable rate of 
interest on a debt instrument is not an objective rate if it is 
reasonably expected that the average value of the rate during the first 
half of the instrument's term will be either significantly less than or 
significantly greater than the average value of the rate during the 
final half of the instrument's term.
    (5) Tax-exempt obligations. Notwithstanding paragraph (c)(1) of this 
section, in the case of a tax-exempt obligation (within the meaning of 
section 1275(a)(3)), a variable rate is an objective rate only if it is 
a qualified inverse floating rate or a qualified inflation rate. A rate 
is a qualified inflation rate if the rate measures contemporaneous 
changes in inflation based on a general inflation index.
    (d) Examples. The following examples illustrate the rules of 
paragraphs (b) and (c) of this section. For purposes of these examples, 
assume that the debt instrument is not a tax-exempt obligation. In 
addition, unless otherwise provided, assume that the rate is not 
reasonably expected to result in a significant front-loading or back-
loading of interest and that the rate is not based on objective 
financial or economic information that is within the control of the 
issuer (or a related party) or that is unique to the circumstances of 
the issuer (or a related party).

    Example 1. Rate based on LIBOR. X issues a debt instrument that 
provides for annual payments of interest at a rate equal to the value of 
the 1-year London Interbank Offered Rate (LIBOR) at the end of each 
year. Variations in the value of 1-year LIBOR over the term of the debt 
instrument can reasonably be expected to measure contemporaneous 
variations in the cost of newly borrowed funds over that term. 
Accordingly, the rate is a qualified floating rate.
    Example 2. Rate increased by a fixed amount. X issues a debt 
instrument that provides for annual payments of interest at a rate equal 
to 200 basis points (2 percent) plus the current value, at the end of 
each year, of the average yield on 1-year Treasury securities as 
published in Federal Reserve bulletins. Variations in the value of this 
interest rate can reasonably be expected to measure contemporaneous 
variations in the cost of newly borrowed funds. Accordingly, the rate is 
a qualified floating rate.

[[Page 651]]

    Example 3. Rate based on commercial paper rate. X issues a debt 
instrument that provides for a rate of interest that is periodically 
adjusted to equal the current interest rate of Bank's commercial paper. 
Variations in the value of this interest rate can reasonably be expected 
to measure contemporaneous variations in the cost of newly borrowed 
funds. Accordingly, the rate is a qualified floating rate.
    Example 4. Rate based on changes in the value of a commodity index. 
On January 1, 1997, X issues a debt instrument that provides for annual 
interest payments at the end of each year at a rate equal to the 
percentage increase, if any, in the value of an index for the year 
immediately preceding the payment. The index is based on the prices of 
several actively traded commodities. Variations in the value of this 
interest rate cannot reasonably be expected to measure contemporaneous 
variations in the cost of newly borrowed funds. Accordingly, the rate is 
not a qualified floating rate. However, because the rate is based on 
objective financial information using a single fixed formula, the rate 
is an objective rate.
    Example 5. Rate based on a percentage of S&P 500 Index. On January 
1, 1997, X issues a debt instrument that provides for annual interest 
payments at the end of each year based on a fixed percentage of the 
value of the S&P 500 Index. Variations in the value of this interest 
rate cannot reasonably be expected to measure contemporaneous variations 
in the cost of newly borrowed funds and, therefore, the rate is not a 
qualified floating rate. Although the rate is described in paragraph 
(c)(1)(i) of this section, the rate is not an objective rate because, 
based on historical data, it is reasonably expected that the average 
value of the rate during the first half of the instrument's term will be 
significantly less than the average value of the rate during the final 
half of the instrument's term.
    Example 6. Rate based on issuer's profits. On January 1, 1997, Z 
issues a debt instrument that provides for annual interest payments 
equal to 1 percent of Z's gross profits earned during the year 
immediately preceding the payment. Variations in the value of this 
interest rate cannot reasonably be expected to measure contemporaneous 
variations in the cost of newly borrowed funds. Accordingly, the rate is 
not a qualified floating rate. In addition, because the rate is based on 
information that is unique to the issuer's circumstances, the rate is 
not an objective rate.
    Example 7. Rate based on a multiple of an interest index. On January 
1, 1997, Z issues a debt instrument with annual interest payments at a 
rate equal to two times the value of 1-year LIBOR as of the payment 
date. Because the rate is a multiple greater than 1.35 times a qualified 
floating rate, the rate is not a qualified floating rate. However, 
because the rate is based on objective financial information using a 
single fixed formula, the rate is an objective rate.
    Example 8. Variable rate based on the cost of borrowed funds in a 
foreign currency. On January 1, 1997, Y issues a 5-year dollar 
denominated debt instrument that provides for annual interest payments 
at a rate equal to the value of 1-year French franc LIBOR as of the 
payment date. Variations in the value of French franc LIBOR do not 
measure contemporaneous changes in the cost of newly borrowed funds in 
dollars. As a result, the rate is not a qualified floating rate for an 
instrument denominated in dollars. However, because the rate is based on 
objective financial information using a single fixed formula, the rate 
is an objective rate.
    Example 9. Qualified inverse floating rate. On January 1, 1997, X 
issues a debt instrument that provides for annual interest payments at 
the end of each year at a rate equal to 12 percent minus the value of 1-
year LIBOR as of the payment date. On the issue date, the value of 1-
year LIBOR is 6 percent. Because the rate can reasonably be expected to 
inversely reflect contemporaneous variations in 1-year LIBOR, it is a 
qualified inverse floating rate. However, if the value of 1-year LIBOR 
on the issue date were 11 percent rather than 6 percent, the rate would 
not be a qualified inverse floating rate because the rate could not 
reasonably be expected to inversely reflect contemporaneous variations 
in 1-year LIBOR.
    Example 10. Rate based on an inflation index. On January 1, 1997, X 
issues a debt instrument that provides for annual interest payments at 
the end of each year at a rate equal to 400 basis points (4 percent) 
plus the annual percentage change in a general inflation index (e.g., 
the Consumer Price Index, U.S. City Average, All Items, for all Urban 
Consumers, seasonally unadjusted). The rate, however, may not be less 
than zero. Variations in the value of this interest rate cannot 
reasonably be expected to measure contemporaneous variations in the cost 
of newly borrowed funds. Accordingly, the rate is not a qualified 
floating rate. However, because the rate is based on objective economic 
information using a single fixed formula, the rate is an objective rate.

    (e) Qualified stated interest and OID with respect to a variable 
rate debt instrument--(1) In general. This paragraph (e) provides rules 
to determine the amount and accrual of OID and qualified stated interest 
on a variable rate debt instrument. In general, the rules convert the 
debt instrument into a fixed rate debt instrument and then apply the 
general OID rules to the debt instrument. The issue price of a variable 
rate debt instrument, however, is not determined under this paragraph 
(e). See Sec. Sec.  1.1273-2

[[Page 652]]

and 1.1274-2 to determine the issue price of a variable rate debt 
instrument.
    (2) Variable rate debt instrument that provides for annual payments 
of interest at a single variable rate. If a variable rate debt 
instrument provides for stated interest at a single qualified floating 
rate or objective rate and the interest is unconditionally payable in 
cash or in property (other than debt instruments of the issuer), or will 
be constructively received under section 451, at least annually, the 
following rules apply to the instrument:
    (i) All stated interest with respect to the debt instrument is 
qualified stated interest.
    (ii) The amount of qualified stated interest and the amount of OID, 
if any, that accrues during an accrual period is determined under the 
rules applicable to fixed rate debt instruments by assuming that the 
variable rate is a fixed rate equal to--
    (A) In the case of a qualified floating rate or qualified inverse 
floating rate, the value, as of the issue date, of the qualified 
floating rate or qualified inverse floating rate; or
    (B) In the case of an objective rate (other than a qualified inverse 
floating rate), a fixed rate that reflects the yield that is reasonably 
expected for the debt instrument.
    (iii) The qualified stated interest allocable to an accrual period 
is increased (or decreased) if the interest actually paid during an 
accrual period exceeds (or is less than) the interest assumed to be paid 
during the accrual period under paragraph (e)(2)(ii) of this section.
    (3) All other variable rate debt instruments except for those that 
provide for a fixed rate. If a variable rate debt instrument is not 
described in paragraph (e)(2) of this section and does not provide for 
interest payable at a fixed rate (other than an initial fixed rate 
described in paragraph (a)(3)(ii) of this section), the amount of 
interest and OID accruals for the instrument are determined under this 
paragraph (e)(3).
    (i) Step one: Determine the fixed rate substitute for each variable 
rate provided under the debt instrument--(A) Qualified floating rate. 
The fixed rate substitute for each qualified floating rate provided for 
in the debt instrument is the value of each rate as of the issue date. 
If, however, a variable rate debt instrument provides for two or more 
qualified floating rates with different intervals between interest 
adjustment dates, the fixed rate substitutes for the rates must be based 
on intervals that are equal in length. For example, if a 4-year debt 
instrument provides for 24 monthly interest payments based on the value 
of the 30-day commercial paper rate on each payment date followed by 8 
quarterly interest payments based on the value of quarterly LIBOR on 
each payment date, the fixed rate substitutes may be based on the 
values, as of the issue date, of the 90-day commercial paper rate and 
quarterly LIBOR. Alternatively, the fixed rate substitutes may be based 
on the values, as of the issue date, of the 30-day commercial paper rate 
and monthly LIBOR.
    (B) Qualified inverse floating rate. The fixed rate substitute for a 
qualified inverse floating rate is the value of the qualified inverse 
floating rate as of the issue date.
    (C) Objective rate. The fixed rate substitute for an objective rate 
(other than a qualified inverse floating rate) is a fixed rate that 
reflects the yield that is reasonably expected for the debt instrument.
    (ii) Step two: Construct the equivalent fixed rate debt instrument. 
The equivalent fixed rate debt instrument has terms that are identical 
to those provided under the variable rate debt instrument, except that 
the equivalent fixed rate debt instrument provides for the fixed rate 
substitutes (determined in paragraph (e)(3)(i) of this section) in lieu 
of the qualified floating rates or objective rate provided under the 
variable rate debt instrument.
    (iii) Step three: Determine the amount of qualified stated interest 
and OID with respect to the equivalent fixed rate debt instrument. The 
amount of qualified stated interest and OID, if any, are determined for 
the equivalent fixed rate debt instrument under the rules applicable to 
fixed rate debt instruments and are taken into account as if the holder 
held the equivalent fixed rate debt instrument.

[[Page 653]]

    (iv) Step four: Make appropriate adjustments for actual variable 
rates. Qualified stated interest or OID allocable to an accrual period 
must be increased (or decreased) if the interest actually accrued or 
paid during an accrual period exceeds (or is less than) the interest 
assumed to be accrued or paid during the accrual period under the 
equivalent fixed rate debt instrument. This increase or decrease is an 
adjustment to qualified stated interest for the accrual period if the 
equivalent fixed rate debt instrument (as determined under paragraph 
(e)(3)(ii) of this section) provides for qualified stated interest and 
the increase or decrease is reflected in the amount actually paid during 
the accrual period. Otherwise, this increase or decrease is an 
adjustment to OID for the accrual period.
    (v) Examples. The following examples illustrate the rules in 
paragraphs (e) (2) and (3) of this section:

    Example 1. Equivalent fixed rate debt instrument. (i) Facts. X 
purchases at original issue a 6-year variable rate debt instrument that 
provides for semiannual payments of interest. For the first 3 years, the 
rate of interest is the value of 6-month LIBOR on the payment date. For 
the final 3 years, the rate is the value of the 6-month T-bill rate on 
the payment date. On the issue date, the value of 6-month LIBOR is 3 
percent, compounded semiannually, and the 6-month T-bill rate is 2 
percent, compounded semiannually.
    (ii) Determination of equivalent fixed rate debt instrument. Under 
paragraph (e)(3)(i) of this section, the fixed rate substitute for 6-
month LIBOR is 3 percent, compounded semiannually, and the fixed rate 
substitute for the 6-month T-bill rate is 2 percent, compounded 
semiannually. Under paragraph (e)(3)(ii) of this section, the equivalent 
fixed rate debt instrument is a 6-year debt instrument that provides for 
semiannual payments of interest at 3 percent, compounded semiannually, 
for the first 3 years followed by 2 percent, compounded semiannually, 
for the final 3 years.
    Example 2. Equivalent fixed rate debt instrument with de minimis 
OID. (i) Facts. Y purchases at original issue, for $100,000, a 4-year 
variable rate debt instrument that has a stated principal amount of 
$100,000, payable at maturity. The debt instrument provides for monthly 
payments of interest at the end of each month. For the first year, the 
interest rate is the monthly commercial paper rate and for the last 3 
years, the interest rate is the monthly commercial paper rate plus 100 
basis points. On the issue date, the monthly commercial paper rate is 3 
percent, compounded monthly.
    (ii) Equivalent fixed rate debt instrument. Under paragraph 
(e)(3)(ii) of this section, the equivalent fixed rate debt instrument 
for the variable rate debt instrument is a 4-year debt instrument that 
has an issue price and stated principal amount of $100,000. The 
equivalent fixed rate debt instrument provides for monthly payments of 
interest at 3 percent, compounded monthly, for the first year ($250 per 
month) and monthly payments of interest at 4 percent, compounded 
monthly, for the last 3 years ($333.33 per month).
    (iii) De minimis OID. Under Sec.  1.1273-1(a), because a portion 
(100 basis points) of each interest payment in the final 3 years is not 
a qualified stated interest payment, the equivalent fixed rate debt 
instrument has OID of $2,999.88 ($102,999.88 -$100,000). However, under 
Sec.  1.1273-1(d)(4) (the de minimis rule relating to teaser rates and 
interest holidays), the stated redemption price at maturity of the 
equivalent fixed rate debt instrument is $100,999.96 ($100,000 (issue 
price) plus $999.96 (the greater of the amount of foregone interest 
($999.96) and the amount equal to the excess of the instrument's stated 
principal amount over its issue price ($0)). Thus, the equivalent fixed 
rate debt instrument is treated as having OID of $999.96 ($100,999.96 -
$100,000). Because this amount is less than the de minimis amount of 
$1,010 (0.0025 multiplied by $100,999.96 multiplied by 4 complete years 
to maturity), the equivalent fixed rate debt instrument has de minimis 
OID. Therefore, the variable rate debt instrument has zero OID and all 
stated interest payments are qualified stated interest payments.
    Example 3. Adjustment to qualified stated interest for actual 
payment of interest. (i) Facts. On January 1, 1995, Z purchases at 
original issue, for $90,000, a variable rate debt instrument that 
matures on January 1, 1997, and has a stated principal amount of 
$100,000, payable at maturity. The debt instrument provides for annual 
payments of interest on January 1 of each year, beginning on January 1, 
1996. The amount of interest payable is the value of annual LIBOR on the 
payment date. The value of annual LIBOR on January 1, 1995, and January 
1, 1996, is 5 percent, compounded annually. The value of annual LIBOR on 
January 1, 1997, is 7 percent, compounded annually.
    (ii) Accrual of OID and qualified stated interest. Under paragraph 
(e)(2) of this section, the variable rate debt instrument is treated as 
a 2-year debt instrument that has an issue price of $90,000, a stated 
principal amount of $100,000, and interest payments of $5,000 at the end 
of each year. The debt instrument has $10,000 of OID and the annual 
interest

[[Page 654]]

payments of $5,000 are qualified stated interest payments. Under Sec.  
1.1272-1, the debt instrument has a yield of 10.82 percent, compounded 
annually. The amount of OID allocable to the first annual accrual period 
(assuming Z uses annual accrual periods) is $4,743.25 (($90,000 x 
.1082)- $5,000), and the amount of OID allocable to the second annual 
accrual period is $5,256.75 ($100,000-$94,743.25). Under paragraph 
(e)(2)(iii) of this section, the $2,000 difference between the $7,000 
interest payment actually made at maturity and the $5,000 interest 
payment assumed to be made at maturity under the equivalent fixed rate 
debt instrument is treated as additional qualified stated interest for 
the period.

    (4) Variable rate debt instrument that provides for a single fixed 
rate--(i) General rule. If a variable rate debt instrument provides for 
stated interest either at one or more qualified floating rates or at a 
qualified inverse floating rate and in addition provides for stated 
interest at a single fixed rate (other than an initial fixed rate 
described in paragraph (a)(3)(ii) of this section), the amount of 
interest and OID are determined using the method of paragraph (e)(3) of 
this section, as modified by this paragraph (e)(4). For purposes of 
paragraphs (e)(3)(i) through (e)(3)(iii) of this section, the variable 
rate debt instrument is treated as if it provided for a qualified 
floating rate (or a qualified inverse floating rate, if the debt 
instrument provides for a qualified inverse floating rate), rather than 
the fixed rate. The qualified floating rate (or qualified inverse 
floating rate) replacing the fixed rate must be such that the fair 
market value of the variable rate debt instrument as of the issue date 
would be approximately the same as the fair market value of an otherwise 
identical debt instrument that provides for the qualified floating rate 
(or qualified inverse floating rate) rather than the fixed rate.
    (ii) Example. The following example illustrates the rule in 
paragraph (e)(4)(i) of this section.

    Example: Variable rate debt instrument that provides for a single 
fixed rate. (i) Facts. On January 1, 1995, X purchases at original 
issue, for $100,000, a variable rate debt instrument that matures on 
January 1, 2001, and that has a stated principal amount of $100,000. The 
debt instrument provides for payments of interest on January 1 of each 
year, beginning on January 1, 1996. For the first 4 years, the interest 
rate is 4 percent, compounded annually, and for the last 2 years the 
interest rate is the value of 1-year LIBOR, as of the payment date, plus 
200 basis points. On January 1, 1995, the value of 1-year LIBOR is 2 
percent, compounded annually. In addition, assume that on January 1, 
1995, the variable rate debt instrument has approximately the same fair 
market value as an otherwise identical debt instrument that provides for 
an interest rate equal to the value of 1-year LIBOR, as of the payment 
date, for the first 4 years.
    (ii) Equivalent fixed rate debt instrument. Under paragraph 
(e)(4)(i) of this section, for purposes of paragraphs (e)(3)(i) through 
(e)(3)(iii) of this section, the variable rate debt instrument is 
treated as if it provided for an interest rate equal to the value of 1-
year LIBOR, as of the payment date, for the first 4 years. Under 
paragraph (e)(3)(ii) of this section, the equivalent fixed rate debt 
instrument for the variable rate debt instrument is a 6-year debt 
instrument that has an issue price and stated principal amount of 
$100,000. The equivalent fixed rate debt instrument provides for 
interest payments of $2,000 for the first 4 years and $4,000 for the 
last 2 years.
    (iii) Accrual of OID and qualified stated interest. Under Sec.  
1.1273-1, the equivalent fixed rate debt instrument has OID of $4,000 
because a portion (200 basis points) of each interest payment in the 
last 2 years is not a qualified stated interest payment. The $4,000 of 
OID is allocable over the 6-year term of the debt instrument under Sec.  
1.1272-1. Under paragraph (e)(3)(iv) of this section, the difference 
between the $4,000 payment made in the first 4 years and the $2,000 
payment assumed to be made on the equivalent fixed rate debt instrument 
in those years is an adjustment to qualified stated interest. In 
addition, any difference between the amount actually paid in each of the 
last 2 years and the $4,000 payment assumed to be made on the equivalent 
fixed rate debt instrument is an adjustment to qualified stated 
interest.

    (f) Special rule for certain reset bonds. Notwithstanding paragraph 
(e) of this section, this paragraph (f) provides a special rule for a 
variable rate debt instrument that provides for stated interest at a 
fixed rate for an initial interval, and provides that on the date 
immediately following the end of the initial interval (the effective 
date) the stated interest rate will be a rate determined under a 
procedure (such as an auction procedure) so that the fair market value 
of the instrument on the effective date will be a fixed amount (the 
reset value). Solely for purposes of calculating the accrual of OID, the

[[Page 655]]

variable rate debt instrument is treated as--
    (1) Maturing on the date immediately preceding the effective date 
for an amount equal to the reset value; and
    (2) Reissued on the effective date for an amount equal to the reset 
value.

[T.D. 8517, 59 FR 4827, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30153, June 14, 1996]



Sec.  1.1275-6  Integration of qualifying debt instruments.

    (a) In general. This section generally provides for the integration 
of a qualifying debt instrument with a hedge or combination of hedges if 
the combined cash flows of the components are substantially equivalent 
to the cash flows on a fixed or variable rate debt instrument. The 
integrated transaction is generally subject to the rules of this section 
rather than the rules to which each component of the transaction would 
be subject on a separate basis. The purpose of this section is to permit 
a more appropriate determination of the character and timing of income, 
deductions, gains, or losses than would be permitted by separate 
treatment of the components. The rules of this section affect only the 
taxpayer who holds (or issues) the qualifying debt instrument and enters 
into the hedge.
    (b) Definitions--(1) Qualifying debt instrument. A qualifying debt 
instrument is any debt instrument (including an integrated transaction 
as defined in paragraph (c) of this section) other than--
    (i) A tax-exempt obligation as defined in section 1275(a)(3);
    (ii) A debt instrument to which section 1272(a)(6) applies (certain 
interests in or mortgages held by a REMIC, and certain other debt 
instruments with payments subject to acceleration); or
    (iii) A debt instrument that is subject to Sec.  1.483-4 or Sec.  
1.1275-4(c) (certain contingent payment debt instruments issued for 
nonpublicly traded property).
    (2) Section 1.1275-6 hedge--(i) In general. A Sec.  1.1275-6 hedge 
is any financial instrument (as defined in paragraph (b)(3) of this 
section) if the combined cash flows of the financial instrument and the 
qualifying debt instrument permit the calculation of a yield to maturity 
(under the principles of section 1272), or the right to the combined 
cash flows would qualify under Sec.  1.1275-5 as a variable rate debt 
instrument that pays interest at a qualified floating rate or rates 
(except for the requirement that the interest payments be stated as 
interest). A financial instrument is not a Sec.  1.1275-6 hedge, 
however, if the resulting synthetic debt instrument does not have the 
same term as the remaining term of the qualifying debt instrument. A 
financial instrument that hedges currency risk is not a Sec.  1.1275-6 
hedge.
    (ii) Limitations--(A) A debt instrument issued by a taxpayer and a 
debt instrument held by the taxpayer cannot be part of the same 
integrated transaction.
    (B) A debt instrument can be a Sec.  1.1275-6 hedge only if it is 
issued substantially contemporaneously with, and has the same maturity 
(including rights to accelerate or delay payments) as, the qualifying 
debt instrument.
    (3) Financial instrument. For purposes of this section, a financial 
instrument is a spot, forward, or futures contract, an option, a 
notional principal contract, a debt instrument, or a similar instrument, 
or combination or series of financial instruments. Stock is not a 
financial instrument for purposes of this section.
    (4) Synthetic debt instrument. The synthetic debt instrument is the 
hypothetical debt instrument with the same cash flows as the combined 
cash flows of the qualifying debt instrument and the Sec.  1.1275-6 
hedge.
    (c) Integrated transaction--(1) Integration by taxpayer. Except as 
otherwise provided in this section, a qualifying debt instrument and a 
Sec.  1.1275-6 hedge are an integrated transaction if all of the 
following requirements are satisfied:
    (i) The taxpayer satisfies the identification requirements of 
paragraph (e) of this section on or before the date the taxpayer enters 
into the Sec.  1.1275-6 hedge.
    (ii) None of the parties to the Sec.  1.1275-6 hedge are related 
within the meaning of section 267(b) or 707(b)(1), or, if the parties 
are related, the party providing the hedge uses, for Federal income tax 
purposes, a mark-to-market method of

[[Page 656]]

accounting for the hedge and all similar or related transactions.
    (iii) Both the qualifying debt instrument and the Sec.  1.1275-6 
hedge are entered into by the same individual, partnership, trust, 
estate, or corporation (regardless of whether the corporation is a 
member of an affiliated group of corporations that files a consolidated 
return).
    (iv) If the taxpayer is a foreign person engaged in a U.S. trade or 
business and the taxpayer issues or acquires a qualifying debt 
instrument, or enters into a Sec.  1.1275-6 hedge, through the trade or 
business, all items of income and expense associated with the qualifying 
debt instrument and the Sec.  1.1275-6 hedge (other than interest 
expense that is subject to Sec.  1.882-5) would have been effectively 
connected with the U.S. trade or business throughout the term of the 
qualifying debt instrument had this section not applied.
    (v) Neither the qualifying debt instrument, nor any other debt 
instrument that is part of the same issue as the qualifying debt 
instrument, nor the Sec.  1.1275-6 hedge was, with respect to the 
taxpayer, part of an integrated transaction that was terminated or 
otherwise legged out of within the 30 days immediately preceding the 
date that would be the issue date of the synthetic debt instrument.
    (vi) The qualifying debt instrument is issued or acquired by the 
taxpayer on or before the date of the first payment on the Sec.  1.1275-
6 hedge, whether made or received by the taxpayer (including a payment 
made to purchase the hedge). If the qualifying debt instrument is issued 
or acquired by the taxpayer after, but substantially contemporaneously 
with, the date of the first payment on the Sec.  1.1275-6 hedge, the 
qualifying debt instrument is treated, solely for purposes of this 
paragraph (c)(1)(vi), as meeting the requirements of the preceding 
sentence.
    (vii) Neither the Sec.  1.1275-6 hedge nor the qualifying debt 
instrument was, with respect to the taxpayer, part of a straddle (as 
defined in section 1092(c)) prior to the issue date of the synthetic 
debt instrument.
    (2) Integration by Commissioner. The Commissioner may treat a 
qualifying debt instrument and a financial instrument (whether entered 
into by the taxpayer or by a related party) as an integrated transaction 
if the combined cash flows on the qualifying debt instrument and 
financial instrument are substantially the same as the combined cash 
flows required for the financial instrument to be a Sec.  1.1275-6 
hedge. The Commissioner, however, may not integrate a transaction unless 
the qualifying debt instrument either is subject to Sec.  1.1275-4 or is 
subject to Sec.  1.1275-5 and pays interest at an objective rate. The 
circumstances under which the Commissioner may require integration 
include, but are not limited to, the following:
    (i) A taxpayer fails to identify a qualifying debt instrument and 
the Sec.  1.1275-6 hedge under paragraph (e) of this section.
    (ii) A taxpayer issues or acquires a qualifying debt instrument and 
a related party (within the meaning of section 267(b) or 707(b)(1)) 
enters into the Sec.  1.1275-6 hedge.
    (iii) A taxpayer issues or acquires a qualifying debt instrument and 
enters into the Sec.  1.1275-6 hedge with a related party (within the 
meaning of section 267(b) or 707(b)(1)).
    (iv) The taxpayer legs out of an integrated transaction and within 
30 days enters into a new Sec.  1.1275-6 hedge with respect to the same 
qualifying debt instrument or another debt instrument that is part of 
the same issue.
    (d) Special rules for legging into and legging out of an integrated 
transaction--(1) Legging into--(i) Definition. Legging into an 
integrated transaction under this section means that a Sec.  1.1275-6 
hedge is entered into after the date the qualifying debt instrument is 
issued or acquired by the taxpayer, and the requirements of paragraph 
(c)(1) of this section are satisfied on the date the Sec.  1.1275-6 
hedge is entered into (the leg-in date).
    (ii) Treatment. If a taxpayer legs into an integrated transaction, 
the taxpayer treats the qualifying debt instrument under the applicable 
rules for taking interest and OID into account up to the leg-in date, 
except that the day before the leg-in date is treated as the end of an 
accrual period. As of the

[[Page 657]]

leg-in date, the qualifying debt instrument is subject to the rules of 
paragraph (f) of this section.
    (iii) Anti-abuse rule. If a taxpayer legs into an integrated 
transaction with a principal purpose of deferring or accelerating income 
or deductions on the qualifying debt instrument, the Commissioner may--
    (A) Treat the qualifying debt instrument as sold for its fair market 
value on the leg-in date; or
    (B) Refuse to allow the taxpayer to integrate the qualifying debt 
instrument and the Sec.  1.1275-6 hedge.
    (2) Legging out--(i) Definition--(A) Legging out if the taxpayer has 
integrated. If a taxpayer has integrated a qualifying debt instrument 
and a Sec.  1.1275-6 hedge under paragraph (c)(1) of this section, 
legging out means that, prior to the maturity of the synthetic debt 
instrument, the Sec.  1.1275-6 hedge ceases to meet the requirements for 
a Sec.  1.1275-6 hedge, the taxpayer fails to meet any requirement of 
paragraph (c)(1) of this section, or the taxpayer disposes of or 
otherwise terminates all or a part of the qualifying debt instrument or 
Sec.  1.1275-6 hedge. If the taxpayer fails to meet the requirements of 
paragraph (c)(1) of this section but meets the requirements of paragraph 
(c)(2) of this section, the Commissioner may treat the taxpayer as not 
legging out.
    (B) Legging out if the Commissioner has integrated. If the 
Commissioner has integrated a qualifying debt instrument and a financial 
instrument under paragraph (c)(2) of this section, legging out means 
that, prior to the maturity of the synthetic debt instrument, the 
requirements for Commissioner integration under paragraph (c)(2) of this 
section are not met or the taxpayer fails to meet the requirements for 
taxpayer integration under paragraph (c)(1) of this section and the 
Commissioner agrees to allow the taxpayer to be treated as legging out.
    (C) Exception for certain nonrecognition transactions. If, in a 
single nonrecognition transaction, a taxpayer disposes of, or ceases to 
be primarily liable on, the qualifying debt instrument and the Sec.  
1.1275-6 hedge, the taxpayer is not treated as legging out. Instead, the 
integrated transaction is treated under the rules governing the 
nonrecognition transaction. For example, if a holder of an integrated 
transaction is acquired in a reorganization under section 368(a)(1)(A), 
the holder is treated as disposing of the synthetic debt instrument in 
the reorganization rather than legging out. If the successor holder is 
not eligible for integrated treatment, the successor is treated as 
legging out.
    (ii) Operating rules. If a taxpayer legs out (or is treated as 
legging out) of an integrated transaction, the following rules apply:
    (A) The transaction is treated as an integrated transaction during 
the time the requirements of paragraph (c) (1) or (2) of this section, 
as appropriate, are satisfied.
    (B) Immediately before the taxpayer legs out, the taxpayer is 
treated as selling or otherwise terminating the synthetic debt 
instrument for its fair market value and, except as provided in 
paragraph (d)(2)(ii)(D) of this section, any income, deduction, gain, or 
loss is realized and recognized at that time.
    (C) If, immediately after the taxpayer legs out, the taxpayer holds 
or remains primarily liable on the qualifying debt instrument, 
adjustments are made to reflect any difference between the fair market 
value of the qualifying debt instrument and the adjusted issue price of 
the qualifying debt instrument. If, immediately after the taxpayer legs 
out, the taxpayer is a party to a Sec.  1.1275-6 hedge, the Sec.  
1.1275-6 hedge is treated as entered into at its fair market value.
    (D) If a taxpayer legs out of an integrated transaction by disposing 
of or otherwise terminating a Sec.  1.1275-6 hedge within 30 days of 
legging into the integrated transaction, then any loss or deduction 
determined under paragraph (d)(2)(ii)(B) of this section is not allowed. 
Appropriate adjustments are made to the qualifying debt instrument for 
any disallowed loss. The adjustments are taken into account on a yield 
to maturity basis over the remaining term of the qualifying debt 
instrument.
    (E) If a holder of a debt instrument subject to Sec.  1.1275-4 legs 
into an integrated transaction with respect to the instrument and 
subsequently legs out of the integrated transaction, any gain

[[Page 658]]

recognized under paragraph (d)(2)(ii) (B) or (C) of this section is 
treated as interest income to the extent determined under the principles 
of Sec.  1.1275-4(b)(8)(iii)(B) (rules for determining the character of 
gain on the sale of a debt instrument all of the payments on which have 
been fixed). If the synthetic debt instrument would qualify as a 
variable rate debt instrument, the equivalent fixed rate debt instrument 
determined under Sec.  1.1275-5(e) is used for this purpose.
    (e) Identification requirements. For each integrated transaction, a 
taxpayer must enter and retain as part of its books and records the 
following information--
    (1) The date the qualifying debt instrument was issued or acquired 
(or is expected to be issued or acquired) by the taxpayer and the date 
the Sec.  1.1275-6 hedge was entered into by the taxpayer;
    (2) A description of the qualifying debt instrument and the Sec.  
1.1275-6 hedge; and
    (3) A summary of the cash flows and accruals resulting from treating 
the qualifying debt instrument and the Sec.  1.1275-6 hedge as an 
integrated transaction (i.e., the cash flows and accruals on the 
synthetic debt instrument).
    (f) Taxation of integrated transactions--(1) General rule. An 
integrated transaction is generally treated as a single transaction by 
the taxpayer during the period that the transaction qualifies as an 
integrated transaction. Except as provided in paragraph (f)(12) of this 
section, while a qualifying debt instrument and a Sec.  1.1275-6 hedge 
are part of an integrated transaction, neither the qualifying debt 
instrument nor the Sec.  1.1275-6 hedge is subject to the rules that 
would apply on a separate basis to the debt instrument and the Sec.  
1.1275-6 hedge, including section 1092 or Sec.  1.446-4. The rules that 
would govern the treatment of the synthetic debt instrument generally 
govern the treatment of the integrated transaction. For example, the 
integrated transaction may be subject to section 263(g) or, if the 
synthetic debt instrument would be part of a straddle, section 1092. 
Generally, the synthetic debt instrument is subject to sections 163(e) 
and 1271 through 1275, with terms as set forth in paragraphs (f) (2) 
through (13) of this section.
    (2) Issue date. The issue date of the synthetic debt instrument is 
the first date on which the taxpayer entered into all of the components 
of the synthetic debt instrument.
    (3) Term. The term of the synthetic debt instrument is the period 
beginning on the issue date of the synthetic debt instrument and ending 
on the maturity date of the qualifying debt instrument.
    (4) Issue price. The issue price of the synthetic debt instrument is 
the adjusted issue price of the qualifying debt instrument on the issue 
date of the synthetic debt instrument. If, as a result of entering into 
the Sec.  1.1275-6 hedge, the taxpayer pays or receives one or more 
payments that are substantially contemporaneous with the issue date of 
the synthetic debt instrument, the payments reduce or increase the issue 
price as appropriate.
    (5) Adjusted issue price. In general, the adjusted issue price of 
the synthetic debt instrument is determined under the principles of 
Sec.  1.1275-1(b).
    (6) Qualified stated interest. No amounts payable on the synthetic 
debt instrument are qualified stated interest within the meaning of 
Sec.  1.1273-1(c).
    (7) Stated redemption price at maturity--(i) Synthetic debt 
instruments that are borrowings. In general, if the synthetic debt 
instrument is a borrowing, the instrument's stated redemption price at 
maturity is the sum of all amounts paid or to be paid on the qualifying 
debt instrument and the Sec.  1.1275-6 hedge, reduced by any amounts 
received or to be received on the Sec.  1.1275-6 hedge.
    (ii) Synthetic debt instruments that are held by the taxpayer. In 
general, if the synthetic debt instrument is held by the taxpayer, the 
instrument's stated redemption price at maturity is the sum of all 
amounts received or to be received by the taxpayer on the qualifying 
debt instrument and the Sec.  1.1275-6 hedge, reduced by any amounts 
paid or to be paid by the taxpayer on the Sec.  1.1275-6 hedge.
    (iii) Certain amounts ignored. For purposes of this paragraph 
(f)(7), if an amount paid or received on the Sec.  1.1275-6 hedge is 
taken into account under

[[Page 659]]

paragraph (f)(4) of this section to determine the issue price of the 
synthetic debt instrument, the amount is not taken into account to 
determine the synthetic debt instrument's stated redemption price at 
maturity.
    (8) Source of interest income and allocation of expense. The source 
of interest income from the synthetic debt instrument is determined by 
reference to the source of income of the qualifying debt instrument 
under sections 861(a)(1) and 862(a)(1). For purposes of section 904, the 
character of interest from the synthetic debt instrument is determined 
by reference to the character of the interest income from the qualifying 
debt instrument. Interest expense is allocated and apportioned under 
regulations under section 861 or under Sec.  1.882-5.
    (9) Effectively connected income. If the requirements of paragraph 
(c)(1)(iv) of this section are satisfied, any interest income resulting 
from the synthetic debt instrument entered into by the foreign person is 
treated as effectively connected with a U.S. trade or business, and any 
interest expense resulting from the synthetic debt instrument entered 
into by the foreign person is allocated and apportioned under Sec.  
1.882-5.
    (10) Not a short-term obligation. For purposes of section 
1272(a)(2)(C), a synthetic debt instrument is not treated as a short-
term obligation.
    (11) Special rules in the event of integration by the Commissioner. 
If the Commissioner requires integration, appropriate adjustments are 
made to the treatment of the synthetic debt instrument, and, if 
necessary, the qualifying debt instrument and financial instrument. For 
example, the Commissioner may treat a financial instrument that is not a 
Sec.  1.1275-6 hedge as a Sec.  1.1275-6 hedge when applying the rules 
of this section. The issue date of the synthetic debt instrument is the 
date determined appropriate by the Commissioner to require integration.
    (12) Retention of separate transaction rules for certain purposes. 
This paragraph (f)(12) provides for the retention of separate 
transaction rules for certain purposes. In addition, by publication in 
the Internal Revenue Bulletin (see Sec.  601.601(d)(2)(ii) of this 
chapter), the Commissioner may require use of separate transaction rules 
for any aspect of an integrated transaction.
    (i) Foreign persons that enter into integrated transactions giving 
rise to U.S. source income not effectively connected with a U.S. trade 
or business. If a foreign person enters into an integrated transaction 
that gives rise to U.S. source interest income (determined under the 
source rules for the synthetic debt instrument) not effectively 
connected with a U.S. trade or business of the foreign person, paragraph 
(f) of this section does not apply for purposes of sections 871(a), 881, 
1441, 1442, and 6049. These sections of the Internal Revenue Code are 
applied to the qualifying debt instrument and the Sec.  1.1275-6 hedge 
on a separate basis.
    (ii) Relationship between taxpayer and other persons. Because the 
rules of this section affect only the taxpayer that enters into an 
integrated transaction (i.e., either the issuer or a particular holder 
of a qualifying debt instrument), any provisions of the Internal Revenue 
Code or regulations that govern the relationship between the taxpayer 
and any other person are applied on a separate basis. For example, 
taxpayers must comply with any reporting or disclosure requirements on 
any qualifying debt instrument as if it were not part of an integrated 
transaction. Thus, if required under Sec.  1.1275-4(b)(4), an issuer of 
a contingent payment debt instrument subject to integrated treatment 
must provide the projected payment schedule to holders. Similarly, if a 
U.S. corporation enters into an integrated transaction that includes a 
notional principal contract, the source of any payment received by the 
counterparty on the notional principal contract is determined under 
Sec.  1.863-7 as if the contract were not part of an integrated 
transaction, and, if received by a foreign person who is not engaged in 
a U.S. trade or business, the payment is non-U.S. source income that is 
not subject to U.S. withholding tax.
    (13) Coordination with consolidated return rules. If a taxpayer 
enters into a Sec.  1.1275-6 hedge with a member of the same 
consolidated group (the counterparty) and the Sec.  1.1275-6 hedge is 
part of an integrated transaction for the taxpayer, the Sec.  1.1275-6 
hedge is not

[[Page 660]]

treated as an intercompany transaction for purposes of Sec.  1.1502-13. 
If the taxpayer legs out of integrated treatment, the taxpayer and the 
counterparty are each treated as disposing of its position in the Sec.  
1.1275-6 hedge under the principles of paragraph (d)(2) of this section. 
If the Sec.  1.1275-6 hedge remains in existence after the leg-out date, 
the Sec.  1.1275-6 hedge is treated under the rules that would otherwise 
apply to the transaction (including Sec.  1.1502-13 if the transaction 
is between members).
    (g) Predecessors and successors. For purposes of this section, any 
reference to a taxpayer, holder, issuer, or person includes, where 
appropriate, a reference to a predecessor or successor. For purposes of 
the preceding sentence, a predecessor is a transferor of an asset or 
liability (including an integrated transaction) to a transferee (the 
successor) in a nonrecognition transaction. Appropriate adjustments, if 
necessary, are made in the application of this section to predecessors 
and successors.
    (h) Examples. The following examples illustrate the provisions of 
this section. In each example, assume that the qualifying debt 
instrument is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the debt instrument is a 
debt instrument for Federal income tax purposes.

    Example 1. Issuer hedge. (i) Facts. On January 1, 1997, V, a 
domestic corporation, issues a 5-year debt instrument for $1,000. The 
debt instrument provides for annual payments of interest at a rate equal 
to the value of 1-year LIBOR and a principal payment of $1,000 at 
maturity. On the same day, V enters into a 5-year interest rate swap 
agreement with an unrelated party. Under the swap, V pays 6 percent and 
receives 1-year LIBOR on a notional principal amount of $1,000. The 
payments on the swap are fixed and made on the same days as the payments 
on the debt instrument. On January 1, 1997, V identifies the debt 
instrument and the swap as an integrated transaction in accordance with 
the requirements of paragraph (e) of this section.
    (ii) Eligibility for integration. The debt instrument is a 
qualifying debt instrument. The swap is a Sec.  1.1275-6 hedge because 
it is a financial instrument and a yield to maturity on the combined 
cash flows of the swap and the debt instrument can be calculated. V has 
met the identification requirements, and the other requirements of 
paragraph (c)(1) of this section are satisfied. Therefore, the 
transaction is an integrated transaction under this section.
    (iii) Treatment of the synthetic debt instrument. The synthetic debt 
instrument is a 5-year debt instrument that has an issue price of $1,000 
and provides for annual interest payments of $60 and a principal payment 
of $1,000 at maturity. Under paragraph (f)(6) of this section, no 
amounts payable on the synthetic debt instrument are qualified stated 
interest. Thus, under paragraph (f)(7)(i) of this section, the synthetic 
debt instrument has a stated redemption price at maturity of $1,300 (the 
sum of all amounts to be paid on the qualifying debt instrument and the 
swap, reduced by amounts to be received on the swap). The synthetic debt 
instrument, therefore, has $300 of OID.
    Example 2. Issuer hedge with an option. (i) Facts. On December 31, 
1996, W, a domestic corporation, issues for $1,000 a debt instrument 
that matures on December 31, 1999. The debt instrument has a stated 
principal amount of $1,000 payable at maturity. The debt instrument also 
provides for a payment at maturity equal to $10 times the increase, if 
any, in the value of a nationally known composite index of stocks from 
December 31, 1996, to the maturity date. On December 31, 1996, W 
purchases from an unrelated party an option that pays $10 times the 
increase, if any, in the stock index from December 31, 1996, to December 
31, 1999. W pays $250 for the option. On December 31, 1996, W identifies 
the debt instrument and option as an integrated transaction in 
accordance with the requirements of paragraph (e) of this section.
    (ii) Eligibility for integration. The debt instrument is a 
qualifying debt instrument. The option is a Sec.  1.1275-6 hedge because 
it is a financial instrument and a yield to maturity on the combined 
cash flows of the option and the debt instrument can be calculated. W 
has met the identification requirements, and the other requirements of 
paragraph (c)(1) of this section are satisfied. Therefore, the 
transaction is an integrated transaction under this section.
    (iii) Treatment of the synthetic debt instrument. Under paragraph 
(f)(4) of this section, the issue price of the synthetic debt instrument 
is equal to the issue price of the debt instrument ($1,000) reduced by 
the payment for the option ($250). As a result, the synthetic debt 
instrument is a 3-year debt instrument with an issue price of $750. 
Under paragraph (f)(7) of this section, the synthetic debt instrument 
has a stated redemption price at maturity of $1,000 (the $250 payment 
for the option is not taken into account). The synthetic debt 
instrument, therefore, has $250 of OID.
    Example 3. Hedge with prepaid swap. (i) Facts. On January 1, 1997, H 
purchases for [pound]1,000 a 5-year debt instrument that provides

[[Page 661]]

for semiannual payments based on 6-month pound LIBOR and a payment of 
the [pound]1,000 principal at maturity. On the same day, H enters into a 
swap with an unrelated third party under which H receives semiannual 
payments, in pounds, of 10 percent, compounded semiannually, and makes 
semiannual payments, in pounds, of 6-month pound LIBOR on a notional 
principal amount of [pound]1,000. Payments on the swap are fixed and 
made on the same dates as the payments on the debt instrument. H also 
makes a [pound]162 prepayment on the swap. On January 1, 1997, H 
identifies the swap and the debt instrument as an integrated transaction 
in accordance with the requirements of paragraph (e) of this section.
    (ii) Eligibility for integration. The debt instrument is a 
qualifying debt instrument. The swap is a Sec.  1.1275-6 hedge because 
it is a financial instrument and a yield to maturity on the combined 
cash flows of the swap and the debt instrument can be calculated. 
Although the debt instrument is denominated in pounds, the swap hedges 
only interest rate risk, not currency risk. Therefore, the transaction 
is an integrated transaction under this section. See Sec.  1.988-5(a) 
for the treatment of a debt instrument and a swap if the swap hedges 
currency risk.
    (iii) Treatment of the synthetic debt instrument. Under paragraph 
(f)(4) of this section, the issue price of the synthetic debt instrument 
is equal to the issue price of the debt instrument ([pound]1,000) 
increased by the prepayment on the swap ([pound]162). As a result, the 
synthetic debt instrument is a 5-year debt instrument that has an issue 
price of [pound]1,162 and provides for semiannual interest payments of 
[pound]50 and a principal payment of [pound]1,000 at maturity. Under 
paragraph (f)(6) of this section, no amounts payable on the synthetic 
debt instrument are qualified stated interest. Thus, under paragraph 
(f)(7)(ii) of this section, the synthetic debt instrument's stated 
redemption price at maturity is [pound]1,500 (the sum of all amounts to 
be received on the qualifying debt instrument and the Sec.  1.1275-6 
hedge, reduced by all amounts to be paid on the Sec.  1.1275-6 hedge 
other than the [pound]162 prepayment for the swap). The synthetic debt 
instrument, therefore, has [pound]338 of OID.
    Example 4. Legging into an integrated transaction by a holder. (i) 
Facts. On December 31, 1996, X corporation purchases for $1,000,000 a 
debt instrument that matures on December 31, 2006. The debt instrument 
provides for annual payments of interest at the rate of 6 percent and 
for a payment at maturity equal to $1,000,000, increased by the excess, 
if any, of the price of 1,000 units of a commodity on December 31, 2006, 
over $350,000, and decreased by the excess, if any, of $350,000 over the 
price of 1,000 units of the commodity on that date. The projected amount 
of the payment at maturity determined under Sec.  1.1275-4(b)(4) is 
$1,020,000. On December 31, 1999, X enters into a cash-settled forward 
contract with an unrelated party to sell 1,000 units of the commodity on 
December 31, 2006, for $450,000. On December 31, 1999, X also identifies 
the debt instrument and the forward contract as an integrated 
transaction in accordance with the requirements of paragraph (e) of this 
section.
    (ii) Eligibility for integration. X meets the requirements for 
integration as of December 31, 1999. Therefore, X legged into an 
integrated transaction on that date. Prior to that date, X treats the 
debt instrument under the applicable rules of Sec.  1.1275-4.
    (iii) Treatment of the synthetic debt instrument. As of December 31, 
1999, the debt instrument and the forward contract are treated as an 
integrated transaction. The issue price of the synthetic debt instrument 
is equal to the adjusted issue price of the qualifying debt instrument 
on the leg-in date, $1,004,804 (assuming one year accrual periods). The 
term of the synthetic debt instrument is from December 31, 1999, to 
December 31, 2006. The synthetic debt instrument provides for annual 
interest payments of $60,000 and a principal payment at maturity of 
$1,100,000 ($1,000,000 + $450,000 - $350,000). Under paragraph (f)(6) of 
this section, no amounts payable on the synthetic debt instrument are 
qualified stated interest. Thus, under paragraph (f)(7)(ii) of this 
section, the synthetic debt instrument's stated redemption price at 
maturity is $1,520,000 (the sum of all amounts to be received by X on 
the qualifying debt instrument and the Sec.  1.1275-6 hedge, reduced by 
all amounts to be paid by X on the Sec.  1.1275-6 hedge). The synthetic 
debt instrument, therefore, has $515,196 of OID.
    Example 5. Abusive leg-in. (i) Facts. On January 1, 1997, Y 
corporation purchases for $1,000,000 a debt instrument that matures on 
December 31, 2001. The debt instrument provides for annual payments of 
interest at the rate of 6 percent, a payment on December 31, 1999, of 
the increase, if any, in the price of a commodity from January 1, 1997, 
to December 31, 1999, and a payment at maturity of $1,000,000 and the 
increase, if any, in the price of the commodity from December 31, 1999 
to maturity. Because the debt instrument is a contingent payment debt 
instrument subject to Sec.  1.1275-4, Y accrues interest based on the 
projected payment schedule.
    (ii) Leg-in. By late 1999, the price of the commodity has 
substantially increased, and Y expects a positive adjustment on December 
31, 1999. In late 1999, Y enters into an agreement to exchange the two 
commodity based payments on the debt instrument for two payments on the 
same dates of $100,000 each. Y identifies the transaction as an 
integrated transaction in accordance with the requirements of paragraph 
(e) of this section. Y disposes of the hedge in early 2000.
    (iii) Treatment. The legging into an integrated transaction has the 
effect of deferring

[[Page 662]]

the positive adjustment from 1999 to 2000. Because Y legged into the 
integrated transaction with a principal purpose to defer the positive 
adjustment, the Commissioner may treat the debt instrument as sold for 
its fair market value on the leg-in date or refuse to allow integration.
    Example 6. Integration of offsetting debt instruments. (i) Facts. On 
January 1, 1997, Z issues two 10-year debt instruments. The first, Issue 
1, has an issue price of $1,000, pays interest annually at 6 percent, 
and, at maturity, pays $1,000, increased by $1 times the increase, if 
any, in the value of the S&P 100 Index over the term of the instrument 
and reduced by $1 times the decrease, if any, in the value of the S&P 
100 Index over the term of the instrument. However, the amount paid at 
maturity may not be less than $500 or more than $1,500. The second, 
Issue 2, has an issue price of $1,000, pays interest annually at 8 
percent, and, at maturity, pays $1,000, reduced by $1 times the 
increase, if any, in the value of the S&P 100 Index over the term of the 
instrument and increased by $1 times the decrease, if any, in the value 
of the S&P 100 Index over the term of the instrument. The amount paid at 
maturity may not be less than $500 or more than $1,500. On January 1, 
1997, Z identifies Issue 1 as the qualifying debt instrument, Issue 2 as 
a Sec.  1.1275-6 hedge, and otherwise meets the identification 
requirements of paragraph (e) of this section.
    (ii) Eligibility for integration. Both Issue 1 and Issue 2 are 
qualifying debt instruments. Z has met the identification requirements 
by identifying Issue 1 as the qualifying debt instrument and Issue 2 as 
the Sec.  1.1275-6 hedge. The other requirements of paragraph (c)(1) of 
this section are satisfied. Therefore, the transaction is an integrated 
transaction under this section.
    (iii) Treatment of the synthetic debt instrument. The synthetic debt 
instrument has an issue price of $2,000, provides for a payment at 
maturity of $2,000, and, in addition, provides for annual payments of 
$140. Under paragraph (f)(6) of this section, no amounts payable on the 
synthetic debt instrument are qualified stated interest. Thus, under 
paragraph (f)(7)(i) of this section, the synthetic debt instrument's 
stated redemption price at maturity is $3,400 (the sum of all amounts to 
be paid on the qualifying debt instrument and the Sec.  1.1275-6 hedge, 
reduced by amounts to be received on the Sec.  1.1275-6 hedge other than 
the $1,000 payment received on the issue date). The synthetic debt 
instrument, therefore, has $1,400 of OID.
    Example 7. Integrated transaction entered into by a foreign person. 
(i) Facts. X, a foreign person, enters into an integrated transaction by 
purchasing a qualifying debt instrument that pays U.S. source interest 
and entering into a notional principal contract with a U.S. corporation. 
Neither the income from the qualifying debt instrument nor the income 
from the notional principal contract is effectively connected with a 
U.S. trade or business. The notional principal contract is a Sec.  
1.1275-6 hedge.
    (ii) Treatment of integrated transaction. Under paragraph (f)(8) of 
this section, X will receive U.S. source income from the integrated 
transaction. However, under paragraph (f)(12)(i) of this section, the 
qualifying debt instrument and the notional principal contract are 
treated as if they are not part of an integrated transaction for 
purposes of determining whether tax is due and must be withheld on 
income. Accordingly, because the Sec.  1.1275-6 hedge would produce 
foreign source income under Sec.  1.863-7 to X if it were not part of an 
integrated transaction, any income on the Sec.  1.1275-6 hedge generally 
will not be subject to tax under sections 871(a) and 881, and the U.S. 
corporation that is the counterparty will not be required to withhold 
tax on payments under the Sec.  1.1275-6 hedge under sections 1441 and 
1442.

    (i) [Reserved]
    (j) Effective date. This section applies to a qualifying debt 
instrument issued on or after August 13, 1996. This section also applies 
to a qualifying debt instrument acquired by the taxpayer on or after 
August 13, 1996, if--
    (1) The qualifying debt instrument is a fixed rate debt instrument 
or a variable rate debt instrument; or
    (2) The qualifying debt instrument and the Sec.  1.1275-6 hedge are 
acquired by the taxpayer substantially contemporaneously.

[T.D. 8674, 61 FR 30155, June 14, 1996]



Sec.  1.1275-7  Inflation-indexed debt instruments.

    (a) Overview. This section provides rules for the Federal income tax 
treatment of an inflation-indexed debt instrument. If a debt instrument 
is an inflation-indexed debt instrument, one of two methods will apply 
to the instrument: the coupon bond method (as described in paragraph (d) 
of this section) or the discount bond method (as described in paragraph 
(e) of this section). Both methods determine the amount of OID that is 
taken into account each year by a holder or an issuer of an inflation-
indexed debt instrument.
    (b) Applicability--(1) In general. Except as provided in paragraph 
(b)(2) of this section, this section applies to an inflation-indexed 
debt instrument as

[[Page 663]]

defined in paragraph (c)(1) of this section. For example, this section 
applies to Treasury Inflation-Protected Securities (TIPS).
    (2) Exceptions. This section does not apply to an inflation-indexed 
debt instrument that is also--
    (i) A debt instrument (other than a tax-exempt obligation) described 
in section 1272(a)(2) (for example, U.S. savings bonds, certain loans 
between natural persons, and short-term taxable obligations); or
    (ii) A debt instrument subject to section 529 (certain debt 
instruments issued by qualified state tuition programs).
    (c) Definitions. The following definitions apply for purposes of 
this section:
    (1) Inflation-indexed debt instrument. An inflation-indexed debt 
instrument is a debt instrument that satisfies the following conditions:
    (i) Issued for cash. The debt instrument is issued for U.S. dollars 
and all payments on the instrument are denominated in U.S. dollars.
    (ii) Indexed for inflation and deflation. Except for a minimum 
guarantee payment (as defined in paragraph (c)(5) of this section), each 
payment on the debt instrument is indexed for inflation and deflation. A 
payment is indexed for inflation and deflation if the amount of the 
payment is equal to--
    (A) The amount that would be payable if there were no inflation or 
deflation over the term of the debt instrument, multiplied by
    (B) A ratio, the numerator of which is the value of the reference 
index for the date of the payment and the denominator of which is the 
value of the reference index for the issue date.
    (iii) No other contingencies. No payment on the debt instrument is 
subject to a contingency other than the inflation contingency or the 
contingencies described in this paragraph (c)(1)(iii). A debt instrument 
may provide for--
    (A) A minimum guarantee payment as defined in paragraph (c)(5) of 
this section; or
    (B) Payments under one or more alternate payment schedules if the 
payments under each payment schedule are indexed for inflation and 
deflation and a payment schedule for the debt instrument can be 
determined under Sec.  1.1272-1(c). (For purposes of this section, the 
rules of Sec.  1.1272-1(c) are applied to the debt instrument by 
assuming that no inflation or deflation will occur over the term of the 
instrument.)
    (2) Reference index. The reference index is an index used to measure 
inflation and deflation over the term of a debt instrument. To qualify 
as a reference index, an index must satisfy the following conditions:
    (i) The value of the index is reset once a month to a current value 
of a single qualified inflation index (as defined in paragraph (c)(3) of 
this section). For this purpose, a value of a qualified inflation index 
is current if the value has been updated and published within the 
preceding six month period.
    (ii) The reset occurs on the same day of each month (the reset 
date).
    (iii) The value of the index for any date between reset dates is 
determined through straight-line interpolation.
    (3) Qualified inflation index. A qualified inflation index is a 
general price or wage index that is updated and published at least 
monthly by an agency of the United States Government (for example, the 
non-seasonally adjusted U.S. City Average All Items Consumer Price Index 
for All Urban Consumers (CPI-U), which is published by the Bureau of 
Labor Statistics of the Department of Labor).
    (4) Inflation-adjusted principal amount. For any date, the 
inflation-adjusted principal amount of an inflation-indexed debt 
instrument is an amount equal to--
    (i) The outstanding principal amount of the debt instrument 
(determined as if there were no inflation or deflation over the term of 
the instrument), multiplied by
    (ii) A ratio, the numerator of which is the value of the reference 
index for the date and the denominator of which is the value of the 
reference index for the issue date.
    (5) Minimum guarantee payment. In general, a minimum guarantee 
payment is an additional payment made at maturity on a debt instrument 
if the total amount of inflation-adjusted principal paid on the 
instrument is less than the instrument's stated principal amount. The 
amount of the additional

[[Page 664]]

payment must be no more than the excess, if any, of the debt 
instrument's stated principal amount over the total amount of inflation-
adjusted principal paid on the instrument. An additional payment is not 
a minimum guarantee payment unless the qualified inflation index used to 
determine the reference index is either the CPI-U or an index designated 
for this purpose by the Commissioner in the Federal Register or the 
Internal Revenue Bulletin (see Sec.  601.601(d)(2)(ii) of this chapter). 
See paragraph (f)(4) of this section for the treatment of a minimum 
guarantee payment.
    (d) Coupon bond method--(1) In general. This paragraph (d) describes 
the method (coupon bond method) to be used to account for qualified 
stated interest and inflation adjustments (OID) on an inflation-indexed 
debt instrument described in paragraph (d)(2) of this section.
    (2) Applicability. The coupon bond method applies to an inflation-
indexed debt instrument that satisfies the following conditions:
    (i) Issued at par. The debt instrument is issued at par. A debt 
instrument is issued at par if the difference between its issue price 
and principal amount for the issue date is less than the de minimis 
amount. For this purpose, the de minimis amount is determined using the 
principles of Sec.  1.1273-1(d). See paragraph (g)(2) of this section, 
however, for the treatment of TIPS issued with more than a de minimis 
amount of premium.
    (ii) All stated interest is qualified stated interest. All stated 
interest on the debt instrument is qualified stated interest. For 
purposes of this paragraph (d), stated interest is qualified stated 
interest if the interest is unconditionally payable in cash, or is 
constructively received under section 451, at least annually at a single 
fixed rate. Stated interest is payable at a single fixed rate if the 
amount of each interest payment is determined by multiplying the 
inflation adjusted principal amount for the payment date by the single 
fixed rate.
    (3) Qualified stated interest. Under the coupon bond method, 
qualified stated interest is taken into account under the taxpayer's 
regular method of accounting. The amount of accrued but unpaid qualified 
stated interest as of any date is determined by using the principles of 
Sec.  1.446-3(e)(2)(ii) (relating to notional principal contracts). For 
example, if the interval between interest payment dates spans two 
taxable years, a taxpayer using an accrual method of accounting 
determines the amount of accrued qualified stated interest for the first 
taxable year by reference to the inflation-adjusted principal amount at 
the end of the first taxable year.
    (4) Inflation adjustments--(i) Current accrual. Under the coupon 
bond method, an inflation adjustment is taken into account for each 
taxable year in which the debt instrument is outstanding.
    (ii) Amount of inflation adjustment. For any relevant period (such 
as the taxable year or the portion of the taxable year during which a 
taxpayer holds an inflation-indexed debt instrument), the amount of the 
inflation adjustment is equal to--
    (A) The sum of the inflation-adjusted principal amount at the end of 
the period and the principal payments made during the period, minus
    (B) The inflation-adjusted principal amount at the beginning of the 
period.
    (iii) Positive inflation adjustments. A positive inflation 
adjustment is OID.
    (iv) Negative inflation adjustments. A negative inflation adjustment 
is a deflation adjustment that is taken into account under the rules of 
paragraph (f)(1) of this section.
    (5) Example. The following example illustrates the coupon bond 
method:

    Example: (i) Facts. On October 15, 1997, X purchases at original 
issue, for $100,000, a debt instrument that is indexed for inflation and 
deflation. The debt instrument matures on October 15, 1999, has a stated 
principal amount of $100,000, and has a stated interest rate of 5 
percent, compounded semiannually. The debt instrument provides that the 
principal amount is indexed to the CPI-U. Interest is payable on April 
15 and October 15 of each year. The amount of each interest payment is 
determined by multiplying the inflation-adjusted principal amount for 
each interest payment date by the stated interest rate, adjusted for the 
length of the accrual period. The debt instrument provides for a single 
payment of the inflation-adjusted principal amount at maturity. In 
addition,

[[Page 665]]

the debt instrument provides for an additional payment at maturity equal 
to the excess, if any, of $100,000 over the inflation-adjusted principal 
amount at maturity. X uses the cash receipts and disbursements method of 
accounting and the calendar year as its taxable year.
    (ii) Indexing methodology. The debt instrument provides that the 
inflation-adjusted principal amount for any day is determined by 
multiplying the principal amount of the instrument for the issue date by 
a ratio, the numerator of which is the value of the reference index for 
the day the inflation-adjusted principal amount is to be determined and 
the denominator of which is the value of the reference index for the 
issue date. The value of the reference index for the first day of a 
month is the value of the CPI-U for the third preceding month. The value 
of the reference index for any day other than the first day of a month 
is determined based on a straight-line interpolation between the value 
of the reference index for the first day of the month and the value of 
the reference index for the first day of the next month.
    (iii) Inflation-indexed debt instrument subject to the coupon bond 
method. Under paragraph (c)(1) of this section, the debt instrument is 
an inflation-indexed debt instrument. Because there is no difference 
between the debt instrument's issue price ($100,000) and its principal 
amount for the issue date ($100,000) and because all stated interest is 
qualified stated interest, the coupon bond method applies to the 
instrument.
    (iv) Reference index values. Assume the following table lists the 
relevant reference index values for 1997 through 1999:

------------------------------------------------------------------------
                                                       Reference index
                       Date                                 value
------------------------------------------------------------------------
Oct. 15, 1997.....................................                   100
Jan. 1, 1998......................................                   101
Apr. 15, 1998.....................................                   103
Oct. 15, 1998.....................................                   105
Jan. 1, 1999......................................                    99
------------------------------------------------------------------------

    (v) Treatment of X in 1997. X does not receive any payments of 
interest on the debt instrument in 1997. Therefore, X has no qualified 
stated interest income for 1997. X, however, must take into account the 
inflation adjustment for 1997. The inflation-adjusted principal amount 
for January 1, 1998, is $101,000 ($100,000 x 101/100). Therefore, the 
inflation adjustment for 1997 is $1,000, the inflation-adjusted 
principal amount for January 1, 1998 ($101,000) minus the principal 
amount for the issue date ($100,000). X includes the $1,000 inflation 
adjustment in income as OID in 1997.
    (vi) Treatment of X in 1998. In 1998, X receives two payments of 
interest: On April 15, 1998, X receives a payment of $2,575 ($100,000 x 
103/100 x .05/2), and on October 15, 1998, X receives a payment of 
$2,625 ($100,000 x 105/100 x .05/2). Therefore, X's qualified stated 
interest income for 1998 is $5,200 ($2,575 + $2,625). X also must take 
into account the inflation adjustment for 1998. The inflation-adjusted 
principal amount for January 1, 1999, is $99,000 ($100,000 x 99/100). 
Therefore, the inflation adjustment for 1998 is negative $2,000, the 
inflation-adjusted principal amount for January 1, 1999 ($99,000) minus 
the inflation-adjusted principal amount for January 1, 1998 ($101,000). 
Because the amount of the inflation adjustment is negative, it is a 
deflation adjustment. Under paragraph (f)(1)(i) of this section, X uses 
this $2,000 deflation adjustment to reduce the interest otherwise 
includible in income by X with respect to the debt instrument in 1998. 
Therefore, X includes $3,200 in income for 1998, the qualified stated 
interest income for 1998 ($5,200) minus the deflation adjustment 
($2,000).

    (e) Discount bond method--(1) In general. This paragraph (e) 
describes the method (discount bond method) to be used to account for 
OID on an inflation-indexed debt instrument that does not qualify for 
the coupon bond method.
    (2) No qualified stated interest. Under the discount bond method, no 
interest on an inflation-indexed debt instrument is qualified stated 
interest.
    (3) OID. Under the discount bond method, the amount of OID that 
accrues on an inflation-indexed debt instrument is determined as 
follows:
    (i) Step one: Determine the debt instrument's yield to maturity. The 
yield of the debt instrument is determined under the rules of Sec.  
1.1272-1(b)(1)(i). In calculating the yield under those rules for 
purposes of this paragraph (e)(3)(i), the payment schedule of the debt 
instrument is determined as if there were no inflation or deflation over 
the term of the instrument.
    (ii) Step two: Determine the accrual periods. The accrual periods 
are determined under the rules of Sec.  1.1272-1(b)(1)(ii). However, no 
accrual period can be longer than 1 month.
    (iii) Step three: Determine the percentage change in the reference 
index during the accrual period. The percentage change in the reference 
index during the accrual period is equal to--
    (A) The ratio of the value of the reference index at the end of the 
period to the value of the reference index at the beginning of the 
period,
    (B) Minus one.

[[Page 666]]

    (iv) Step four: Determine the OID allocable to each accrual period. 
The OID allocable to an accrual period (n) is determined by using the 
following formula:

OID((n) = AIP(n) x [r + inf(n) + (r x 
inf(n))]


in which,

r = yield of the debt instrument as determined under paragraph (e)(3)(i) 
of this section (adjusted for the length of the accrual period);
inf(n) = percentage change in the value of the reference 
index for period (n) as determined under paragraph (e)(3)(iii) of this 
section; and
AIP(n) = adjusted issue price at the beginning of period (n).

    (v) Step five: Determine the daily portions of OID. The daily 
portions of OID are determined and taken into account under the rules of 
Sec.  1.1272-1(b)(1)(iv). If the daily portions determined under this 
paragraph (e)(3)(v) are negative amounts, however, these amounts 
(deflation adjustments) are taken into account under the rules for 
deflation adjustments described in paragraph (f)(1) of this section.
    (4) Example. The following example illustrates the discount bond 
method:

    Example: (i) Facts. On November 15, 1997, X purchases at original 
issue, for $91,403, a zero-coupon debt instrument that is indexed for 
inflation and deflation. The principal amount of the debt instrument for 
the issue date is $100,000. The debt instrument provides for a single 
payment on November 15, 2000. The amount of the payment will be 
determined by multiplying $100,000 by a fraction, the numerator of which 
is the CPI-U for September 2000, and the denominator of which is the 
CPI-U for September 1997. The debt instrument also provides that in no 
event will the payment on November 15, 2000, be less than $100,000. X 
uses the cash receipts and disbursements method of accounting and the 
calendar year as its taxable year.
    (ii) Inflation-indexed debt instrument. Under paragraph (c)(1) of 
this section, the instrument is an inflation-indexed debt instrument. 
The debt instrument's principal amount for the issue date ($100,000) 
exceeds its issue price ($91,403) by $8,597, which is more than the de 
minimis amount for the debt instrument ($750). Therefore, the coupon 
bond method does not apply to the debt instrument. As a result, the 
discount bond method applies to the debt instrument.
    (iii) Yield and accrual period. Assume X chooses monthly accrual 
periods ending on the 15th day of each month. The yield of the debt 
instrument is determined as if there were no inflation or deflation over 
the term of the instrument. Therefore, based on the issue price of 
$91,403 and an assumed payment at maturity of $100,000, the yield of the 
debt instrument is 3 percent, compounded monthly.
    (iv) Percentage change in reference index. Assume that the CPI-U for 
September 1997 is 160; for October 1997 is 161.2; and for November 1997 
is 161.7. The value of the reference index for November 15, 1997, is 
160, the value of the CPI-U for September 1997. Similarly, the value of 
the reference index for December 15, 1997, is 161.2, and for January 15, 
1998, is 161.7. The percentage change in the reference index from 
November 15, 1997, to December 15, 1997, (inf1) is 0.0075 
(161.2/160-1); the percentage change in the reference index from 
December 15, 1997, to January 15, 1998, (inf2) is 0.0031 
(161.7/161.2-1).
    (v) Treatment of X in 1997. For the accrual period ending on 
December 15, 1997, r is .0025 (.03/12), inf1 is .0075, and 
the product of r and inf1 is .00001875. Under paragraph 
(e)(3) of this section, the amount of OID allocable to the accrual 
period ending on December 15, 1997, is $916. This amount is determined 
by multiplying the issue price of the debt instrument ($91,403) by 
.01001875 (the sum of r, inf1, and the product of r and 
inf1). The adjusted issue price of the debt instrument on 
December 15, 1997, is $92,319 ($91,403 + $916). For the accrual period 
ending on January 15, 1998, r is .0025 (.03/12), inf2 is 
.0031, and the product of r and inf2 is .00000775. Under 
paragraph (e)(3) of this section, the amount of OID allocable to the 
accrual period ending on January 15, 1998, is $518. This amount is 
determined by multiplying the adjusted issue price of the debt 
instrument ($92,319) by .00560775 (the sum of r, inf2, and 
the product of r and inf2). Because the accrual period ending 
on January 15, 1998, spans two taxable years, only $259 of this amount 
($518/30 days x 15 days) is allocable to 1997. Therefore, X includes 
$1,175 of OID in income for 1997 ($916 + $259).

    (f) Special rules. The following rules apply to an inflation-indexed 
debt instrument:
    (1) Deflation adjustments--(i) Holder. A deflation adjustment 
reduces the amount of interest otherwise includible in income by a 
holder with respect to the debt instrument for the taxable year. For 
purposes of this paragraph (f)(1)(i), interest includes OID, qualified 
stated interest, and market discount. If the amount of the deflation 
adjustment exceeds the interest otherwise includible in income by the 
holder with respect to the debt instrument for the taxable year, the 
excess is treated as an ordinary loss by the holder for the

[[Page 667]]

taxable year. However, the amount treated as an ordinary loss is limited 
to the amount by which the holder's total interest inclusions on the 
debt instrument in prior taxable years exceed the total amount treated 
by the holder as an ordinary loss on the debt instrument in prior 
taxable years. If the deflation adjustment exceeds the interest 
otherwise includible in income by the holder with respect to the debt 
instrument for the taxable year and the amount treated as an ordinary 
loss for the taxable year, this excess is carried forward to reduce the 
amount of interest otherwise includible in income by the holder with 
respect to the debt instrument for subsequent taxable years.
    (ii) Issuer. A deflation adjustment reduces the interest otherwise 
deductible by the issuer with respect to the debt instrument for the 
taxable year. For purposes of this paragraph (f)(1)(ii), interest 
includes OID and qualified stated interest. If the amount of the 
deflation adjustment exceeds the interest otherwise deductible by the 
issuer with respect to the debt instrument for the taxable year, the 
excess is treated as ordinary income by the issuer for the taxable year. 
However, the amount treated as ordinary income is limited to the amount 
by which the issuer's total interest deductions on the debt instrument 
in prior taxable years exceed the total amount treated by the issuer as 
ordinary income on the debt instrument in prior taxable years. If the 
deflation adjustment exceeds the interest otherwise deductible by the 
issuer with respect to the debt instrument for the taxable year and the 
amount treated as ordinary income for the taxable year, this excess is 
carried forward to reduce the interest otherwise deductible by the 
issuer with respect to the debt instrument for subsequent taxable years. 
If there is any excess remaining upon the retirement of the debt 
instrument, the issuer takes the excess amount into account as ordinary 
income.
    (2) Adjusted basis. A holder's adjusted basis in an inflation-
indexed debt instrument is determined under Sec.  1.1272-1(g). However, 
a holder's adjusted basis in the debt instrument is decreased by the 
amount of any deflation adjustment the holder takes into account to 
reduce the amount of interest otherwise includible in income or treats 
as an ordinary loss with respect to the instrument during the taxable 
year. The decrease occurs when the deflation adjustment is taken into 
account under paragraph (f)(1) of this section.
    (3) Subsequent holders. A holder determines the amount of 
acquisition premium or market discount on an inflation-indexed debt 
instrument by reference to the adjusted issue price of the instrument on 
the date the holder acquires the instrument. A holder determines the 
amount of bond premium on an inflation-indexed debt instrument by 
assuming that the amount payable at maturity on the instrument is equal 
to the instrument's inflation-adjusted principal amount for the day the 
holder acquires the instrument. Any premium or market discount is taken 
into account over the remaining term of the debt instrument as if there 
were no further inflation or deflation. See section 171 for additional 
rules relating to the amortization of bond premium and sections 1276 
through 1278 for additional rules relating to market discount.
    (4) Minimum guarantee. Under both the coupon bond method and the 
discount bond method, a minimum guarantee payment is ignored until the 
payment is made. If there is a minimum guarantee payment, the payment is 
treated as interest on the date it is paid.
    (5) Temporary unavailability of a qualified inflation index. 
Notwithstanding any other rule of this section, an inflation-indexed 
debt instrument may provide for a substitute value of the qualified 
inflation index if and when the publication of the value of the 
qualified inflation index is temporarily delayed. The substitute value 
may be determined by the issuer under any reasonable method. For 
example, if the CPI-U is not reported for a particular month, the debt 
instrument may provide that a substitute value may be determined by 
increasing the last reported value by the average monthly percentage 
increase in the qualified inflation index over the preceding twelve 
months. The use of a substitute value does not result in a reissuance of 
the debt instrument.

[[Page 668]]

    (g) TIPS--(1) Reopenings. For rules concerning a reopening of TIPS, 
see paragraphs (d)(2), (k)(3)(iii), and (k)(3)(v) of Sec.  1.1275-2.
    (2) TIPS issued with more than a de minimis amount of premium--(i) 
Coupon bond method. Notwithstanding paragraph (d)(2)(i) of this section, 
the coupon bond method described in paragraph (d) of this section 
applies to TIPS issued with more than a de minimis amount of premium. 
For this purpose, the de minimis amount is determined using the 
principles of Sec.  1.1273-1(d).
    (ii) Example. The following example illustrates the application of 
the bond premium rules to a TIPS issued with bond premium:

    Example. (i) Facts. X, a calendar year taxpayer, purchases at 
original issuance TIPS with a stated principal amount of $100,000 and a 
stated interest rate of .125 percent, compounded semiannually. For 
purposes of this example, assume that the TIPS are issued in Year 1 on 
January 1, stated interest is payable on June 30 and December 31 of each 
year, and that the TIPS mature on December 31, Year 5. X pays $102,000 
for the TIPS, which is the issue price for the TIPS as determined under 
Sec.  1.1275-2(d)(1). Assume that the inflation-adjusted principal 
amount for the first coupon in Year 1 is $101,225 (resulting in an 
interest payment of $63.27) and for the second coupon in Year 1 is 
$102,500 (resulting in an interest payment of $64.06). X elects to 
amortize bond premium under Sec.  1.171-4. (For simplicity, contrary to 
actual practice, the TIPS in this example were issued on the date with 
respect to which the calculation of the first coupon began.)
    (ii) Bond premium. The stated interest on the TIPS is qualified 
stated interest under Sec.  1.1273-1(c). X acquired the TIPS with bond 
premium of $2,000 (basis of $102,000 minus the TIPS' stated principal 
amount of $100,000). See Sec. Sec.  1.171-1(d), 1.171-3(b), and 
paragraph (f)(3) of this section. The $2,000 is more than the de minimis 
amount of premium for the TIPS of $1,250 (.0025 times the stated 
principal amount of the TIPS ($100,000) times the number of complete 
years to the TIPS' maturity (5 years)). Under paragraph (g)(2)(i) of 
this section, X must use the coupon bond method to determine X's income 
from the TIPS.
    (iii) Allocation of bond premium. Under Sec.  1.171-3(b), the bond 
premium of $2,000 is allocable to each semiannual accrual period by 
assuming that there will be no inflation or deflation over the term of 
the TIPS. Moreover, for purposes of Sec.  1.171-2, the yield of the 
securities is determined by assuming that there will be no inflation or 
deflation over their term. Based on this assumption, for purposes of 
section 171, the TIPS provide for semiannual interest payments of $62.50 
and a $100,000 payment at maturity. As a result, the yield of the 
securities for purposes of section 171 is -0.2720 percent, compounded 
semiannually. Under Sec.  1.171-2, the bond premium allocable to an 
accrual period is the excess of the qualified stated interest allocable 
to the accrual period ($62.50 for each accrual period) over the product 
of the taxpayer's adjusted acquisition price at the beginning of the 
accrual period (determined without regard to any inflation or deflation) 
and the taxpayer's yield. Therefore, the $2,000 of bond premium is 
allocable to each semiannual accrual period in Year 1 as follows: 
$201.22 to the accrual period ending on June 30, Year 1 (the excess of 
the stated interest of $62.50 over ($102,000 x -0.002720/2)); and 
$200.95 to the accrual period ending on December 31, Year 1 (the excess 
of the stated interest of $62.50 over ($101,798.78 x -0. 002720/2)). The 
adjusted acquisition price at the beginning of the accrual period ending 
on December 31, Year 1 is $101,798.78 (the adjusted acquisition price of 
$102,000 at the beginning of the accrual period ending on June 30, Year 
1 reduced by the $201.22 of premium allocable to that accrual period).
    (iv) Income determined by applying the coupon bond method and the 
bond premium rules. Under paragraph (d)(4) of this section, the 
application of the coupon bond method to the TIPS results in a positive 
inflation adjustment in Year 1 of $2,500, which is includible in X's 
income for Year 1. However, because X acquired the TIPS at a premium and 
elected to amortize the premium, the premium allocable to Year 1 will 
offset the income on the TIPS as follows: The premium allocable to the 
first accrual period of $201.22 first offsets the interest payable for 
that period of $63.27. The remaining $137.95 of premium is treated as a 
deflation adjustment that offsets the positive inflation adjustment. See 
Sec.  1.171-3(b). The premium allocable to the second accrual period of 
$200.95 first offsets the interest payable for that period of $64.06. 
The remaining $136.89 of premium is treated as a deflation adjustment 
that further offsets the positive inflation adjustment. As a result, X 
does not include in income any of the stated interest received in Year 1 
and includes in Year 1 income only $2,225.16 of the positive inflation 
adjustment for Year 1 ($2,500 - $137.94 - $136.89).
    (h) Effective/applicability dates--(1) In general. This section 
applies to an inflation-indexed debt instrument issued on or after 
January 6, 1997.
    (2) TIPS issued with more than a de minimis amount of premium. 
Notwithstanding paragraph (h)(1) of this section, paragraph (g)(2) of 
this section applies to TIPS issued with more than

[[Page 669]]

a de minimis amount of premium on or after April 8, 2011.

[T.D. 8709, 62 FR 618, Jan. 6, 1997. Redesignated by T.D. 8838, 64 FR 
48547, Sept. 7, 1999, as amended by T.D. 8840, 64 FR 60343, Nov. 5, 
1999; T.D. 8934, 66 FR 2817, Jan. 12, 2001; T.D. 9609, 78 FR 668, Jan. 
4, 2013]



Sec.  1.1286-1  Tax treatment of certain stripped bonds and stripped coupons.

    (a) De minimis OID. If the original issue discount determined under 
section 1286(a) with respect to the purchase of a stripped bond or 
stripped coupon is less than the amount computed under subparagraphs (A) 
and (B) of section 1273(a)(3) and the regulations thereunder, then the 
amount of original issue discount with respect to that purchase (other 
than any tax-exempt portion thereof, determined under section 
1286(d)(2)) shall be considered to be zero. For purposes of this 
computation, the number of complete years to maturity is measured from 
the date the stripped bond or stripped coupon is purchased.
    (b) Treatment of certain stripped bonds as market discount bonds--
(1) In general. By publication in the Internal Revenue Bulletin (see 
Sec.  601.601(d)(2)(ii)(b) of the Statement of Procedural Rules), the 
Internal Revenue Service may (subject to the limitation of paragraph 
(b)(2) of this section) provide that certain mortgage loans that are 
stripped bonds are to be treated as market discount bonds under section 
1278. Thus, any purchaser of such a bond is to account for any discount 
on the bond as market discount rather than original issue discount.
    (2) Limitation. This treatment may be provided for a stripped bond 
only if, immediately after the most recent disposition referred to in 
section 1286(b)--
    (i) The amount of original issue discount with respect to the 
stripped bond is determined under paragraph (a) of this section 
(concerning de minimis OID); or
    (ii) The annual stated rate of interest payable on the stripped bond 
is no more than 100 basis points lower than the annual stated rate of 
interest payable on the original bond from which it and any other 
stripped bond or bonds and any stripped coupon or coupons were stripped.
    (c) Effective date. This section is effective on and after August 8, 
1991.

[T.D. 8463, 57 FR 61812, Dec. 29, 1992]



Sec.  1.1286-2  Stripped inflation-protected debt instruments.

    Stripped inflation-protected debt instruments. If a Treasury 
Inflation-Protected Security is stripped under the Department of the 
Treasury's Separate Trading of Registered Interest and Principal of 
Securities (STRIPS) program, the holders of the principal and coupon 
components must use the discount bond method (as described in Sec.  
1.1275-7(e)) to account for the original issue discount on the 
components.

[T.D. 8709, 62 FR 621, Jan. 6, 1997. Redesignated by T.D. 8838, 64 FR 
48547, Sept. 7, 1999; T.D. 9609, 78 FR 668, Jan. 4, 2013]



Sec.  1.1287-1  Denial of capital gains treatment for gains 
on registration-required obligations not in registered form.

    (a) In general. Except as provided in paragraph (c) of this section, 
any gain on the sale or other disposition of a registration-required 
obligation held after December 31, 1982, that is not in registered form 
shall be treated as ordinary income unless the issuance of the 
obligation was subject to tax under section 4701. The term registration-
required obligation has the meaning given to that term in section 
163(f)(2), except that clause (iv) of subparagraph (A) thereof shall not 
apply. Therefore, although an obligation that is not in registered form 
is described in Sec.  1.163-5(c)(1), the holder of such an obligation 
shall be required to treat the gain on the sale or other disposition of 
such obligation as ordinary income. The term holder means the person 
that would be denied a loss deduction under section 165(j)(1) or denied 
capital gain treatment under section 1287(a).
    (b) Registered form--(1) Obligations issued after September 21, 
1984. With respect to any obligation originally issued after September 
21, 1984, the term registered form has the meaning given that term in 
section 103(j)(3) and the regulations thereunder. Therefore, an 
obligation that would otherwise be in registered form is not considered 
to

[[Page 670]]

be in registered form if it can be transferred at that time or at any 
time until its maturity by any means not described in Sec.  5f.103-1(c). 
An obligation that, as of a particular time, is not considered to be in 
registered form because it can be transferred by any means not described 
in Sec.  5f.103-1(c) is considered to be in registered form at all times 
during the period beginning with a later time and ending with the 
maturity of the obligation in which the obligation can be transferred 
only by a means described in Sec.  5f.103-1(c).
    (2) Obligations issued after December 31, 1982, and on or before 
September 21, 1984. With respect to any obligation originally issued 
after December 31, 1982, and on or before September 21, 1984, or an 
obligation originally issued after September 21, 1984, pursuant to the 
exercise of a warrant or the conversion of a convertible obligation, 
which warrant or obligation (including conversion privilege) was issued 
after December 31, 1982, and on or before September 21, 1984, that 
obligation will be considered to be in registered form if it satisfied 
Sec.  5f.163-1 or the proposed regulations provided in Sec.  1.163.-5(c) 
and published in the Federal Register on September 2, 1983 (48 FR 
39953).
    (c) Registration-required obligations not in registered form which 
are not subject to section 1287(c). Notwithstanding the fact than an 
obligation is a registration-required obligation that is not in 
registered form, the holder will not be subject to section 1287(a) if 
the holder meets the conditions of Sec.  1.165-12(c).
    (d) Effective date. These regulations apply generally to obligations 
issued after January 20, 1987. However, a taxpayer may choose to apply 
the rules of Sec.  1.1287-1 with respect to an obligation issued after 
December 31, 1982, and on or before January 20, 1987, which obligation 
is held after January 20, 1987.

[T.D. 8110, 51 FR 45461, Dec. 19, 1986]



Sec.  1.1288-1  Adjustment of applicable Federal rate 
for tax-exempt obligations.

    (a) In general. In applying section 483 or section 1274 to a tax-
exempt obligation, the applicable Federal rate is adjusted to take into 
account the tax exemption for interest on the obligation. For each 
applicable Federal rate determined under section 1274(d), the Secretary 
computes a corresponding adjusted applicable Federal rate by multiplying 
the applicable Federal rate by the adjustment factor described in 
paragraph (b) of this section. The Internal Revenue Service publishes 
the applicable Federal rates and the adjusted applicable Federal rates 
for each month in the Internal Revenue Bulletin (see Sec.  
601.601(d)(2)(ii) of this chapter).
    (b) Adjustment factor. The adjustment factor is a percentage equal 
to--
    (1) The excess of 100 percent, over
    (2) The product of--
    (i) 59 percent, and
    (ii) The sum of the maximum rate in effect under section 1 
applicable to individuals and the maximum rate in effect under section 
1411 applicable to individuals for the month to which the adjusted 
applicable Federal rate applies.
    (c) Effective/applicability date. The rules of this section apply to 
the determination of adjusted applicable Federal rates beginning with 
the rates determined during August 2016 that apply during September 
2016.

[T.D. 9763, 81 FR 24484, Apr. 26, 2016]



Sec.  1.1291-0  Treatment of shareholders of certain passive 
foreign investment companies; table of contents.

    This section contains a listing of the headings for Sec. Sec.  
1.1291-1, 1.1291-9, and 1.1291-10.

Sec.  1.1291-1 Taxation of U.S. persons that are shareholders of section 
                               1291 funds.

    (a) through (b)(2)(i) [Reserved]
    (ii) Pedigreed QEF.
    (b)(2)(iii) and (iv) [Reserved]
    (v) Section 1291 fund.
    (3) through (6) [Reserved]
    (7) Shareholder.
    (8) Indirect shareholder.
    (i) In general.
    (ii) Ownership through a corporation.
    (A) Ownership through a non-PFIC foreign corporation.
    (B) Ownership through a PFIC.
    (C) Ownership through a domestic corporation.
    (iii) Ownership through pass-through entities.
    (A) Partnerships.
    (B) S Corporations.
    (C) Estates and nongrantor trusts.
    (D) Grantor trusts.

[[Page 671]]

    (iv) Successive application.
    (v) Examples.
    (A) Example 1.
    (1) Facts.
    (2) Results.
    (i) Treatment of DC.
    (ii) Treatment of A.
    (B) Example 2.
    (1) Facts.
    (2) Results.
    (C) Example 3.
    (1) Facts.
    (2) Results.
    (D) Example 4.
    (1) Facts.
    (2) Results.
    (c) Coordination with other PFIC rules.
    (1) and (2) [Reserved]
    (3) Coordination with section 1296: Distributions and dispositions.
    (4) Coordination with mark to market rules under chapter 1 of the 
Internal Revenue Code other than section 1296.
    (i) In general.
    (ii) Coordination rule.
    (d) [Reserved]
    (e) Exempt organization as shareholder.
    (1) In general.
    (2) Ownership through certain tax-exempt organizations and accounts.
    (f) through (i) [Reserved]
    (j) Applicability dates.

                Sec.  1.1291-9 Deemed dividend election.

    (a) Deemed dividend election.
    (1) In general.
    (2) Post-1986 earnings and profits defined.
    (i) In general.
    (ii) Pro rata share of post-1986 earnings and profits attributable 
to shareholder's stock.
    (A) In general.
    (B) Reduction for previously taxed amounts.
    (b) Who may make the election.
    (c) Time for making the election.
    (d) Manner of making the election.
    (1) In general.
    (2) Attachment to Form 8621.
    (e) Qualification date.
    (1) In general.
    (2) Elections made after March 31, 1995, and before January 27, 
1997.
    (i) In general.
    (ii) Exception.
    (3) Examples.
    (f) Adjustment to basis.
    (g) Treatment of holding period.
    (h) Coordination with section 959(e).
    (i) Election inapplicable to shareholder of former PFIC.
    (1) [Reserved]
    (2) Former PFIC.
    (j) Definitions.
    (1) Passive foreign investment company (PFIC).
    (2) Types of PFICs.
    (i) Qualified electing fund (QEF).
    (ii) Pedigreed QEF.
    (iii) Unpedigreed QEF.
    (iv) Former PFIC.
    (3) Shareholder.
    (k) Effective/applicability dates.

                  Sec.  1.1291-10 Deemed sale election.

    (a) Deemed sale election.
    (b) Who may make the election.
    (c) Time for making the election.
    (d) Manner of making the election.
    (e) Qualification date.
    (1) In general.
    (2) Elections made after March 31, 1995, and before January 27, 
1997.
    (i) In general.
    (ii) Exception.
    (f) Adjustments to basis.
    (1) In general.
    (2) Adjustment to basis for section 1293 inclusion with respect to 
deemed sale election made after March 31, 1995, and before January 27, 
1997.
    (g) Treatment of holding period.
    (h) Election inapplicable to shareholder of former PFIC.
    (i) Effective date.

[T.D. 8701, 61 FR 68151, Dec. 27, 1996, as amended by T.D. 8750, 63 FR 
13, Jan. 2, 1998; T.D. 9123, 69 FR 24073, May 3, 2004; T.D. 9806, 81 FR 
95465, Dec. 28, 2016; T.D. 9936, 86 FR 4555, Jan. 15, 2021]



Sec.  1.1291-1  Taxation of U.S. persons that are shareholders 
of section 1291 funds.

    (a) through (b)(2)(i) [Reserved]
    (ii) Pedigreed QEF. A PFIC is a pedigreed QEF with respect to a 
shareholder if the PFIC has been a QEF with respect to the shareholder 
for all taxable years during which the corporation was a PFIC that are 
included wholly or partly in the shareholder's holding period of the 
PFIC stock.
    (b)(2)(iii) and (iv) [Reserved]
    (v) Section 1291 fund. A PFIC is a section 1291 fund with respect to 
a shareholder unless the PFIC is a pedigreed QEF with respect to the 
shareholder or a section 1296 election is in effect with respect to the 
shareholder.
    (3) through (6) [Reserved]
    (7) Shareholder. A shareholder is a United States person that 
directly owns stock of a PFIC (a direct shareholder), or that is an 
indirect shareholder (as defined in section 1298(a) and paragraph (b)(8) 
of this section), except as provided in paragraph (e) of this section. 
For purposes of sections 1291 and

[[Page 672]]

1298, a domestic partnership or S corporation (as defined in section 
1361(a)(1)) is not treated as a shareholder of a PFIC except for 
purposes of any information reporting requirements, including the 
requirement to file an annual report under section 1298(f). In addition, 
to the extent that a person is treated under sections 671 through 678 as 
the owner of a portion of a domestic trust, the trust is not treated as 
a shareholder of a PFIC with respect to PFIC stock held by that portion 
of the trust, except for purposes of the information reporting 
requirements of Sec.  1.1298-1(b)(3)(i) (imposing an information 
reporting requirement on domestic liquidating trusts and fixed 
investment trusts).
    (8) Indirect shareholder--(i) In general. An indirect shareholder of 
a PFIC is a United States person that indirectly owns stock of a PFIC. A 
person indirectly owns stock when it is treated as owning stock of a 
corporation owned by another person, including another United States 
person, under this paragraph (b)(8). In applying this paragraph (b)(8), 
the determination of a person's indirect ownership is made on the basis 
of all the facts and circumstances in each case; the substance rather 
than the form of ownership is controlling, taking into account the 
purposes of sections 1291 through 1298.
    (ii) Ownership through a corporation--(A) Ownership through a non-
PFIC foreign corporation. A person that directly or indirectly owns 50 
percent or more in value of the stock of a foreign corporation that is 
not a PFIC is considered to own a proportionate amount (by value) of any 
stock owned directly or indirectly by the foreign corporation.
    (B) Ownership through a PFIC. A person that directly or indirectly 
owns stock of a PFIC is considered to own a proportionate amount (by 
value) of any stock owned directly or indirectly by the PFIC. Section 
1297(d) does not apply in determining whether a corporation is a PFIC 
for purposes of this paragraph (b)(8)(ii)(B).
    (C) Ownership through a domestic corporation--(1) In general. Solely 
for purposes of determining whether a person satisfies the ownership 
threshold described in paragraph (b)(8)(ii)(A) of this section, a person 
that directly or indirectly owns 50 percent or more in value of the 
stock of a domestic corporation is considered to own a proportionate 
amount (by value) of any stock owned directly or indirectly by the 
domestic corporation.
    (2) Non-duplication. Paragraph (b)(8)(ii)(C)(1) of this section does 
not apply to treat a United States person as owning (other than for 
purposes of applying the ownership threshold in paragraph (b)(8)(ii)(A) 
of this section) stock of a PFIC that is directly owned or considered 
owned indirectly within the meaning of this paragraph (b)(8) by another 
United States person (determined without regard to paragraph 
(b)(8)(ii)(C)(1)). See Example 1 of paragraph (b)(8)(iv) of this 
section.
    (3) S corporations. The 50 percent limitation in paragraph 
(b)(8)(ii)(C)(1) of this section does not apply with respect to stock 
owned directly or indirectly by an S corporation. See paragraph 
(b)(8)(iii)(B) of this section for rules regarding stock owned directly 
or indirectly by an S corporation.
    (iii) Ownership through pass-through entities--(A) Partnerships. If 
a foreign or domestic partnership directly or indirectly owns stock, the 
partners of the partnership are considered to own such stock 
proportionately in accordance with their ownership interests in the 
partnership.
    (B) S Corporations. If an S corporation directly or indirectly owns 
stock, each S corporation shareholder is considered to own such stock 
proportionately in accordance with the shareholder's ownership interest 
in the S corporation.
    (C) Estates and nongrantor trusts. If a foreign or domestic estate 
or nongrantor trust (other than an employees' trust described in section 
401(a) that is exempt from tax under section 501(a)) directly or 
indirectly owns stock, each beneficiary of the estate or trust is 
considered to own a proportionate amount of such stock. For purposes of 
this paragraph (b)(8)(iii)(C), a nongrantor trust is any trust or 
portion of a trust that is not treated as owned by one or more persons 
under sections 671 through 679.
    (D) Grantor trusts. If a foreign or domestic trust directly or 
indirectly owns stock, a person that is treated

[[Page 673]]

under sections 671 through 679 as the owner of any portion of the trust 
that holds an interest in the stock is considered to own the interest in 
the stock held by that portion of the trust.
    (iv) Successive application. Stock considered to be owned by a 
person by reason of paragraphs (b)(8)(ii) or (iii) of this section is, 
for purposes of applying such paragraphs, considered to be actually 
owned by such person. Subject to the limitations provided in section 
1298(a) and paragraphs (b)(8)(ii) and (b)(8)(iii) of this section, this 
paragraph applies by successively considering a person as actually 
owning its proportionate share of stock or other equity interest 
directly held by an entity directly owned by the person. Paragraph 
(b)(8)(ii)(C)(2) of this section applies after the other subparagraphs 
of paragraph (b)(8) of this section.
    (v) Examples. The rules of this paragraph (b)(8) are illustrated by 
the following examples:

    (A) Example 1--(1) Facts. A is a United States person who owns 49% 
of the stock of FC1, a foreign corporation that is not a PFIC, and 
separately all of the stock of DC, a domestic corporation that is not an 
S corporation. DC, in turn, owns the remaining 51% of the stock of FC1, 
and FC1 owns 100 shares of stock in a PFIC that is not a controlled 
foreign corporation (CFC) within the meaning of section 957(a). The 
remainder of the PFIC's shares are owned by unrelated foreign persons.
    (2) Results--(i) Treatment of DC. Under paragraph (b)(8)(ii)(A) of 
this section, DC is considered to actually own 51 shares of the PFIC 
stock directly held by FC1 because DC directly owns 50% or more of the 
stock of FC1.
    (ii) Treatment of A. In determining whether A is considered to own 
50% or more of the value of FC1 for purposes of applying paragraphs 
(b)(8)(ii)(A) and (b)(8)(iv) of this section to the PFIC stock held 
through FC1, A is considered under paragraphs (b)(8)(ii)(C)(1) and 
(b)(8)(iv) of this section as indirectly owning all the stock of FC1 
that DC directly owns, before the application of paragraph 
(b)(8)(ii)(C)(2) of this section. Because A also directly owns 49% of 
the stock of FC1, before the application of paragraph (b)(8)(ii)(C)(2) 
of this section A would be treated as owning all 100 shares of PFIC 
stock held by FC1. However, because 51 shares of the PFIC stock held by 
FC1 are indirectly owned by DC under paragraph (b)(8)(ii)(A) of this 
section, pursuant to the limitation imposed by paragraph 
(b)(8)(ii)(C)(2) of this section, only the remaining 49 shares of the 
PFIC stock are considered as indirectly owned by A under paragraph 
(b)(8) of this section.
    (B) Example 2--(1) Facts. B, a United States citizen, owns 50% of 
the interests in Foreign Partnership, a foreign partnership treated as a 
partnership for U.S. federal income tax purposes, the remaining 
interests in which are owned by an unrelated foreign person. Foreign 
Partnership owns 100% of the stock of FC1 and 50% of the stock of FC2, 
the remainder of which is owned by an unrelated foreign person. Both FC1 
and FC2 are foreign corporations that are not PFICs. FC1 and FC2 each 
own 50% of the stock of FC3, a foreign corporation that is a PFIC.
    (2) Results. Under paragraphs (b)(8)(iii)(A) and (b)(8)(iv) of this 
section, for purposes of determining whether B is a shareholder of FC3, 
B is considered to actually own 50% (50% x 100%) of the stock of FC1 and 
25% (50% x 50%) of the stock of FC2. Under paragraphs (b)(8)(ii)(A) and 
(b)(8)(iv) of this section, B is then considered to own 25% (50% x 100% 
x 50%) of the stock of FC3 indirectly through FC1, and thus is a 
shareholder of FC3 for purposes of the PFIC provisions. Because B is 
considered to own less than 50% of FC2, B is not considered to own any 
stock of FC3 indirectly through FC2.
    (C) Example 3--(1) Facts. The facts are the same as in paragraph 
(b)(8)(v)(B)(1) of this section (the facts in Example 2), except that B 
owns 40% of the interests in Foreign Partnership.
    (2) Results. Under paragraph (b)(8)(iii)(A) and (b)(8)(iv) of this 
section, for purposes of determining whether B is a shareholder of FC3, 
B is considered to actually own 40% (40% x 100%) of the stock of FC1 and 
20% (40% x 50%) of the stock of FC2, and thus is not considered to own 
50% or more of the stock of FC1 or FC2. Under paragraphs (b)(8)(ii)(A) 
and (b)(8)(iv) of this section, B is not considered to own any

[[Page 674]]

stock of FC3 indirectly through FC1 or FC2.
    (D) Example 4--(1) Facts. The facts are the same as in paragraph 
(b)(8)(v)(C)(1) of this section (the facts in Example 3), except that FP 
owns only 80% of FC1 and B also directly owns 20% of FC1.
    (2) Results. Under paragraph (b)(8)(iii)(A) and (b)(8)(iv) of this 
section, for purposes of determining whether B is a shareholder of FC3, 
B is considered to own 32% (40% x 80%) of the stock of FC1 and 20% (40% 
x 50%) of the stock of FC2. Because B directly owns 20% of FC1, B is 
considered to actually own 52% (32% + 20%) of the stock of FC1 in total. 
Under paragraphs (b)(8)(ii)(A) and (b)(8)(iv) of this section, B is 
considered to own 26% (52% x 50%) of the stock of FC3 indirectly through 
FC1, and thus is a shareholder of FC3 for purposes of the PFIC 
provisions. B is not considered to own any stock of FC3 indirectly 
through FC2.
    (c) Coordination with other PFIC rules.
    (1)-(2) [Reserved]
    (3) Coordination with section 1296: distributions and dispositions. 
If PFIC stock is marked to market under section 1296 for any taxable 
year, then, except as provided in Sec.  1.1296-1(i), section 1291 and 
the regulations thereunder shall not apply to any distribution with 
respect to section 1296 stock (as defined in Sec.  1.1296-1(a)(2)), or 
to any disposition of such stock, for such taxable year.
    (4) Coordination with mark to market rules under chapter 1 of the 
Internal Revenue Code other than section 1296--(i) In general. If PFIC 
stock is marked to market for any taxable year under section 475 or any 
other provision of chapter 1 of the Internal Revenue Code, other than 
section 1296, regardless of whether the application of such provision is 
mandatory or results from an election by the taxpayer or another person, 
then, except as provided in paragraph (c)(4)(ii) of this section, 
section 1291 and the regulations thereunder shall not apply to any 
distribution with respect to such PFIC stock or to any disposition of 
such PFIC stock for such taxable year. See Sec. Sec.  1.1295-1(i)(3) and 
1.1296-1(h)(3)(i) for rules regarding the automatic termination of an 
existing election under section 1295 or section 1296 when a taxpayer 
marks to market PFIC stock under section 475 or any other provision of 
chapter 1 of the Internal Revenue Code.
    (ii) Coordination rule--(A) Notwithstanding any provision in this 
section to the contrary, the rule of paragraph (c)(4)(ii)(B) of this 
section shall apply to the first taxable year in which a United States 
person marks to market its PFIC stock under a provision of chapter 1 of 
the Internal Revenue Code, other than section 1296, if such foreign 
corporation was a PFIC for any taxable year, prior to such first taxable 
year, during the United States person's holding period (as defined in 
section 1291(a)(3)(A) and Sec.  1.1296-1(f)) in such stock, and for 
which such corporation was not treated as a QEF with respect to such 
United States person.
    (B) For the first taxable year of a United States person that marks 
to market its PFIC stock under any provision of chapter 1 of the 
Internal Revenue Code, other than section 1296, such United States 
person shall, in lieu of the rules under which the United States person 
marks to market, apply the rules of Sec.  1.1296-1(i)(2) and (3) as if 
the United States person had made an election under section 1296 for 
such first taxable year.
    (d) [Reserved]
    (e) Exempt organization as shareholder--(1) In general. If the 
shareholder of a PFIC is an organization exempt from tax under this 
chapter, section 1291 and these regulations apply to such shareholder 
only if a dividend from the PFIC would be taxable to the organization 
under subchapter F.
    (2) Ownership through certain tax-exempt organizations and accounts. 
To the extent a United States person owns stock of a PFIC through an 
organization or account described in Sec.  1.1298-1(c)(1), that person 
is not treated as a shareholder with respect to the PFIC stock.
    (f)-(i) [Reserved]
    (j) Applicability dates. (1) Paragraphs (c)(3) and (4) of this 
section apply for taxable years beginning on or after May 3, 2004.
    (2) Paragraph (e)(1) of this section is applicable on and after 
April 1, 1992.
    (3) Except as otherwise provided in paragraph (j)(4) of this 
section, paragraphs (b)(2)(ii) and (v), (b)(7) and (8),

[[Page 675]]

and (e)(2) of this section apply to taxable years of shareholders ending 
on or after December 31, 2013.
    (4) Paragraphs (b)(8)(iv) and (b)(8)(v)(A), (B), (C), and (D) of 
this section apply for taxable years of shareholders beginning on or 
after January 14, 2021. A shareholder may choose to apply such 
paragraphs for any open taxable year beginning before January 14, 2021, 
provided that, with respect to a tested foreign corporation, the 
shareholder consistently applies such paragraphs and the provisions of 
Sec. Sec.  1.1297-1 (except that consistent treatment is not required 
with respect to Sec.  1.1297-1(c)(1)(i)(A)), 1.1297-2, 1.1297-4, 1.1297-
6, 1.1298-2, and 1.1298-4 for such year and all subsequent years.

[T.D. 8750, 63 FR 13, Jan. 2, 1998. Redesignated by T.D. 8870, 65 FR 
5779, Feb. 7, 2000, as amended by T.D. 9123, 69 FR 24073, May 3, 2004; 
T.D. 9806, 81 FR 95465, Dec. 28, 2016; T.D. 9936, 86 FR 4555, Jan. 15, 
2021]



Sec.  1.1291-9  Deemed dividend election.

    (a) Deemed dividend election--(1) In general. This section provides 
rules for making the election under section 1291(d)(2)(B) (deemed 
dividend election). Under that section, a shareholder (as defined in 
paragraph (j)(3) of this section) of a PFIC that is an unpedigreed QEF 
may elect to include in income as a dividend the shareholder's pro rata 
share of the post-1986 earnings and profits of the PFIC attributable to 
the stock held on the qualification date (as defined in paragraph (e) of 
this section), provided the PFIC is a controlled foreign corporation 
(CFC) within the meaning of section 957(a) for the taxable year for 
which the shareholder elects under section 1295 to treat the PFIC as a 
QEF (section 1295 election). If the shareholder makes the deemed 
dividend election, the PFIC will become a pedigreed QEF with respect to 
the shareholder. The deemed dividend is taxed under section 1291 as an 
excess distribution received on the qualification date. The excess 
distribution determined under this paragraph (a) is allocated under 
section 1291(a)(1)(A) only to those days in the shareholder's holding 
period during which the foreign corporation qualified as a PFIC. For 
purposes of the preceding sentence, the holding period of the PFIC stock 
with respect to which the election is made ends on the day before the 
qualification date. For the definitions of PFIC, QEF, unpedigreed QEF, 
and pedigreed QEF, see paragraph (j) (1) and (2) of this section.
    (2) Post-1986 earnings and profits defined--(i) In general. For 
purposes of this section, the term post-1986 earnings and profits means 
the undistributed earnings and profits, within the meaning of section 
902(c)(1), as of the day before the qualification date, that were 
accumulated and not distributed in taxable years of the PFIC beginning 
after 1986 and during which it was a PFIC, but without regard to whether 
the earnings relate to a period during which the PFIC was a CFC.
    (ii) Pro rata share of post-1986 earnings and profits attributable 
to shareholder's stock--(A) In general. A shareholder's pro rata share 
of the post-1986 earnings and profits of the PFIC attributable to the 
stock held by the shareholder on the qualification date is the amount of 
post-1986 earnings and profits of the PFIC accumulated during any 
portion of the shareholder's holding period ending at the close of the 
day before the qualification date and attributable, under the principles 
of section 1248 and the regulations under that section, to the PFIC 
stock held on the qualification date.
    (B) Reduction for previously taxed amounts. A shareholder's pro rata 
share of the post-1986 earnings and profits of the PFIC does not include 
any amount that the shareholder demonstrates to the satisfaction of the 
Commissioner (in the manner provided in paragraph (d)(2) of this 
section) was, pursuant to another provision of the law, previously 
included in the income of the shareholder, or of another U.S. person if 
the shareholder's holding period of the PFIC stock includes the period 
during which the stock was held by that other U.S. person.
    (b) Who may make the election. A shareholder of an unpedigreed QEF 
that is a CFC for the taxable year of the PFIC for which the shareholder 
makes the section 1295 election may make the deemed dividend election 
provided the shareholder held stock of that PFIC on the qualification 
date. A shareholder is treated as holding stock

[[Page 676]]

of the PFIC on the qualification date if its holding period with respect 
to that stock under section 1223 includes the qualification date. A 
shareholder may make the deemed dividend election without regard to 
whether the shareholder is a United States shareholder within the 
meaning of section 951(b). A deemed dividend election may be made by a 
shareholder whose pro rata share of the post-1986 earnings and profits 
of the PFIC attributable to the PFIC stock held on the qualification 
date is zero.
    (c) Time for making the election. The shareholder makes the deemed 
dividend election in the shareholder's return for the taxable year that 
includes the qualification date. If the shareholder and the PFIC have 
the same taxable year, the shareholder makes the deemed dividend 
election in either the original return for the taxable year for which 
the shareholder makes the section 1295 election, or in an amended return 
for that year. If the shareholder and the PFIC have different taxable 
years, the deemed dividend election must be made in an amended return 
for the taxable year that includes the qualification date. If the deemed 
dividend election is made in an amended return, the amended return must 
be filed by a date that is within three years of the due date, as 
extended under section 6081, of the original return for the taxable year 
that includes the qualification date.
    (d) Manner of making the election--(1) In general. A shareholder 
makes the deemed dividend election by filing Form 8621 and the 
attachment to Form 8621 described in paragraph (d)(2) of this section 
with the return for the taxable year of the shareholder that includes 
the qualification date, reporting the deemed dividend as an excess 
distribution pursuant to section 1291(a)(1), and paying the tax and 
interest due on the excess distribution. A shareholder that makes the 
deemed dividend election after the due date of the return (determined 
without regard to extensions) for the taxable year that includes the 
qualification date must pay additional interest, pursuant to section 
6601, on the amount of the underpayment of tax for that year.
    (2) Attachment to Form 8621. The shareholder must attach a schedule 
to Form 8621 that demonstrates the calculation of the shareholder's pro 
rata share of the post-1986 earnings and profits of the PFIC that is 
treated as distributed to the shareholder on the qualification date 
pursuant to this section. If the shareholder is claiming an exclusion 
from its pro rata share of the post-1986 earnings and profits for an 
amount previously included in its income or the income of another U.S. 
person, the shareholder must include the following information:
    (i) The name, address, and taxpayer identification number of each 
U.S. person that previously included an amount in income, the amount 
previously included in income by each such U.S. person, the provision of 
the law pursuant to which the amount was previously included in income, 
and the taxable year or years of inclusion of each amount; and
    (ii) A description of the transaction pursuant to which the 
shareholder acquired, directly or indirectly, the stock of the PFIC from 
another U.S. person, and the provisions of law pursuant to which the 
shareholder's holding period includes the period the other U.S. person 
held the CFC stock.
    (e) Qualification date--(1) In general. Except as otherwise provided 
in this paragraph (e), the qualification date is the first day of the 
PFIC's first taxable year as a QEF (first QEF year).
    (2) Elections made after March 31, 1995, and before January 27, 
1997--(i) In general. The qualification date for deemed dividend 
elections made after March 31, 1995, and before January 27, 1997, is the 
first day of the shareholder's election year. The shareholder's election 
year is the taxable year of the shareholder for which it made the 
section 1295 election.
    (ii) Exception. A shareholder who made the deemed dividend election 
after May 1, 1992, and before January 27, 1997, may elect to change its 
qualification date to the first day of the first QEF year, provided the 
periods of limitations on assessment for the taxable year that includes 
that date and for the shareholder's election year have not expired. A 
shareholder changes the qualification date by filing amended returns, 
with revised Forms 8621 and

[[Page 677]]

the attachments described in paragraph (d)(2) of this section, for the 
shareholder's election year and the shareholder's taxable year that 
includes the first day of the first QEF year, and making all appropriate 
adjustments and payments.
    (3) Examples. The rules of this paragraph (e) are illustrated by the 
following examples:

    Example 1. (i) Eligibility to make deemed dividend election. A is a 
U.S. person who files its income tax return on a calendar year basis. On 
January 2, 1994, A purchased one percent of the stock of M, a PFIC with 
a taxable year ending November 30. M was both a CFC and a PFIC, but not 
a QEF, for all of its taxable years. On December 3, 1996, M made a 
distribution to its shareholders. A received $100, all of which A 
reported in its 1996 return as an excess distribution as provided in 
section 1291(a)(1). A decides to make the section 1295 election in A's 
1997 taxable year to treat M as a QEF effective for M's taxable year 
beginning December 1, 1996. Because A did not make the section 1295 
election in 1994, the first year in its holding period of M stock that M 
qualified as a PFIC, M would be an unpedigreed QEF and A would be 
subject to both sections 1291 and 1293. A, however, may elect under 
section 1291(d)(2) to purge the years M was not a QEF from A's holding 
period. If A makes the section 1291(d)(2) election, the December 3 
distribution will not be taxable under section 1291(a). Because M is a 
CFC, even though A is not a U.S. shareholder within the meaning of 
section 951(b), A may make the deemed dividend election under section 
1291(d)(2)(B).
    (ii) Making the election. Under paragraph (e)(1) of this section, 
the qualification date, and therefore the date of the deemed dividend, 
is December 1, 1996. Accordingly, to make the deemed dividend election, 
A must file an amended return for 1996, and include the deemed dividend 
in income in that year. As a result, M will be a pedigreed QEF as of 
December 1, 1996, and the December 3, 1996, distribution will not be 
taxable as an excess distribution. Therefore, in its amended return, A 
may report the December 3, 1996, distribution consistent with section 
1293 and the general rules applicable to corporate distributions.
    Example 2. X, a U.S. person, owned a five percent interest in the 
stock of FC, a PFIC with a taxable year ending June 30. X never made the 
section 1295 election with respect to FC. X transferred her interest in 
FC to her granddaughter, Y, a U.S. person, on February 14, 1996. The 
transfer qualified as a gift for Federal income tax purposes, and no 
gain was recognized on the transfer (see Regulation Project INTL-656-87, 
published in 1992-1 C.B. 1124; see Sec.  601.601(d)(2)(ii)(b) of this 
chapter). As provided in section 1223(2), Y's holding period includes 
the period that X held the FC stock. Y decides to make the section 1295 
election in her 1996 return to treat FC as a QEF for its taxable year 
beginning July 1, 1995. However, because Y's holding period includes the 
period that X held the FC stock, and FC was a PFIC but not a QEF during 
that period, FC will be an unpedigreed QEF with respect to Y unless Y 
makes a section 1291(d)(2) election. Although Y did not actually own the 
stock of FC on the qualification date (July 1, 1995), Y's holding period 
includes that date. Therefore, provided FC is a CFC for its taxable year 
beginning July 1, 1995, Y may make a section 1291(d)(2)(B) election to 
treat FC as a pedigreed QEF.

    (f) Adjustment to basis. A shareholder that makes the deemed 
dividend election increases its adjusted basis of the stock of the PFIC 
owned directly by the shareholder by the amount of the deemed dividend. 
If the shareholder makes the deemed dividend election with respect to a 
PFIC of which it is an indirect shareholder, the shareholder's adjusted 
basis of the stock or other property owned directly by the shareholder, 
through which ownership of the PFIC is attributed to the shareholder, is 
increased by the amount of the deemed dividend. In addition, solely for 
purposes of determining the subsequent treatment under the Code and 
regulations of a shareholder of the stock of the PFIC, the adjusted 
basis of the direct owner of the stock of the PFIC is increased by the 
amount of the deemed dividend.
    (g) Treatment of holding period. For purposes of applying sections 
1291 through 1297 to the shareholder after the deemed dividend, the 
shareholder's holding period of the stock of the PFIC begins on the 
qualification date. For other purposes of the Code and regulations, this 
holding period rule does not apply.
    (h) Coordination with section 959(e). For purposes of section 
959(e), the entire deemed dividend is treated as included in gross 
income under section 1248(a).
    (i) Election inapplicable to shareholder of a former PFIC or of a 
section 1297(e) PFIC. A shareholder may not make the section 1295 and 
deemed dividend elections if the foreign corporation is a former PFIC 
(as defined in paragraph (j)(2)(iv) of this section) or a section 
1297(e) PFIC (as defined in paragraph

[[Page 678]]

(j)(2)(v) of this section) with respect to the shareholder. For the 
rules regarding the election by a shareholder of a former PFIC, see 
Sec.  1.1298-3. For the rules regarding the election by a shareholder of 
a section 1297(e) PFIC, see Sec.  1.1297-3.
    (j) Definitions--(1) Passive foreign investment company (PFIC). A 
passive foreign investment company (PFIC) is a foreign corporation that 
satisfies either the income test of section 1296(a)(1) or the asset test 
of section 1296(a)(2). A corporation will not be treated as a PFIC with 
respect to a shareholder for those days included in the shareholder's 
holding period when the shareholder, or a person whose holding period of 
the stock is included in the shareholder's holding period, was not a 
United States person within the meaning of section 7701(a)(30).
    (2) Types of PFICs--(i) Qualified electing fund (QEF). A PFIC is a 
qualified electing fund (QEF) with respect to a shareholder that has 
elected, under section 1295, to be taxed currently on its share of the 
PFIC's earnings and profits pursuant to section 1293.
    (ii) Pedigreed QEF. A PFIC is a pedigreed QEF with respect to a 
shareholder if the PFIC has been a QEF with respect to the shareholder 
for all taxable years during which the corporation was a PFIC that are 
included wholly or partly in the shareholder's holding period of the 
PFIC stock.
    (iii) Unpedigreed QEF. A PFIC is an unpedigreed QEF for a taxable 
year if--
    (A) An election under section 1295 is in effect for that year;
    (B) The PFIC has been a QEF with respect to the shareholder for at 
least one, but not all, of the taxable years during which the 
corporation was a PFIC that are included wholly or partly in the 
shareholder's holding period of the PFIC stock; and
    (C) The shareholder has not made an election under section 
1291(d)(2) and this section or Sec.  1.1291-10 with respect to the PFIC 
to purge the nonQEF years from the shareholder's holding period.
    (iv) Former PFIC. A foreign corporation is a former PFIC with 
respect to a shareholder if the corporation satisfies neither the income 
test of section 1297(a)(1) nor the asset test of section 1297(a)(2), but 
its stock, held by that shareholder, is treated as stock of a PFIC, 
pursuant to section 1298(b)(1), because the corporation was a PFIC that 
was not a QEF at some time during the shareholder's holding period of 
the stock.
    (v) Section 1297(e) PFIC. A foreign corporation is a section 1297(e) 
PFIC with respect to a shareholder (as defined in paragraph (j)(3) of 
this section) if--
    (A) The foreign corporation qualifies as a PFIC under section 
1297(a) on the first day on which the qualified portion of the 
shareholder's holding period in the foreign corporation begins, as 
determined under section 1297(e)(2); and
    (B) The stock of the foreign corporation held by the shareholder is 
treated as stock of a PFIC, pursuant to section 1298(b)(1), because, at 
any time during the shareholder's holding period of the stock, other 
than the qualified portion, the corporation was a PFIC that was not a 
QEF.
    (3) A shareholder is a United States person that is a shareholder as 
defined in Sec.  1.1291-1(b)(7) or an indirect shareholder as defined in 
Sec.  1.1291-1(b)(8), except as provided in Sec.  1.1291-1(e).
    (k) Effective/applicability date. (1) The rules of this section, 
except for paragraph (j)(2)(v) of this section, are applicable as of 
April 1, 1995.
    (2) The rules of paragraph (j)(2)(v) of this section are applicable 
as of December 8, 2005.
    (3) Paragraph (j)(3) of this section applies to taxable years of 
shareholders ending on or after December 31, 2013.

[T.D. 8701, 61 FR 68151, Dec. 27, 1996; 62 FR 7155, Feb. 18, 1997, as 
amended by T.D. 8750, 63 FR 13, Jan. 2, 1998; T.D. 9231, 70 FR 72915, 
Dec. 8, 2005; T.D. 9360, 72 FR 54821, Sept. 27, 2007; T.D. 9650, 78 FR 
79608, Dec. 31, 2013; T.D. 9806, 81 FR 95466, Dec. 28, 2016]



Sec.  1.1291-10  Deemed sale election.

    (a) Deemed sale election. This section provides rules for making the 
election under section 1291(d)(2)(A) (deemed sale election). Under that 
section, a shareholder (as defined in Sec.  1.1291-9(j)(3)) of a PFIC 
that is an unpedigreed QEF may elect to recognize gain with respect to 
the stock of the unpedigreed QEF held on the qualification date (as 
defined in paragraph (e) of this section). If the shareholder makes the 
deemed sale

[[Page 679]]

election, the PFIC will become a pedigreed QEF with respect to the 
shareholder. A shareholder that makes the deemed sale election is 
treated as having sold, for its fair market value, the stock of the PFIC 
that the shareholder held on the qualification date. The gain recognized 
on the deemed sale is taxed under section 1291 as an excess distribution 
received on the qualification date. In the case of an election made by 
an indirect shareholder, the amount of gain to be recognized and taxed 
as an excess distribution is the amount of gain that the direct owner of 
the stock of the PFIC would have realized on an actual sale or other 
disposition of the stock of the PFIC indirectly owned by the 
shareholder. Any loss realized on the deemed sale is not recognized. For 
the definitions of PFIC, QEF, unpedigreed QEF, and pedigreed QEF, see 
Sec.  1.1291-9(j) (1) and (2).
    (b) Who may make the election. A shareholder of an unpedigreed QEF 
may make the deemed sale election provided the shareholder held stock of 
that PFIC on the qualification date. A shareholder is treated as holding 
stock of the PFIC on the qualification date if its holding period with 
respect to that stock under section 1223 includes the qualification 
date. A deemed sale election may be made by a shareholder that would 
realize a loss on the deemed sale.
    (c) Time for making the election. The shareholder makes the deemed 
sale election in the shareholder's return for the taxable year that 
includes the qualification date. If the shareholder and the PFIC have 
the same taxable year, the shareholder makes the deemed sale election in 
either the original return for the taxable year for which the 
shareholder makes the section 1295 election, or in an amended return for 
that year. If the shareholder and the PFIC have different taxable years, 
the deemed sale election must be made in an amended return for the 
taxable year that includes the qualification date. If the deemed sale 
election is made in an amended return, the amended return must be filed 
by a date that is within three years of the due date, as extended under 
section 6081, of the original return for the taxable year that includes 
the qualification date.
    (d) Manner of making the election. A shareholder makes the deemed 
sale election by filing Form 8621 with the return for the taxable year 
of the shareholder that includes the qualification date, reporting the 
gain as an excess distribution pursuant to section 1291(a), and paying 
the tax and interest due on the excess distribution. A shareholder that 
makes the deemed sale election after the due date of the return 
(determined without regard to extensions) for the taxable year that 
includes the qualification date must pay additional interest, pursuant 
to section 6601, on the amount of the underpayment of tax for that year. 
A shareholder that realizes a loss on the deemed sale reports the loss 
on Form 8621, but does not recognize the loss.
    (e) Qualification date--(1) In general. Except as otherwise provided 
in this paragraph (e), the qualification date is the first day of the 
PFIC's first taxable year as a QEF (first QEF year).
    (2) Elections made after March 31, 1995, and before January 27, 
1997--(i) In general. The qualification date for deemed sale elections 
made after March 31, 1995, and before January 27, 1997, is the first day 
of the shareholder's election year. The shareholder's election year is 
the taxable year of the shareholder for which it made the section 1295 
election.
    (ii) Exception. A shareholder who made the deemed sale election 
after May 1, 1992, and before January 27, 1997, may elect to change its 
qualification date to the first day of the first QEF year, provided the 
periods of limitations on assessment for the taxable year that includes 
that date and for the shareholder's election year have not expired. A 
shareholder changes the qualification date by filing amended returns, 
with revised Forms 8621, for the shareholder's election year and the 
shareholder's taxable year that includes the first day of the first QEF 
year, and making all appropriate adjustments and payments.
    (f) Adjustments to basis--(1) In general. A shareholder that makes 
the deemed sale election increases its adjusted basis of the PFIC stock 
owned directly by the amount of gain recognized on the deemed sale. If 
the shareholder makes the deemed sale election with

[[Page 680]]

respect to a PFIC of which it is an indirect shareholder, the 
shareholder's adjusted basis of the stock or other property owned 
directly by the shareholder, through which ownership of the PFIC is 
attributed to the shareholder, is increased by the amount of gain 
recognized by the shareholder. In addition, solely for purposes of 
determining the subsequent treatment under the Code and regulations of a 
shareholder of the stock of the PFIC, the adjusted basis of the direct 
owner of the stock of the PFIC is increased by the amount of gain 
recognized on the deemed sale. A shareholder shall not adjust the basis 
of any stock with respect to which the shareholder realized a loss on 
the deemed sale.
    (2) Adjustment of basis for section 1293 inclusion with respect to 
deemed sale election made after March 31, 1995, and before January 27, 
1997. For purposes of determining the amount of gain recognized with 
respect to a deemed sale election made after March 31, 1995, and before 
January 27, 1997, by a shareholder that treats the first day of the 
shareholder's election year as the qualification date, the adjusted 
basis of the stock deemed sold includes the shareholder's section 
1293(a) inclusion attributable to the period beginning with the first 
day of the PFIC's first QEF year and ending on the day before the 
qualification date.
    (g) Treatment of holding period. For purposes of applying sections 
1291 through 1297 to the shareholder after the deemed sale, the 
shareholder's holding period of the stock of the PFIC begins on the 
qualification date, without regard to whether the shareholder recognized 
gain on the deemed sale. For other purposes of the Code and regulations, 
this holding period rule does not apply.
    (h) Election inapplicable to shareholder of former PFIC. A 
shareholder may not make the section 1295 and deemed sale elections if 
the foreign corporation is a former PFIC (as defined in Sec.  1.1291-
9(j)(2)(iv)) with respect to the shareholder. For the rules regarding 
the election by a shareholder of a former PFIC, see Sec.  1.1297-3T.
    (i) Effective date. The rules of this section are applicable as of 
April 1, 1995.

[T.D. 8701, 61 FR 68153, Dec. 27, 1996]



Sec.  1.1293-0  Table of contents.

    This section contains a listing of the headings for Sec.  1.1293-1.

 Sec.  1.1293-1 Current inclusion of income of qualified electing funds.

    (a) In general. [Reserved]
    (1) Other rules. [Reserved]
    (2) Net capital gain defined.
    (i) In general.
    (ii) Effective date.
    (b) Other rules. [Reserved]
    (c) Application of rules of inclusion with respect to stock held by 
a pass through entity.
    (1) In general.
    (2) QEF stock transferred to a pass through entity.
    (i) Pass through entity makes a section 1295 election.
    (ii) Pass through entity does not make a section 1295 election.
    (3) Effective date.

[T.D. 8750, 63 FR 13, Jan. 2, 1998, as amended by T.D. 8870, 65 FR 
16319, Mar. 28, 2000]



Sec.  1.1293-1  Current taxation of income from qualified electing funds.

    (a) In general. [Reserved]
    (1) Other rules. [Reserved]
    (2) Net capital gain defined--(i) In general. This paragraph (a)(2) 
defines the term net capital gain for purposes of sections 1293 and 1295 
and the regulations under those sections. The QEF, as defined in Sec.  
1.1291-9(j)(2)(i), in determining its net capital gain for a taxable 
year, may either--
    (A) Calculate and report the amount of each category of long-term 
capital gain provided in section 1(h) that was recognized by the PFIC in 
the taxable year;
    (B) Calculate and report the amount of net capital gain recognized 
by the PFIC in the taxable year, stating that that amount is subject to 
the highest capital gain rate of tax applicable to the shareholder; or
    (C) Calculate its earnings and profits for the taxable year and 
report the entire amount as ordinary earnings.
    (ii) Effective date. Paragraph (a)(2)(i) of this section is 
applicable to sales by QEFs during their taxable years ending on or 
after May 7, 1997.
    (b) Other rules. [Reserved]
    (c) Application of rules of inclusion with respect to stock held by 
a pass through entity--(1) In general. If a domestic pass through entity 
makes a

[[Page 681]]

section 1295 election, as provided in paragraph (d)(2) of this section, 
with respect to the PFIC shares that it owns, directly or indirectly, 
the domestic pass through entity takes into account its pro rata share 
of the ordinary earnings and net capital gain attributable to the QEF 
shares held by the pass through entity. A U.S. person that indirectly 
owns QEF shares through the domestic pass through entity accounts for 
its pro rata shares of ordinary earnings and net capital gain 
attributable to the QEF shares according to the general rules applicable 
to inclusions of income from the domestic pass through entity. For the 
definition of pass through entity, see Sec.  1.1295-1(j).
    (2) QEF stock transferred to a pass through entity--(i) Pass through 
entity makes a section 1295 election. If a shareholder transfers stock 
subject to a section 1295 election to a domestic pass through entity of 
which it is an interest holder and the pass through entity makes a 
section 1295 election with respect to that stock, as provided in Sec.  
1.1295-1(d)(2), the shareholder takes into account its pro rata shares 
of the ordinary earnings and net capital gain attributable to the QEF 
shares under the rules applicable to inclusions of income from the pass 
through entity.
    (ii) Pass through entity does not make a section 1295 election. If 
the pass through entity does not make a section 1295 election with 
respect to the PFIC, the shares of which were transferred to the pass 
through entity subject to the 1295 election of the shareholder, the 
shareholder continues to be subject, in its capacity as an indirect 
shareholder, to the income inclusion rules of section 1293 and reporting 
rules required of shareholders of QEFs. Proper adjustments to reflect an 
inclusion in income under section 1293 by the indirect shareholder must 
be made, under the principles of Sec.  1.1291-9(f), to the basis of the 
indirect shareholder's interest in the pass through entity.
    (3) Effective date. Paragraph (c) of this section is applicable to 
taxable years of shareholders beginning after December 31, 1997.

[T.D. 8750, 63 FR 14, Jan. 2, 1998. Redesignated and amended by T.D. 
8870, 65 FR 5779, 5781, Feb. 7, 2000]



Sec.  1.1294-0  Table of contents.

    This section contains a listing of the headings for Sec.  1.1294-1T.

   Sec.  1.1294-1T Election to extend the time for payment of tax on 
          undistributed earnings of a qualified electing fund.

    (a) Purpose and scope.
    (b) Election to extend time for payment of tax.
    (1) In general.
    (2) Exception.
    (3) Undistributed earnings.
    (i) In general.
    (ii) Effect of loan, pledge or guarantee.
    (c) Time for making the election.
    (1) In general.
    (2) Exception.
    (d) Manner of making the election.
    (1) In general.
    (2) Information to be included in the election.
    (e) Termination of the extension.
    (f) Undistributed PFIC earnings tax liability.
    (g) Authority to require a bond.
    (h) Annual reporting requirement.

[T.D. 8750, 63 FR 13, Jan. 2, 1998]



Sec.  1.1294-1T  Election to extend the time for payment of tax 
on undistributed earnings of a qualified electing fund (temporary).

    (a) Purpose and scope. This section provides rules for making the 
annual election under section 1294. Under that section, a U.S. person 
that is a shareholder in a qualified electing fund (QEF) may elect to 
extend the time for payment of its tax liability which is attributable 
to its share of the undistributed earnings of the QEF. In general, a QEF 
is a passive foreign investment company (PFIC), as defined in section 
1296, that makes the election under section 1295. Under section 1293, a 
U.S. person that owns, or is treated as owning, stock of a QEF at any 
time during the taxable year of the QEF shall include in gross income, 
as ordinary income, its pro rata share of the ordinary earnings of the 
QEF for the taxable year and, as long-term capital gain, its pro rata 
share of the net capital gain of the QEF for the taxable year. The 
shareholder's share of the earnings shall be included in the 
shareholder's taxable year in which or with which the taxable year of 
the QEF ends.
    (b) Election to extend time for payment--(1) In general. A U.S. 
person that

[[Page 682]]

is a shareholder of a QEF on the last day of the QEF's taxable year may 
elect under section 1294 to extend the time for payment of that portion 
of its tax liability which is attributable to the inclusion in income 
pursuant to section 1293 of the shareholder's share of the QEF's 
undistributed earnings. The election under section 1294 may be made only 
with respect to undistributed earnings, and interest is imposed under 
section 6601 on the amount of the tax liability which is subject to the 
extension. This interest must be paid on the termination of the 
election.
    (2) Exception. An election under this Sec.  1.1294-1T cannot be made 
for a taxable year of the shareholder if any portion of the QEF's 
earning is includible in the gross income of the shareholder for such 
year under either section 551 (relating to foreign personal holding 
companies) or section 951 (relating to controlled foreign corporations).
    (3) Undistributed earnings--(i) In general. For purposes of this 
Sec.  1.1294-1T the term undistributed earnings means the excess, if 
any, of the amount includible in gross income by reason of section 
1293(a) for the shareholder's taxable year (the includible amount) over 
the sum of (A) the amount of any distribution to the shareholder during 
the QEF's taxable year and (B) the portion of the includible amount that 
is attributable to stock in the QEF that the shareholder transferred or 
otherwise disposed of before the end of the QEF's year. For purposes of 
this paragraph, a distribution will be treated as made from the most 
recently accumulated earnings and profits.
    (ii) Effect of a loan, pledge or guarantee. A loan, pledge, or 
guarantee described in Sec.  1.1294-1T(e) (2) or (4) will be treated as 
a distribution of earnings for purposes of paragraph (b)(3)(i)(A). If 
earnings are treated as distributed in a taxable year by reason of a 
loan, pledge or guarantee described in Sec.  1.1294-1T(e) (2) or (4), 
but the amount of the deemed distribution resulting therefrom was less 
than the amount of the actual loan by the QEF (or the amount of the loan 
secured by the pledge or guarantee), earnings derived by the QEF in a 
subsequent taxable year will be treated as distributed in such 
subsequent year to the shareholder for purposes of paragraph 
(b)(3)(i)(A) by virtue of such loan, but only to the extent of the 
difference between the outstanding principal balance on the loan in such 
subsequent year and the prior years' deemed distributions resulting from 
the loan. For this purpose, the outstanding principal balance on a loan 
in a taxable year shall be treated as equal to the greatest amount of 
the outstanding balance at any time during such year.

    Example 1. (i) Facts. FC is a PFIC that made the election under 
section 1295 to be a QEF for its taxable year beginning January 1, 1987. 
S owned 500 shares, or 50 percent, of FC throughout the first six months 
of 1987, but on June 30, 1987 sold 10 percent, or 50 shares, of the FC 
stock that it held. FC had $100,000x of ordinary earnings but no net 
capital gain in 1987. No part of FC's earnings is includible in S's 
income under either section 551 or 951. FC made no distributions to its 
shareholders in 1987. S's pro rata share of income is determined by 
attributing FC's income ratably to each day in FC's year. Accordingly, 
FC's daily earnings are $274x ($100,000x/365). S's share of the earnings 
of FC is $47,484x, determined as follows.

FC's daily earnings x number of days percentage held by S x percentage 
          of ownership in FC.


Accordingly, S's pro rata share of FC's earnings for the first six 
months of FC's year deemed earned while S held 50 percent of FC's stock 
is $24,797x ($274x x 181 days x 50%). S's pro rata share of FC's 
earnings for remainder of FC's year deemed earned while S held 45 
percent of FC's stock is $22,687x ($274x x 184 days x 45%). Therefore, 
S's total share of FC's earnings to be included in income under section 
1293 is $47,484x ($24,797x + $22,687x).
    (ii) Election. S intends to make the election under section 1294 to 
defer the payment of its tax liability that is attributable to the 
undistributed earnings of FC. The amount of current year undistributed 
earnings as defined in Sec.  1.1294-1T(b)(3) with respect to which S can 
make the election is the excess of S's inclusion in gross income under 
section 1293(a) for the taxable year over the sum of (1) the cash and 
other property distributed to S during FC's tax year out of earnings 
included in income pursuant to section 1293(a), and (2) the earnings 
attributable to stock disposed of during FC's tax year. Because S sold 
10 percent, or 50 shares, of the FC stock that it held during the first 
six months of the year, 10 percent of its share of the earnings for that 
part of the year, which is $2,480x ($24,797x x 10%), is attributable to 
the shares sold. S therefore cannot make the election under section 1294 
to extend the time for payment of its tax liability on that amount.

[[Page 683]]

Accordingly, S can make the election under section 1294 with respect to 
its tax on $45,004x ($47,484x less $2,480x), which is its pro rata share 
of FC's earnings, reduced by the earnings attributable to the stock 
disposed of during the year.
    Example 2. (i) Facts. The facts are the same as in Example 1 with 
the following exceptions. S did not sell any FC stock during 1987. 
Therefore, because S held 50 percent of the FC stock throughout 1987, 
S's pro rata share of FC's ordinary earnings was $50,000x, no part of 
which was includible in S's income under either section 551 or 951. 
There were no actual distributions of earnings to S in 1988. On December 
31, 1987, S pledged the FC stock as security for a bank loan of 
$75,000x. The pledge is treated as a disposition of the FC stock and 
therefore a distribution of S's share of the undistributed earnings of 
FC up to the amount of the loan principal. S's entire share of the 
undistributed earnings of FC are deemed distributed as a result of the 
pledge of the FC stock. S therefore cannot make the election under 
section 1294 to extend the time for payment of its tax liability on its 
share of FC's earnings for 1987.
    (ii) Deemed distribution. In 1988, FC has ordinary earnings of 
$100,000x but no net capital gain. S's pro rata share of FC's 1988 
ordinary earnings was $50,000x. S's loan remained outstanding throughout 
1988; the highest loan balance during 1988 was $74,000x. Of S's share of 
the ordinary earnings of FC of $50,000x, $24,000x is deemed distributed 
to S. This is the amount by which the highest loan balance for the year 
($74,000x) exceeds the portion of the undistributed earnings of FC 
deemed distributed to S in 1987 by reason of the pledge ($50,000x). S 
may make the election under section 1294 to extend the time for payment 
of its tax liability on $26,000x, which is the amount by which S's 
includible amount for 1988 exceeds the amount deemed distributed to S 
during 1988.

    (c) Time for making the election--(1) In general. An election under 
this Sec.  1.1294-1T may be made for any taxable year in which a 
shareholder reports income pursuant to section 1293. Except as provided 
in paragraph (c)(2), the election shall be made by the due date, as 
extended, of the tax return for the shareholder's taxable year for which 
the election is made.
    (2) Exception. An election under this section may be made within 60 
days of receipt of notification from the QEF of the shareholder's pro 
rata share of the ordinary earnings and net capital gain if notification 
is received after the time for filing the election provided in paragraph 
(c)(1) (and requires the filing of an amended return to report income 
pursuant to section 1293). If the notification reports an increase in 
the shareholder's pro rata share of the earnings previously reported to 
the shareholder by the QEF, the shareholder may make the election under 
this paragraph (c)(2) only with respect to the amount of such increase.
    (d) Manner of making the election--(1) In general. A shareholder 
shall make the election by (i) attaching to its return for the year of 
the election Form 8621 or a statement containing the information and 
representations required by this section and (ii) filing a copy of Form 
8621 or the statement with the Internal Revenue Service Center, P.O. Box 
21086, Philadelphia, Pennsylvania 19114.
    (2) Information to be included in the election statement. If a 
statement is used in lieu of Form 8621, the statement should be 
identified, in a heading, as an election under section 1294 of the Code. 
The statement must include the following information and 
representations:
    (i) The name, address, and taxpayer identification number of the 
electing shareholder and the taxable year of the shareholder for which 
the election is being made;
    (ii) The name, address and taxpayer identification number of the QEF 
if provided to the shareholder;
    (iii) A statement that the shareholder is making the election under 
section 1294 of the Code;
    (iv) A schedule containing the following information:
    (A) The ordinary earnings and net capital gain for the current year 
included in the shareholder's income under section 1293;
    (B) The amount of cash and other property distributed by the QEF 
during its taxable year with respect to stock held directly or 
indirectly by the shareholder during that year, identifying the amount 
of such distributions that is paid out of current earnings and profits 
and the amount paid out of each prior year's earnings and profits; and
    (C) The undistributed PFIC earnings tax liability (as defined in 
paragraph (f) of this section) for the taxable year, payment of which is 
being deferred by reason of the election under section 1294;

[[Page 684]]

    (v) The number of shares of stock held in the QEF during the QEF's 
taxable year which gave rise to the section 1293 inclusion and the 
number of such shares transferred, deemed transferred or otherwise 
disposed of by the electing shareholder before the end of the QEF's 
taxable year, and the data of transfer; and
    (vi) The representations of the electing shareholder that--
    (A) No part of the QEF's earnings for the taxable year is includible 
in the electing shareholder's gross income under either section 551 or 
951 of the Code;
    (B) The election is made only with respect to the shareholder's pro 
rata share of the undistributed earnings of the QEF; and
    (C) The electing shareholder, upon termination of the election to 
extend the date for payment, shall pay the undistributed PFIC earnings 
tax liability attributable to those earnings to which the termination 
applies as well as interest on such tax liability pursuant to section 
6601. Payment of this tax and interest must be made by the due date 
(determined without extensions) of the tax return for the taxable year 
in which the termination occurs.
    (e) Termination of the extension. The election to extend the date 
for payment of tax will be terminated in whole or in part upon the 
occurrence of any of the following events:
    (1) The QEF's distribution of earnings to which the section 1294 
extension to pay tax is attributable; the extension will terminate only 
with respect to the tax attributable to the earnings that were 
distributed.
    (2) The electing shareholder's transfer of stock in the QEF (or use 
thereof as security for a loan) with respect to which an election under 
this Sec.  1.1294-1T was made. The election will be terminated with 
respect to the undistributed earnings attributable to the shares of the 
stock transferred. In the case of a pledge of the stock, the election 
will be terminated with respect to undistributed earnings equal to the 
amount of the loan for which the stock is pledged.
    (3) Revocation of the QEF's election as a QEF or cessation of the 
QEF's status as a PFIC. A revocation of the QEF election or cessation of 
PFIC status will result in the complete termination of the extension.
    (4) A loan of property by the QEF directly or indirectly to the 
electing shareholder or related person, or a pledge or guarantee by the 
QEF with respect to a loan made by another party to the electing 
shareholder or related person. The election will be terminated with 
respect to undistributed earnings in an amount equal to the amount of 
the loan, pledge, or guarantee.
    (5) A determination by the District Director pursuant to section 
1294(c)(3) that collection of the tax is in jeopardy. The amount of 
undistributed earnings with respect to which the extension is terminated 
under this paragraph (d)(5) will be left to the discretion of the 
District Director.
    (f) Undistributed PFIC earnings tax liability. The electing 
shareholder's tax liability attributable to the ordinary earnings and 
net capital gain included in gross income under section 1293 shall be 
the excess of the tax imposed under chapter 1 of the Code for the 
taxable year over the tax that would be imposed for the taxable year 
without regard to the inclusion in income under section 1293 of the 
undistributed earnings as defined in paragraph (b)(3) of this section.

    Example: The facts are the same as in Sec.  1.1294-1T (b)(3), 
Example 1, with the following exceptions. S, a domestic corporation, did 
not dispose of any FC stock in 1987. Therefore, because S held 50 
percent of the FC stock throughout 1987, S's pro rata share of FC's 
ordinary earnings was $50,000x. In addition to $50,000x of ordinary 
earnings from FC, S had $12,500x of domestic source income and $6,000x 
of expenses (other than interest expense) not definitely related to any 
gross income. These expenses are apportioned, pursuant to Sec.  1.861-
8(c)(2), on a pro rata basis between the domestic and foreign source 
income--$1,200x of expenses, or one-fifth, to domestic source income, 
and $4,800x of expenses, or four-fifths, to the section 1293 inclusion. 
FC paid foreign taxes of $25,000x in 1987. Accordingly, S is entitled to 
claim as an indirect foreign tax credit pursuant to section 1293(f) a 
proportionate amount of the foreign taxes paid by FC, which is $12,500x 
($25,000x x $50,000x/$100,000x). S is taxed in the U.S. at the rate of 
34 percent. The amount of tax liability for which S may extend the time 
for payment is determined as follows:

[[Page 685]]



            1987 Tax Liability (With Section 1293 Inclusion)
------------------------------------------------------------------------
                 Source                        U.S.           Foreign
------------------------------------------------------------------------
Income..................................         12,500x               0
Section 1293............................               0         50,000x
Expenses................................         -1,200x         -4,800x
                                         -------------------------------
Taxable income..........................         11,300x         45,200x
                                         ===============================
  Total taxable income..................         56,500x
  U.S. income tax rate..................            x34%
                                         ----------------
  Pre-credit U.S. tax...................         19,210x
  Foreign tax credit....................        -12,500x
                                         ----------------
  1987 Tax Liability....................          6,710x
------------------------------------------------------------------------


           1987 Tax Liability (Without Section 1293 Inclusion)
------------------------------------------------------------------------
                 Source                        U.S.           Foreign
------------------------------------------------------------------------
Income..................................         12,500x               0
Expenses................................         -6,000x
                                         ----------------
Taxable income..........................          6,500x
U.S. tax rate...........................            x34%
                                         ----------------
U.S. Tax................................          2,210x
Foreign tax credit......................               0
                                         ----------------
Hypothetical 1987 Tax Liability.........          2,210x
------------------------------------------------------------------------

    The amount of tax, payment of which S may defer pursuant to section 
1294, is $4,500x ($6,710x less $2,210x).

    (g) Authority to require a bond. Pursuant to the authority granted 
in section 6165 and in the manner provided therein, and subject to 
notification, the District Director may require the electing shareholder 
to furnish a bond to secure payment of the tax, the time for payment of 
which is extended under this section. If the electing shareholder does 
not furnish the bond within 60 days after receiving a request from the 
District Director, the election will be revoked.
    (h) Annual reporting requirement. The electing shareholder must 
attach Form 8621 or a statement to its income tax return for each year 
during which an election under this section is outstanding. The 
statement must contain the following information:
    (1) The total amount of undistributed earnings as of the end of the 
taxable year to which the outstanding elections apply;
    (2) The total amount of the undistributed PFIC earnings tax 
liability and accrued interest charge as of the end of the year;
    (3) The total amount of distributions received during the taxable 
year; and
    (4) A description of the occurrence of any other termination event 
described in paragraph (e) of this section that occurred during the 
taxable year.

The electing shareholder also shall file by the due date, as extended, 
for its return a copy of Form 8621 or the statement with the 
Philadelphia Service Center, P.O. Box 21086, Philadelphia, Pennsylvania 
19114.

[T.D. 8178, 53 FR 6773, Mar. 2, 1988; 53 FR 11731, Apr. 8, 1988]



Sec.  1.1295-0  Table of contents.

    This section contains a listing of the headings for Sec. Sec.  
1.1295-1 and 1.1295-3.

                Sec.  1.1295-1 Qualified electing funds.

    (a) In general. [Reserved]
    (b) Application of section 1295 election. [Reserved]
    (1) Election personal to shareholder. [Reserved]
    (2) Election applicable to specific corporation only.
    (i) In general. [Reserved]
    (ii) Stock of QEF received in a nonrecognition transfer. [Reserved]
    (iii) Exception for options.
    (3) Application of general rules to stock held by a pass through 
entity.
    (i) Stock subject to a section 1295 election transferred to a pass 
through entity.
    (ii) Limitation on application of pass through entity's section 1295 
election.
    (iii) Effect of partnership termination on section 1295 election.
    (iv) Characterization of stock held through a pass through entity.
    (4) Application of general rules to a taxpayer filing a joint return 
under section 6013.
    (c) Effect of section 1295 election.
    (1) In general.
    (2) Years to which section 1295 election applies.
    (i) In general.
    (ii) Effect of PFIC status on election.
    (iii) Effect on election of complete termination of a shareholder's 
interest in the PFIC.
    (iv) Effect on section 1295 election of transfer of stock to a 
domestic pass through entity.
    (v) Examples.
    (d) Who may make a section 1295 election.
    (1) General rule.
    (2) Application of general rule to pass through entities.
    (i) Partnerships.

[[Page 686]]

    (A) Domestic partnership.
    (B) Foreign partnership.
    (ii) S corporation.
    (iii) Trust or estate.
    (A) Domestic trust or estate.
    (1) Nongrantor trust or estate.
    (2) Grantor trust.
    (B) Foreign trust or estate.
    (1) Nongrantor trust or estate.
    (2) Grantor trust.
    (iv) Indirect ownership of the pass through entity or the PFIC.
    (3) Indirect ownership of a PFIC through other PFICs.
    (4) Member of consolidated return group as shareholder.
    (5) Option holder.
    (6) Exempt organization.
    (e) Time for making a section 1295 election.
    (1) General rule.
    (2) Examples.
    (f) Manner of making a section 1295 election and the annual election 
requirements of the shareholder.
    (1) Manner of making the election.
    (2) Annual election requirements.
    (i) In general.
    (ii) Retention of documents.
    (g) Annual election requirements of the PFIC or intermediary.
    (1) PFIC Annual Information Statement.
    (2) Alternative documentation.
    (3) Annual Intermediary Statement.
    (4) Combined statements.
    (i) PFIC Annual Information Statement.
    (ii) Annual Intermediary Statement.
    (h) Transition rules.
    (i) Invalidation, termination or revocation of section 1295 
election.
    (1) Invalidation or termination of election at the discretion of the 
Commissioner.
    (i) In general.
    (ii) Deferral of section 1293 inclusion.
    (iii) When effective.
    (2) Shareholder revocation.
    (i) In general.
    (ii) Time for and manner of requesting consent to revoke.
    (A) Time.
    (B) Manner of making request.
    (iii) When effective.
    (3) Automatic termination.
    (4) Effect of invalidation, termination or revocation.
    (5) Election after invalidation, termination or revocation.
    (i) In general.
    (ii) Special rule.
    (j) Definitions.
    (k) Effective dates.

                  Sec.  1.1295-3 Retroactive elections.

    (a) In general.
    (b) General rule.
    (c) Protective Statement.
    (1) In general.
    (2) Reasonable belief statement.
    (3) Who executes and files the Protective Statement.
    (4) Waiver of the periods of limitations.
    (i) Time for and manner of extending periods of limitations.
    (A) In general.
    (B) Application of general rule to domestic partnerships.
    (1) In general
    (2) Special rules.
    (i) Addition of partner to non-TEFRA partnership.
    (ii) Change in status from non-TEFRA partnership to TEFRA 
partnership.
    (C) Application of general rule to domestic nongrantor trusts and 
domestic estates.
    (D) Application of general rule to S corporations.
    (E) Effect on waiver of complete termination of a pass through 
entity or pass through entity's business.
    (F) Application of general rule to foreign partnerships, foreign 
trusts, domestic or foreign grantor trusts, and foreign estates.
    (ii) Terms of waiver.
    (A) Scope of waiver.
    (B) Period of waiver.
    (5) Time for and manner of filing a Protective Statement.
    (i) In general.
    (ii) Special rule for taxable years ended before January 2, 1998
    (6) Applicability of the Protective Statement.
    (i) In general.
    (ii) Invalidity of the Protective Statement.
    (7) Retention of Protective Statement and information demonstrating 
reasonable belief.
    (d) Reasonable belief.
    (1) In general.
    (2) Knowledge of law required.
    (e) Special rules for qualified shareholders.
    (1) In general.
    (2) Qualified shareholder.
    (3) Exceptions.
    (f) Special consent.
    (1) In general.
    (2) Reasonable reliance on a qualified tax professional.
    (i) In general.
    (ii) Shareholder deemed to have not reasonably relied on a qualified 
tax professional.
    (3) Prejudice to the interests of the United States government.
    (i) General rule.
    (ii) Elimination of prejudice to the interests of the United States 
government.
    (4) Procedural requirements.
    (i) Filing instructions.
    (ii) Affidavit from shareholder.
    (iii) Affidavits from other persons.
    (iv) Other information.
    (v) Notification of Internal Revenue Service.

[[Page 687]]

    (vi) Who requests special consent under this paragraph (f) and who 
enters into a closing agreement.
    (g) Time for and manner of making a retroactive election.
    (1) Time for making a retroactive election.
    (i) In general.
    (ii) Transition rule.
    (iii) Ownership not required at time retroactive election is made.
    (2) Manner of making a retroactive election.
    (3) Who makes the retroactive election.
    (4) Other elections.
    (i) Section 1291(d)(2) election.
    (ii) Section 1294 election.
    (h) Effective date.

[T.D. 8750, 63 FR 14, Jan. 2, 1998, as amended by T.D. 8870, 65 FR 5779, 
Feb. 7, 2000; 65 FR 16319, Mar. 28, 2000; T.D. 9123, 69 FR 24073, May 3, 
2004]



Sec.  1.1295-1  Qualified electing funds.

    (a) In general. [Reserved]
    (b) Application of section 1295 election. [Reserved]
    (1) Election personal to shareholder. [Reserved]
    (2) Election applicable to specific corporation only--
    (i) In general. [Reserved]
    (ii) Stock of QEF received in a nonrecognition transfer. [Reserved]
    (iii) Exception for options. A shareholder's section 1295 election 
does not apply to any option to buy stock of the PFIC.
    (3) Application of general rules to stock held by a pass through 
entity--(i) Stock subject to a section 1295 election transferred to a 
pass through entity. A shareholder's section 1295 election will not 
apply to a domestic pass through entity to which the shareholder 
transfers stock subject to section 1295 election, or to any other U.S. 
person that is an interest holder or beneficiary of the domestic pass 
through entity. However, as provided in paragraph (c)(2)(iv) of this 
section (relating to a transfer to a domestic pass through entity of 
stock subject to a section 1295 election), a shareholder that transfers 
stock subject to a section 1295 election to a pass through entity will 
continue to be subject to the section 1295 election with respect to the 
stock indirectly owned through the pass through entity and any other 
stock of that PFIC owned by the shareholder.
    (ii) Limitation on application of pass through entity's section 1295 
election. Except as provided in paragraph (c)(2)(iv) of this section, a 
section 1295 election made by a domestic pass through entity does not 
apply to other stock of the PFIC held directly or indirectly by the 
interest holder or beneficiary.
    (iii) Effect of partnership termination on section 1295 election. 
Termination of a section 1295 election made by a domestic partnership by 
reason of the termination of the partnership under section 708(b) will 
not terminate the section 1295 election with respect to partners of the 
terminated partnership that are partners of the new partnership. Except 
as otherwise provided, the stock of the PFIC of which the new partners 
are indirect shareholders will be treated as stock of a QEF only if the 
new domestic partnership makes a section 1295 election with respect to 
that stock.
    (iv) Characterization of stock held through a pass through entity. 
Stock of a PFIC held through a pass through entity will be treated as 
stock of a pedigreed QEF with respect to an interest holder or 
beneficiary only if--
    (A) In the case of PFIC stock acquired (other than in a transaction 
in which gain is not recognized pursuant to regulations under section 
1291(f) with respect to that stock) and held by a domestic pass through 
entity, the pass through entity makes the section 1295 election and the 
PFIC has been a QEF with respect to the pass through entity for all 
taxable years that are included wholly or partly in the pass through 
entity's holding period of the PFIC stock and during which the foreign 
corporation was a PFIC within the meaning of Sec.  1.1291-9(j)(1); or
    (B) In the case of PFIC stock transferred by an interest holder or 
beneficiary to a pass through entity in a transaction in which gain is 
not fully recognized (including pursuant to regulations under section 
1291(f)), the pass through entity makes the section 1295 election with 
respect to the PFIC stock transferred for the taxable year in which the 
transfer was made. The PFIC stock transferred will be treated as stock 
of a pedigreed QEF by the pass through entity, however, only if that

[[Page 688]]

stock was treated as stock of a pedigreed QEF with respect to the 
interest holder or beneficiary at the time of the transfer, and the PFIC 
has been a QEF with respect to the pass through entity for all taxable 
years of the PFIC that are included wholly or partly in the pass through 
entity's holding period of the PFIC stock during which the foreign 
corporation was a PFIC within the meaning of Sec.  1.1291-9(j).
    (v) Characterization of stock distributed by a partnership. In the 
case of PFIC stock distributed by a partnership to a partner in a 
transaction in which gain is not fully recognized, the PFIC stock will 
be treated as stock of a pedigreed QEF by the partners only if that 
stock was treated as stock of a pedigreed QEF with respect to the 
partnership for all taxable years of the PFIC that are included wholly 
or partly in the partnership's holding period of the PFIC stock during 
which the foreign corporation was a PFIC within the meaning of Sec.  
1.1291-9(j), and the partner has a section 1295 election in effect with 
respect to the distributed PFIC stock for the partner's taxable year in 
which the distribution was made. If the partner does not have a section 
1295 election in effect, the stock shall be treated as stock in a 
section 1291 fund. See paragraph (k) of this section for special 
applicability date of paragraph (b)(3)(v) of this section.
    (4) Application of general rules to a taxpayer filing a joint return 
under section 6013. A section 1295 election made by a taxpayer in a 
joint return, within the meaning of section 6013, will be treated as 
also made by the spouse that joins in the filing of that return. See 
paragraph (k) of this section for special applicability date of 
paragraph (b)(4) of this section.
    (c) Effect of section 1295 election--(1) In general. Except as 
otherwise provided in this paragraph (c), the effect of a shareholder's 
section 1295 election is to treat the foreign corporation as a QEF with 
respect to the shareholder for each taxable year of the foreign 
corporation ending with or within a taxable year of the shareholder for 
which the election is effective. A section 1295 election is effective 
for the shareholder's election year and all subsequent taxable years of 
the shareholder unless invalidated, terminated or revoked as provided in 
paragraph (i) of this section. The terms shareholder and shareholder's 
election year are defined in paragraph (j) of this section.
    (2) Years to which section 1295 election applies--(i) In general. 
Except as otherwise provided in this paragraph (c), a foreign 
corporation with respect to which a section 1295 election is made will 
be treated as a QEF for its taxable year ending with or within the 
shareholder's election year and all subsequent taxable years of the 
foreign corporation that are included wholly or partly in the 
shareholder's holding period (or periods) of stock of the foreign 
corporation.
    (ii) Effect of PFIC status on election. A foreign corporation will 
not be treated as a QEF for any taxable year of the foreign corporation 
that the foreign corporation is not a PFIC under section 1297(a) and is 
not treated as a PFIC under section 1298(b)(1). Therefore, a shareholder 
shall not be required to include pursuant to section 1293 the 
shareholder's pro rata share of ordinary earnings and net capital gain 
for such year and shall not be required to satisfy the section 1295 
annual reporting requirement of paragraph (f)(2) of this section for 
such year. Cessation of a foreign corporation's status as a PFIC will 
not, however, terminate a section 1295 election. Thus, if the foreign 
corporation is a PFIC in any taxable year after a year in which it is 
not treated as a PFIC, the shareholder's original election under section 
1295 continues to apply and the shareholder must take into account its 
pro rata share of ordinary earnings and net capital gain for such year 
and comply with the section 1295 annual reporting requirement.
    (iii) Effect on election of complete termination of a shareholder's 
interest in the PFIC. Complete termination of a shareholder's direct and 
indirect interest in stock of a foreign corporation will not terminate a 
shareholder's section 1295 election with respect to the foreign 
corporation. Therefore, if a shareholder reacquires a direct or indirect 
interest in any stock of the foreign corporation, that stock is 
considered to be stock for which an election under section 1295 has been 
made and the shareholder is

[[Page 689]]

subject to the income inclusion and reporting rules required of a 
shareholder of a QEF.
    (iv) Effect on section 1295 election of transfer of stock to a 
domestic pass through entity. The transfer of a shareholder's direct or 
indirect interest in stock of a foreign corporation to a domestic pass 
through entity (as defined in paragraph (j) of this section) will not 
terminate the shareholder's section 1295 election with respect to the 
foreign corporation, whether or not the pass through entity makes a 
section 1295 election. For the rules concerning the application of 
section 1293 to stock transferred to a domestic pass through entity, see 
Sec.  1.1293-1(c).
    (v) Examples. The following examples illustrate the rules of this 
paragraph (c)(2).

    Example 1. In 1998, C, a U.S. person, purchased stock of FC, a 
foreign corporation that is a PFIC. Both FC and C are calendar year 
taxpayers. C made a timely section 1295 election to treat FC as a QEF in 
C's 1998 return, and FC was therefore a pedigreed QEF. C included its 
shares of FC's 1998 ordinary earnings and net capital gain in C's 1998 
Income and did not make a section 1294 election to defer the time for 
payment of tax on that income. In 1999, 2000, and 2001, FC did not 
satisfy either the income or asset test of section 1296(a), and 
therefore was neither a PFIC nor a QEF. C therefore did not have to 
include its pro rata shares of the ordinary earnings and net capital 
gain of FC pursuant to section 1293, or satisfy the section 1295 annual 
reporting requirements for any of those years. FC qualified as a PFIC 
again in 2002. Because C had made a section 1295 election in 1998, and 
the election had not been invalidated, terminated, or revoked, within 
the meaning of paragraph (i) of this section, C's section 1295 election 
remains in effect for 2002. C therefore is subject in 2002 to the income 
inclusion and reporting rules required of shareholders of QEFs.
    Example 2. The facts are the same as in Example (1) except that FC 
did not lose PFIC status in any year and C sold all the FC stock in 1999 
and repurchased stock of FC in 2002. Because C had made a section 1295 
election in 1998 with respect to stock of FC, and the election had not 
been invalidated, terminated, or revoked, within the meaning of 
paragraph (i) of this section, C's section 1295 election remained in 
effect and therefore applies to the stock of FC purchased by C in 2002. 
C therefore is subject in 2002 to the income inclusion and reporting 
rules required of shareholders of QEFs.
    Example 3. The facts are the same as in Example (2) except that C is 
a partner in domestic partnership P and C transferred its FC stock to P 
in 1999. Because C had made a section 1295 election in 1998 with respect 
to stock of FC, and the election had not been invalidated, terminated, 
or revoked, within the meaning of paragraph (i) of this section, C's 
section 1295 election remains in effect with respect to its indirect 
interest in the stock of FC. If P does not make the section 1295 
election with respect to the FC stock, C will continue to be subject, in 
C's capacity as an indirect shareholder of FC, to the income inclusion 
and reporting rules required of shareholders of QEFs in 1999 and 
subsequent years for that portion of the FC stock C is treated as owning 
indirectly through the partnership. If P makes the section 1295 
election, C will take into account its pro rata shares of the ordinary 
earnings and net capital gain of the FC under the rules applicable to 
inclusions of income from P.

    (d) Who may make a section 1295 election--(1) General rule. Except 
as otherwise provided in this paragraph (d), any U.S. person that is a 
shareholder (as defined in paragraph (j) of this section) of a PFIC, 
including a shareholder that holds stock of a PFIC in bearer form, may 
make a section 1295 election with respect to that PFIC. The shareholder 
need not own directly or indirectly any stock of the PFIC at the time 
the shareholder makes the section 1295 election provided the shareholder 
is a shareholder of the PFIC during the taxable year of the PFIC that 
ends with or within the taxable year of the shareholder for which the 
section 1295 election is made. Except in the case of a shareholder that 
is an exempt organization that may not make a section 1295 election, as 
provided in paragraph (d)(6) of this section, in a chain of ownership 
only the first U.S. person that is a shareholder of the PFIC may make 
the section 1295 election.
    (2) Application of general rule to pass through entities--(i) 
Partnerships--(A) Domestic partnership. A domestic partnership that 
holds an interest in stock of a PFIC makes the section 1295 election 
with request to that PFIC. The partnership election applies only to the 
stock of the PFIC held directly or indirectly by the partnership and not 
to any other stock held directly or indirectly by any partner. As 
provided in Sec.  1.1293-1(c)(1), shareholders owning stock of a QEF by 
reason of an interest

[[Page 690]]

in the partnership take into account the section 1293 inclusions with 
respect to the QEF shares owned by the partnership under the rules 
applicable to inclusions of income from the partnership.
    (B) Foreign partnership. A U.S. person that holds an interest in a 
foreign partnership that, in turn, holds an interest in stock of a PFIC 
makes the section 1295 election with respect to that PFIC. A partner's 
election applies to the stock of the PFIC owned directly or indirectly 
by the foreign partnership and to any other stock of the PFIC owned by 
that partner. A section 1295 election by a partner applies only to that 
partner.
    (ii) S corporation. An S corporation that holds an interest in stock 
of a PFIC makes the section 1295 election with respect to that PFIC. The 
S corporation election applies only to the stock of the PFIC held 
directly or indirectly by the S corporation and not to any other stock 
held directly or indirectly by any S corporation shareholder. As 
provided in Sec.  1.1293-1(c)(1), shareholders owning stock of a QEF by 
reason of an interest in the S corporation take into account the section 
1293 inclusions with respect to the QEF shares under the rules 
applicable to inclusions of income from the S corporation.
    (iii) Trust or estate--(A) Domestic trust or estate--(1) Nongrantor 
trust or estate. A domestic nongrantor trust or a domestic estate that 
holds an interest in stock of a PFIC makes the section 1295 election 
with respect to that PFIC. The trust or estate's election applies only 
to the stock of the PFIC held directly or indirectly by the trust or 
estate and not to any other stock held directly or indirectly by any 
beneficiary. As provided in Sec.  1.1293-1(c)(1), shareholders owning 
stock of a QEF by reason of an interest in a domestic trust or estate 
take into account the section 1293 inclusions with respect to the QEF 
shares under the rules applicable to inclusions of income from the trust 
or estate.
    (2) Grantor trust. A U.S. person that is treated under sections 671 
through 678 as the owner of the portion of a domestic trust that owns an 
interest in stock of a PFIC makes the section 1295 election with respect 
to that PFIC. If that person ceases to be treated as the owner of the 
portion of the trust that owns an interest in the PFIC stock and is a 
beneficiary of the trust, that person's section 1295 election will 
continue to apply to the PFIC stock indirectly owned by that person 
under the rules of paragraph (c)(2)(iv) of this section as if the person 
had transferred its interest in the PFIC stock to the trust. However, 
the stock will be treated as stock of a PFIC that is not a QEF with 
respect to other beneficiaries of the trust, unless the trust makes the 
section 1295 election as provided in paragraph (d)(2)(iii)(A)(1) of this 
section.
    (B) Foreign trust or estate--(1) Nongrantor trust or estate. A U.S. 
person that is a beneficiary of a foreign nongrantor trust or estate 
that holds an interest in stock of a PFIC makes the section 1295 
election with respect to that PFIC. A beneficiary's section 1295 
election applies to all the PFIC stock owned directly and indirectly by 
the trust or estate and to the other PFIC stock owned directly or 
indirectly by the beneficiary. A section 1295 election by a beneficiary 
applies only to that beneficiary.
    (2) Grantor trust. A U.S. person that is treated under sections 671 
through 679 as the owner of the portion of a foreign trust that owns an 
interest in stock of a PFIC stock makes the section 1295 election with 
respect to that PFIC. If that person ceases to be treated as the owner 
of the portion of the trust that owns an interest in the PFIC stock and 
is a beneficiary of the trust, that person's section 1295 election will 
continue to apply to the PFIC stock indirectly owned by that person 
under the rules of paragraph (c)(2)(iv) of this section. However, as 
provided in paragraph (d)(2)(iii)(B)(1) of this section, any other 
shareholder that is a beneficiary of the trust and that wishes to treat 
the PFIC as a QEF must make the section 1295 election.
    (iv) Indirect ownership of the pass through entity or the PFIC. The 
rules of this paragraph (d)(2) apply whether or not the shareholder 
holds its interest in the pass through entity directly or indirectly and 
whether or not the pass through entity holds its interest in the PFIC 
directly or indirectly.

[[Page 691]]

    (3) Indirect ownership of a PFIC through other PFICs--(i) In 
general. An election under section 1295 shall apply only to the foreign 
corporation for which an election is made. Therefore, if a shareholder 
makes an election under section 1295 to treat a PFIC as a QEF, that 
election applies only to stock in that foreign corporation and not to 
the stock in any other corporation which the shareholder is treated as 
owning by virtue of its ownership of stock in the QEF.
    (ii) Example. The following example illustrates the rules of 
paragraph (d)(3)(i) of this section:

    Example. In 1988, T, a U.S. person, purchased stock of FC, a foreign 
corporation that is a PFIC. FC also owns the stock of SC, a foreign 
corporation that is a PFIC. T makes an election under section 1295 to 
treat FC as a QEF. T's section 1295 election applies only to the stock T 
owns in FC, and does not apply to the stock T indirectly owns in SC.

    (4) Member of consolidated return group as shareholder. Pursuant to 
Sec.  1.1502-77(a), the common parent of an affiliated group of 
corporations that join in filing a consolidated income tax return makes 
a section 1295 election for all members of the affiliated group. An 
election by a common parent will be effective for all members of the 
affiliated group with respect to interests in PFIC stock held at the 
time the election is made or at any time thereafter. A separate election 
must be made by the common parent for each PFIC of which a member of the 
affiliated group is a shareholder.
    (5) Option holder. A holder of an option to acquire stock of a PFIC 
may not make a section 1295 election that will apply to the option or to 
the stock subject to the option.
    (6) Exempt organization. A tax-exempt organization that is not 
taxable under section 1291, pursuant to Sec.  1.1291-1(e), with respect 
to a PFIC may not make a section 1295 election with respect to that 
PFIC. In addition, such an exempt organization will not be subject to 
any section 1295 election made by a domestic pass through entity.
    (e) Time for making a section 1295 election--(1) In general. Except 
as provided in Sec.  1.1295-3, a shareholder making the section 1295 
election must make the election on or before the due date, as extended 
under section 6081 (election due date), for filing the shareholder's 
income tax return for the first taxable year to which the election will 
apply. The section 1295 election must be made in the original return for 
that year, or in an amended return, provided the amended return is filed 
on or before the election due date.
    (2) Examples. The following examples illustrate the rules of 
paragraph (e)(1) of this section:

    Example 1. In 1998, C, a domestic corporation, purchased stock of 
FC, a foreign corporation that is a PFIC. Both C and FC are calendar 
year taxpayers. C wishes to make the section 1295 election for its 
taxable year ended December 31, 1998. The section 1295 election must be 
made on or before March 15, 1999, the due date of C's 1998 income tax 
return as provided by section 6072(b). On March 14, 1999, C files a 
request for a three-month extension of time to file its 1998 income tax 
return under section 6081(b). C's time to file its 1998 income tax 
return and to make the section 1295 election is thereby extended to June 
15, 1999.
    Example 2. The facts are the same as in Example 1 except that on May 
1, 1999, C filed its 1998 income tax return and failed to include the 
section 1295 election. C may file an amended income tax return for 1998 
to make the section 1295 election provided the amended return is filed 
on or before the extended due date of June 15, 1999.

    (f) Manner of making a section 1295 election and the annual election 
requirements of the shareholder--(1) Manner of making the election. A 
shareholder must make a section 1295 election by--
    (i) Completing Form 8621 in the manner required by that form and 
this section for making the section 1295 election;
    (ii) Attaching Form 8621 to its Federal income tax return filed by 
the election due date for the shareholder's election year; and
    (iii) Receiving and reflecting in Form 8621 the information provided 
in the PFIC Annual Information Statement described in paragraph (g)(1) 
of this section, the Annual Intermediary Statement described in 
paragraph (g)(3) of this section, or the applicable combined statement 
described in paragraph (g)(4) of this section, for the taxable year of 
the PFIC ending with or within the taxable year for which Form 8621 is 
being filed. If the PFIC Annual Information Statement contains a

[[Page 692]]

statement described in paragraph (g)(1)(ii)(C) of this section, the 
shareholder must attach a statement to Form 8621 that indicates that the 
shareholder rather than the PFIC calculated the PFIC's ordinary earnings 
and net capital gain.
    (2) Annual election requirements--(i) In general. A shareholder that 
makes a section 1295 election with respect to a PFIC held directly or 
indirectly, for each taxable year to which the section 1295 election 
applies, must--
    (A) Complete Form 8621 in the manner required by that form and this 
section;
    (B) Attach Form 8621 to its Federal income tax return filed by the 
due date of the return, as extended; and
    (C) Receive and reflect in Form 8621 the PFIC Annual Information 
Statement described in paragraph (g)(1) of this section, the Annual 
Intermediary Statement described in paragraph (g)(3) of this section, or 
the applicable combined statement described in paragraph (g)(4) of this 
section, for the MTtaxable year of the PFIC ending with or within the 
taxable year for which Form 8621 is being filed. If the PFIC Annual 
Information Statement contains a statement described in paragraph 
(g)(1)(ii)(C) of this section, the shareholder must attach a statement 
to its Form 8621 that the shareholder rather than the PFIC provided the 
calculations of the PFIC's ordinary earnings and net capital gain.
    (ii) Retention of documents. For all taxable years subject to the 
section 1295 election, the shareholder must retain copies of all Forms 
8621, with their attachments, and PFIC Annual Information Statements or 
Annual Intermediary Statements. Failure to produce those documents at 
the request of the Commissioner in connection with an examination may 
result in invalidation or termination of the shareholder's section 1295 
election.
    (3) Effective date. See paragraph (k) of this section for special 
applicability date of paragraph (f) of this section.
    (g) Annual election requirements of the PFIC or intermediary--(1) 
PFIC Annual Information Statement. For each year of the PFIC ending in a 
taxable year of a shareholder to which the shareholder's section 1295 
election applies, the PFIC must provide the shareholder with a PFIC 
Annual Information Statement. The PFIC Annual Information Statement is a 
statement of the PFIC, signed by the PFIC or an authorized 
representative of the PFIC, that contains the following information and 
representations--
    (i) The first and last days of the taxable year of the PFIC to which 
the PFIC Annual Information Statement applies;
    (ii) Either--
    (A) The shareholder's pro rata shares of the ordinary earnings and 
net capital gain (as defined in Sec.  1.1295-1(a)(2)) of the PFIC for 
the taxable year indicated in paragraph (g)(1)(i) of this section; or
    (B) Sufficient information to enable the shareholder to calculate 
its pro rata shares of the PFIC's ordinary earnings and net capital 
gain, for that taxable year; or
    (C) A statement that the foreign corporation has permitted the 
shareholder to examine the books of account, records, and other 
documents of the foreign corporation for the shareholder to calculate 
the amounts of the PFIC's ordinary earnings and the net capital gain 
according to Federal income tax accounting principles and to calculate 
the shareholder's pro rata shares of the PFIC's ordinary earnings and 
net capital gain;
    (iii) The amount of cash and the fair market value of other property 
distributed or deemed distributed to the shareholder during the taxable 
year of the PFIC to which the PFIC Annual Information Statement 
pertains; and
    (iv) Either--
    (A) A statement that the PFIC will permit the shareholder to inspect 
and copy the PFIC's permanent books of account, records, and such other 
documents as may be maintained by the PFIC to establish that the PFIC's 
ordinary earnings and net capital gain are computed in accordance with 
U.S. income tax principles, and to verify these amounts and the 
shareholder's pro rata shares thereof; or
    (B) In lieu of the statement required in paragraph (g)(1)(iv)(A) of 
this section, a description of the alternative documentation 
requirements approved by the Commissioner, with a copy of

[[Page 693]]

the private letter ruling and the closing agreement entered into by the 
Commissioner and the PFIC pursuant to paragraph (g)(2) of this section.
    (2) Alternative documentation. In rare and unusual circumstances, 
the Commissioner will consider alternative documentation requirements 
necessary to verify the ordinary earnings and net capital gain of a PFIC 
other than the documentation requirements described in paragraph 
(g)(1)(iv)(A) of this section. Alternative documentation requirements 
will be allowed only pursuant to a private letter ruling and a closing 
agreement entered into by the Commissioner and the PFIC describing an 
alternative method of verifying the PFIC's ordinary earnings and net 
capital gain. If the PFIC has not obtained a private letter ruling from 
the Commissioner approving an alternative method of verifying the PFIC's 
ordinary earnings and net capital gain by the time a shareholder is 
required to make a section 1295 election, the shareholder may not use an 
alternative method for that taxable year.
    (3) Annual Intermediary Statement. In the case of a U.S. person that 
is an indirect shareholder of a PFIC that is owned through an 
intermediary, as defined in paragraph (j) of this section, an Annual 
Intermediary Statement issued by an intermediary containing the 
information described in paragraph (g)(1) of this section and reporting 
the indirect shareholder's pro rata share of the ordinary earnings and 
net capital gain of the QEF as described in paragraph (g)(1)(ii)(A) of 
this section, may be provided to the indirect shareholder in lieu of the 
PFIC Annual Information Statement if the following conditions are 
satisfied--
    (i) The intermediary receives a copy of the PFIC Annual Information 
Statement or the intermediary receives an annual intermediary statement 
from another intermediary which contains a statement that the other 
intermediary has received a copy of the PFIC Annual Information 
Statement and represents that the conditions of paragraphs (g)(3)(ii) 
and (g)(3)(iii) of this section are met;
    (ii) The representations and information contained in the Annual 
Intermediary Statement reflect the representations and information 
contained in the PFIC Annual Information Statement; and
    (iii) The PFIC Annual Information Statement issued to the 
intermediary contains either the representation set forth in paragraph 
(g)(1)(iv)(A) of this section, or, if alternative documentation 
requirements were approved by the Commissioner pursuant to paragraph 
(g)(2) of this section, a copy of the private letter ruling and closing 
agreement between the Commissioner and the PFIC, agreeing to an 
alternative method of verifying PFIC ordinary earnings and net capital 
gain as described in paragraph (g)(2) of this section;
    (4) Combined statements--(i) PFIC Annual Information Statement. A 
PFIC that owns directly or indirectly any stock of one or more PFICs 
with respect to which a shareholder may make the section 1295 election 
may prepare a PFIC Annual Information Statement that combines with its 
own information and representations the information and representations 
of all the PFICs. The PFIC may use any format for a combined PFIC Annual 
Information Statement provided the required information and 
representations are separately stated and identified with the respective 
corporations.
    (ii) Annual Intermediary Statement. An intermediary described in 
paragraph (g)(3) of this section that owns directly or indirectly stock 
of one or more PFICs with respect to which an indirect shareholder may 
make the section 1295 election may prepare an Annual Intermediary 
Statement that combines with its own information and representations the 
information and representations with respect to all the PFICs. The 
intermediary may use any format for a combined Annual Intermediary 
Statement provided the required information and representations are 
separately stated and identified with the intermediary and the 
respective corporations.
    (5) Effective date. See paragraph (k) of this section for special 
applicability date of paragraph (g) of this section.
    (h) Transition rules. Taxpayers may rely on Notice 88-125 (1988-2 
C.B. 535) (see Sec.  601.601(d)(2) of this chapter), for

[[Page 694]]

rules on making and maintaining elections for shareholder election years 
(as defined in paragraph (j) of this section) beginning after December 
31, 1986, and before January 1, 1998. Elections made under Notice 88-125 
must be maintained as provided in Sec.  1.1295-1 for taxable years 
beginning after December 31, 1997. A section 1295 election made prior to 
February 2, 1998 that was intended to be effective for the taxable year 
of the PFIC that began during the shareholder's election year will be 
effective for that taxable year of the foreign corporation provided that 
it is clear from all the facts and circumstances that the shareholder 
intended the election to be effective for that taxable year of the 
foreign corporation.
    (i) Invalidation, termination, or revocation of section 1295 
election--(1) Invalidation or termination of election at the discretion 
of the Commissioner--(i) In general. The Commissioner, in the 
Commissioner's discretion, may invalidate or terminate a section 1295 
election applicable to a shareholder if the shareholder, the PFIC, or 
any intermediary fails to satisfy the requirements for making a section 
1295 election or the annual election requirements of this section to 
which the shareholder, PFIC, or intermediary is subject, including the 
requirement to provide, on request, copies of the books and records of 
the PFIC or other documentation substantiating the ordinary earnings and 
net capital gain of the PFIC.
    (ii) Deferral of section 1293 inclusion. The Commissioner may 
invalidate any pass through entity section 1295 election with respect to 
an interest holder or beneficiary if the section 1293 inclusion with 
respect to that interest holder or beneficiary is not included in the 
gross income of either the pass through entity, an intermediate pass 
through entity, or the interest holder or beneficiary within two years 
of the end of the PFIC's taxable year due to nonconforming taxable years 
of the interest holder and the pass through entity or any intermediate 
pass through entity.
    (iii) When effective. Termination of a shareholder's section 1295 
election will be effective for the taxable year of the PFIC determined 
by the Commissioner in the Commissioner's discretion. An invalidation of 
a shareholder's section 1295 election will be effective for the first 
taxable year to which the section 1295 election applied, and the 
shareholder whose election is invalidated will be treated as if the 
section 1295 election was never made.
    (2) Shareholder revocation--(i) In general. In the Commissioner's 
discretion, upon a finding of a substantial change in circumstances, the 
Commissioner may consent to a shareholder's request to revoke a section 
1295 election. Request for revocation must be made by the shareholder 
that made the election and at the time and in the manner provided in 
paragraph (i)(2)(ii) of this section.
    (ii) Time for and manner of requesting consent to revoke--(A) Time. 
The shareholder must request consent to revoke the section 1295 election 
no later than 12 calendar months after the discovery of the substantial 
change of circumstances that forms the basis for the shareholder's 
request to revoke the section 1295 election.
    (B) Manner of making request. A shareholder requests consent to 
revoke a section 1295 election by filing a ruling request with the 
Office of the Associate Chief Counsel (International). The ruling 
request must satisfy the requirements, including payment of the user 
fee, for filing ruling requests with that office.
    (iii) When effective. Unless otherwise determined by the 
Commissioner, revocation of a section 1295 election will be effective 
for the first taxable year of the PFIC beginning after the date the 
Commissioner consents to the revocation.
    (3) Automatic termination. If a United States person, or the United 
States shareholder on behalf of a controlled foreign corporation, makes 
an election pursuant to section 1296 and the regulations thereunder with 
respect to PFIC stock for which a QEF election is in effect, or marks to 
market such stock under another provision of chapter 1 of the Internal 
Revenue Code, the QEF election is automatically terminated with respect 
to such stock that is marked to market under section 1296 or another 
provision of chapter 1 of the Internal Revenue Code. Such termination 
shall be effective on the last day

[[Page 695]]

of the shareholder's taxable year preceding the first taxable year for 
which the section 1296 election is in effect or such stock is marked to 
market under another provision of chapter 1 of the Internal Revenue 
Code.

    Example. Corp Y, a domestic corporation, owns directly 100 shares of 
marketable stock in foreign corporation FX, a PFIC. Corp Y also owns a 
50 percent interest in FP, a foreign partnership that owns 200 shares of 
FX stock. Accordingly, under section 1298(a)(3) and Sec.  1.1296-
1(e)(1), Corp Y is treated as indirectly owning 100 shares of FX stock. 
Corp Y also owns 100 percent of the stock of FZ, a foreign corporation 
that is not a PFIC. FZ owns 100 shares of FX stock, and therefore under 
section 1298(a)(2)(A), Corp Y is treated as owning the 100 shares of FX 
stock owned by FZ. For taxable year 2005, Corp Y has a QEF election in 
effect with respect to all 300 shares of FX stock that it owns directly 
or indirectly. See generally Sec.  1.1295-1(c)(1). For taxable year 
2006, Corp Y makes a timely election pursuant to section 1296 and the 
regulations thereunder. For purposes of section 1296, Corp Y is treated 
as owning stock held indirectly through a partnership, but not through a 
foreign corporation. Section 1296(g); Sec.  1.1296-1(e)(1). Accordingly, 
Corp Y's section 1296 election covers the 100 shares it owns directly 
and the 100 shares it owns indirectly through FP, but not the 100 shares 
owned by FZ. With respect to the first 200 shares, Corp Y's QEF election 
is automatically terminated effective December 31, 2005. With respect to 
the 100 shares Corp Y owns through foreign FZ, Corp Y's QEF election 
remains in effect unless invalidated, terminated, or revoked pursuant to 
this paragraph (i).
    (4) Effect of invalidation, termination, or revocation. An 
invalidation, termination, or revocation of a section 1295 election--
    (i) Terminates all section 1294 elections, as provided in Sec.  
1.1294-1T(e), and the undistributed PFIC earnings tax liability and 
interest thereon are due by the due date, without regard to extensions, 
for the return for the last taxable year of the shareholder to which the 
section 1295 election applies;
    (ii) In the Commissioner's discretion, results in a deemed sale of 
the QEF stock on the last day of the PFIC's last taxable year as a QEF, 
in which gain, but not loss, will be recognized and with respect to 
which appropriate basis and holding period adjustments will be made; and
    (iii) Subjects the shareholder to any other terms and conditions 
that the Commissioner determines are necessary to ensure the 
shareholder's compliance with sections 1291 through 1298 or any other 
provisions of the Code.
    (5) Effect after invalidation, termination, or revocation--(i) In 
general. Without the Commissioner's consent, a shareholder whose section 
1295 election was invalidated, terminated, or revoked under this 
paragraph (i) may not make the section 1295 election with respect to the 
PFIC before the sixth taxable year in which the invalidation, 
termination, or revocation became effective.
    (ii) Special rule. Notwithstanding paragraph (i)(5)(i) of this 
section, a shareholder whose section 1295 election was terminated 
pursuant to paragraph (i)(3) of this section, and either whose section 
1296 election has subsequently been terminated because its PFIC stock 
ceased to be marketable or who no longer marks to market such stock 
under another provision of chapter 1 of the Internal Revenue Code, may 
make a section 1295 election with respect to its PFIC stock before the 
sixth taxable year in which its prior section 1295 election was 
terminated.
    (j) Definitions. For purposes of this section--
    Intermediary is a nominee or shareholder of record that holds stock 
on behalf of the shareholder or on behalf of another person in a chain 
of ownership between the shareholder and the PFIC, and any direct or 
indirect beneficial owner of PFIC stock (including a beneficial owner 
that is a pass through entity) in the chain of ownership between the 
shareholder and the PFIC.
    Pass through entity is a partnership, S corporation, trust, or 
estate.
    Shareholder has the same meaning as the term shareholder in Sec.  
1.1291-9(j)(3), except that for purposes of this section, a partnership 
and an S corporation also are treated as shareholders. Furthermore, 
unless otherwise provided, an interest holder of a pass through entity, 
which is treated as a shareholder of a PFIC, also will be treated as a 
shareholder of the PFIC.
    Shareholder's election year is the taxable year of the shareholder 
for which it made the section 1295 election.
    (k) Effective dates. Except as otherwise provided, paragraphs 
(b)(2)(iii),

[[Page 696]]

(b)(3), (b)(4), and (c) through (j) of this section are applicable to 
taxable years of shareholders beginning after December 31, 1997. 
However, taxpayers may apply the rules under paragraphs (b)(4), (f) and 
(g) of this section to a taxable year beginning before January 1, 1998, 
provided the statute of limitations on the assessment of tax has not 
expired as of April 27, 1998, and, in the case of paragraph (b)(4) of 
this section, the taxpayers who filed the joint return have consistently 
applied the rules of that section to all taxable years following the 
year the election was made. Paragraph (b)(3)(v) of this section is 
applicable as of February 7, 2000, however, a taxpayer may apply the 
rules to a taxable year prior to the applicable date provided the 
statute of limitations on the assessment of tax for that taxable year 
has not expired. Paragraphs (i)(3) and (i)(5)(ii) of this section are 
applicable for taxable years beginning on or after May 3, 2004.

[T.D. 8750, 63 FR 15, Jan. 2, 1998. Redesignated and amended by T.D. 
8870, 65 FR 5779, 5781, Feb. 7, 2000; T.D. 9123, 69 FR 24073, May 3, 
2004]



Sec.  1.1295-3  Retroactive elections.

    (a) In general. This section prescribes the exclusive rules under 
which a shareholder, as defined in Sec.  1.1295-1(j), may make a section 
1295 election for a taxable year after the election due date, as defined 
in Sec.  1.1295-1(e) (retroactive election). Therefore, a shareholder 
may not seek such relief under any other provision of the law, including 
Sec.  301.9100 of this chapter. Paragraph (b) of this section describes 
the general rules for a shareholder to preserve the ability to make a 
retroactive election. These rules require that the shareholder possess 
reasonable belief as of the election due date that the foreign 
corporation was not a PFIC for its taxable year that ended in the 
shareholder's taxable year to which the election due date pertains, and 
that the shareholder file a Protective Statement to preserve its ability 
to make a retroactive election. Paragraph (c) of this section 
establishes the terms, conditions and other requirements with respect to 
a Protective Statement required to be filed under the general rules. 
Paragraph (d) of this section sets forth factors that establishes a 
shareholder's reasonable belief that a foreign corporation was not a 
PFIC. Paragraph (e) of this section prescribes special rules for certain 
shareholders that are deemed to satisfy the reasonable belief 
requirement and therefore are not required to file a Protective 
Statement. Paragraph (f) of this section describes the limited 
circumstances under which the Commissioner may permit a shareholder that 
lacked the requisite reasonable belief or failed to satisfy the 
requirements of paragraph (b) or (e) of this section to make a 
retroactive election. Paragraph (g) of this section provides the time 
for and manner of making a retroactive election. Paragraph (h) of this 
section provides the effective date of this section.
    (b) General rule. Except as provided in paragraphs (e) and (f) of 
this section, a shareholder may make a retroactive election for a 
taxable year of the shareholder (retroactive election year) only if the 
shareholder--
    (1) Reasonably believed, within the meaning of paragraph (d) of this 
section, that as of the election due date, as defined in Sec.  1.1295-
1(e), the foreign corporation was not a PFIC for its taxable year that 
ended during the retroactive election year;
    (2) Filed a Protective Statement with respect to the foreign 
corporation, applicable to the retroactive election year, in which the 
shareholder described the basis for its reasonable belief and extended, 
in the manner provided in paragraph (c)(4) of this section, the periods 
of limitations on the assessment of taxes determined under sections 1291 
and 1298 with respect to the foreign corporation (PFIC related taxes) 
for all taxable years of the shareholder to which the Protective 
Statement applies; and
    (3) Complied with the other terms and conditions of the Protective 
Statement.
    (c) Protective Statement--(1) In general. A Protective Statement is 
a statement executed under penalties of perjury by the shareholder, or a 
person authorized to sign a Federal income tax return on behalf of the 
shareholder, that preserves the shareholder's ability to make a 
retroactive election. To file a Protective Statement that applies to a

[[Page 697]]

taxable year of the shareholder, the shareholder must reasonably believe 
as of the election due date that the foreign corporation was not a PFIC 
for the foreign corporation's taxable year that ended during the 
retroactive election year. The Protective Statement must contain--
    (i) The shareholder's reasonable belief statement, as described in 
paragraph (c)(2) of this section;
    (ii) The shareholder's agreement extending the periods of 
limitations on the assessment of PFIC related taxes for all taxable 
years to which the Protective Statement applies, as provided in 
paragraph (c)(4) of this section; and
    (iii) The following information and representations--
    (A) The shareholder's name, address, taxpayer identification number, 
and the shareholder's first taxable year to which the Protective 
Statement applies;
    (B) The foreign corporation's name, address, and taxpayer 
identification number, if any; and
    (C) The highest percentage of shares of each class of stock of the 
foreign corporation held directly or indirectly by the shareholder 
during the shareholder's first taxable year to which the Protective 
Statement applies.
    (2) Reasonable belief statement. The Protective Statement must 
contain a reasonable belief statement, as described in paragraph (c)(1) 
of this section. The reasonable belief statement is a description of the 
shareholder's basis for its reasonable belief that the foreign 
corporation was not a PFIC for its taxable year that ended with or 
within the shareholder's first taxable year to which the Protective 
Statement applies. If the Protective Statement applies to a taxable year 
or years described in paragraph (c)(5)(ii) of this section, the 
reasonable belief statement must describe the shareholder's basis for 
its reasonable belief that the foreign corporation was not a PFIC for 
the foreign corporation's taxable year or years that ended in such 
taxable year or years of the shareholder. The reasonable belief 
statement must discuss the application of the income and asset tests to 
the foreign corporation and the factors, including those stated in 
paragraph (d) of this section, that affect the results of those tests.
    (3) Who executes and files the Protective Statement. The person that 
executes and files and Protective Statement is the person that makes the 
section 1295 election, as provided in Sec.  1.1295-1(d).
    (4) Waiver of the periods of limitations--(i) Time for and manner of 
extending periods of limitations. (A) In general. A shareholder that 
files the Protective Statement with the Commissioner must extend the 
periods of limitations on the assessment of all PFIC related taxes for 
all of the shareholder's taxable years to which the Protective Statement 
applies, as provided in this paragraph (c)(4). The shareholder is 
required to execute the waiver on such form as the Commission may 
prescribe for purposes of this paragraph (c)(4). Until that form is 
published, the shareholder must execute a statement in which the 
shareholder agrees to extend the periods of limitations on the 
assessment of all PFIC related taxes for all the shareholder's taxable 
years to which the Protective Statement applies, as provided in this 
paragraph (c)(4), and agrees to the restrictions in paragraph 
(c)(4)(ii)(A) of this section. The shareholder or a person authorized to 
sign the shareholder's Federal income tax return must sign the form or 
statement. A properly executed form or statement authorized by this 
paragraph (c)(4) will be deemed consented to and signed by a Service 
Center Director or the Assistant Commissioner (International) for 
purposes of Sec.  301.6501(c)-1(d) of this chapter.
    (B) Application of general rule to domestic partnerships-- (1) In 
general. A domestic partnership that holds an interest in stock of a 
PFIC satisfies the waiver requirement of paragraph (c)(4) of this 
section pursuant to the rules of this paragraph (c)(4)(i)(B)(1). The 
partnership must file one or more waivers obtained or arranged under 
this paragraph (c)(4)(i)(B) as part of the Protective Statement, as 
provided in paragraph (c)(1) of this section. The partnership must 
either--
    (i) Obtain from each partner the partner's waiver of the periods of 
limitations;
    (ii) Obtain from each partner a duly executed power of attorney 
under

[[Page 698]]

Sec.  601.501 of this chapter authorizing the partnership to extend that 
partner's periods of limitations, and execute a waiver on behalf of the 
partners; or
    (iii) In the case of a domestic partnership governed by the unified 
audit and litigation procedures of sections 6221 through 6233 (TEFRA 
partnership), arrange for the tax matters partner (or any other person 
authorized to enter into an agreement to extend the periods of 
limitations), as provided in section 6229(b), to execute a waiver on 
behalf of all the partners.
    (2) Special rules--(i) Addition of partner to non-TEFRA partnership. 
In the case of any individual who becomes a partner in a domestic 
partnership other than a TEFRA partnership (non-TEFRA partnership) in a 
taxable year subsequent to the year in which the partnership filed a 
Protective Statement, the partner and the partnership must comply with 
the rules applicable to non-TEFRA partnerships, as provided in paragraph 
(c)(4)(i)(B)(1) of this section, by the due date, as extended, for the 
Federal income tax return of the partnership for the taxable year during 
which the individual became a partner. Failure to so comply will render 
the Protective Statement invalid with respect to the partnership and 
partners.
    (ii) Change in status from non-TEFRA partnership to TEFRA 
partnership. If a partnership is a non-TEFRA partnership in one taxable 
year but becomes a TEFRA partnership in a subsequent taxable year, the 
partnership must file one or more waivers obtained or arranged under 
this paragraph (c)(4)(i)(B)(2)(ii), as part of the Protective Statement, 
as provided in paragraph (c)(1) of this section. The partnership must 
either--obtain from any new partner the partner's waiver described in 
this paragraph (c)(4); obtain from the new partner a duly executed power 
of attorney under Sec.  601.501 of this chapter authorizing the 
partnership to extend the partner's periods of limitations, and execute 
a waiver on behalf of the new partner; or arrange for the tax matters 
partner (or any other person authorized to enter into an agreement to 
extend the periods of limitations) to execute a waiver on behalf of all 
the partners. In each case, the partnership must attach any new waiver 
of a partner's periods of limitations, and a copy of the Protective 
Statement to its Federal income tax return for that taxable year.
    (C) Application of general rule to domestic nongrantor trusts and 
domestic estates. A domestic nongrantor trust or a domestic estate that 
holds an interest in stock of a PFIC satisfies the waiver requirement of 
this paragraph (c)(4) at the entity level. For this purpose, such entity 
must comply with rules similar to those applicable to non-TEFRA 
partnerships, as provided in paragraph (c)(4)(i)(B)(1) of this section.
    (D) Application of general rule to S corporations. An S corporation 
that holds an interest in stock of a PFIC satisfies the waiver 
requirement of this paragraph (c)(4) at the S corporation level. For 
this purpose, the S corporation must comply with rules similar to those 
applicable to non-TEFRA partnerships, as provided in paragraph 
(c)(4)(i)(B)(1) of this section. However, in the case of an S 
corporation that was governed by the unified audit corporate proceedings 
of sections 6241 through 6245 for any taxable year to which a Protective 
Statement applies (former TEFRA S corporation), the tax matters person 
(or any other person authorized to enter into such an agreement), as was 
provided in sections 6241 through 6245, may execute a waiver described 
in this paragraph (c)(4) that applies to such taxable year; for any 
other taxable year, the former TEFRA S corporation must comply with 
rules similar to those applicable to non-TEFRA partnerships.
    (E) Effect on waiver of complete termination of a pass through 
entity or pass through entity's business. The complete termination of a 
pass through entity described in paragraphs (c)(4)(i) (B) through (D) of 
this section, or a pass through entity's trade or business, will not 
terminate a waiver that applies to a partner, shareholder, or 
beneficiary.
    (F) Application of general rule to foreign partnerships, foreign 
trusts, domestic or foreign grantor trusts, and foreign estates. A U.S. 
person that is a partner or beneficiary of a foreign partnership, 
foreign trust, or foreign estate that holds an interest in stock of a 
PFIC satisfies the waiver requirement of this

[[Page 699]]

paragraph (c)(4) at the partner or beneficiary level. A U.S. person that 
is treated under sections 671 through 679 as the owner of the portion of 
a domestic or foreign trust that owns an interest in PFIC stock also 
satisfies the waiver requirement at the owner level. A waiver by a 
partner or beneficiary applies only to that partner or beneficiary, and 
is not affected by a complete termination of the entity or the entity's 
trade or business.
    (ii) Terms of waiver--(A) Scope of waiver. The waiver of the periods 
of limitations is limited to the assessment of PFIC related taxes. If 
the period of limitations for a taxable year affected by a retroactive 
election has expired with respect to the assessment of other non-PFIC 
related taxes, no adjustments, other than consequential changes, may be 
made by the Internal Revenue Service or by the shareholder to any other 
item of income, deduction, or credit for that year. If the period of 
limitations for refunds or credits for a taxable year affected by a 
retroactive election is open only by virtue of the assessment period 
extension and section 6511(c), no refund or credit is allowable on 
grounds other than adjustments to PFIC related taxes and consequential 
changes.
    (B) Period of Waiver. The extension of the periods of limitations on 
the assessment of PFIC related taxes will be effective for all of the 
shareholder's taxable years to which the Protective Statement applies. 
In addition, the waiver, to the extent it applies to the period of 
limitations for a particular year, will terminate with respect to that 
year no sooner than three years from the date on which the shareholder 
files an amended return, as provided in paragraph (g) of this section, 
for that year. For the suspension of the running of the period of 
limitations for the collection of taxes for which a shareholder has 
elected under section 1294 to extend the time for payment, as provided 
in paragraph (g)(3)(ii) of this section, see sections 6503(i) and 
6229(h).
    (5) Time of and manner for filing a Protective Statement--(i) In 
general. Except as provided in paragraph (c)(5)(ii) of this section, a 
Protective Statement must be attached to the shareholder's federal 
income tax return for the shareholder's first taxable year to which the 
Protective Statement will apply. The shareholder must file its return 
and the copy of the Protective Statement by the due date, as extended 
under section 6081, for the return.
    (ii) Special rule for taxable years ended before January 2, 1998. A 
shareholder may file a Protective Statement that applies to the 
shareholder's taxable year or years that ended before January 2, 1998, 
provided the period of limitations on the assessment of taxes for any 
such year has not expired (open year). The shareholder must file the 
Protective Statement applicable to such open year or years, as provided 
in paragraph (c)(5)(i) of this section, by the due date, as extended, 
for the shareholder's return for the first taxable year ending after 
January 2, 1998.
    (6) Applicability of the Protective Statement--(i) In general. 
Except as otherwise provided in this paragraph (c)(6), a Protective 
Statement applies to the shareholder's first taxable year for which the 
Protective Statement was filed and to each subsequent taxable year. The 
Protective Statement will not apply to any taxable year of the 
shareholder during which the shareholder does not own any stock of the 
foreign corporation or to any taxable year thereafter. Accordingly, if 
the shareholder has not made a retroactive election with respect to the 
previously owned stock by the time the shareholder reacquires stock of 
the foreign corporation, the shareholder must file another Protective 
Statement to preserve its right to make a retroactive election with 
respect to the later acquired stock. For the rule that provides that a 
section 1295 election made with respect to a foreign corporation applies 
to stock of that corporation acquired after a lapse in ownership, see 
Sec.  1.1295-1(c)(2)(iii).
    (ii) Invalidity of the Protective Statement. A shareholder will be 
treated as if it never filed a Protective Statement if--
    (A) The shareholder failed to make a retroactive election by the 
date prescribed for making the retroactive election in paragraph (g)(1) 
of this section; or
    (B) The waiver of the periods of limitations terminates (by reason 
of a

[[Page 700]]

court decision or other determination) with respect to any taxable year 
before the expiration of three years from the date of filing of an 
amended return for that year pursuant to paragraph (g) of this section.
    (7) Retention of Protective Statement and information demonstrating 
reasonable belief. A shareholder that files a Protective Statement must 
retain a copy of the Protective Statement and its attachments and must, 
for each taxable year of the shareholder to which the Protective 
Statement applies, retain information sufficient to demonstrate the 
shareholder's reasonable belief that the foreign corporation was not a 
PFIC for the taxable year of the foreign corporation ending during each 
such taxable year of the shareholder.
    (d) Reasonable belief--(1) In general. A foreign corporation is a 
PFIC for a taxable year if the foreign corporation satisfies either the 
income or asset test of section 1297(a). To determine whether a 
shareholder had reasonable belief that the foreign corporation is not a 
PFIC under section 1297(a), the shareholder must consider all relevant 
facts and circumstances. Reasonable belief may be based on a variety of 
factors, including reasonable asset valuations as well as reasonable 
interpretations of the applicable provisions of the Code, regulations, 
and administrative guidance regarding the direct and indirect ownership 
of the income or assets of the foreign corporation, the proper character 
of that income or those assets, and similar issues. Reasonable belief 
may be based on reasonable predictions regarding income to be earned and 
assets to be owned in subsequent years where qualifications of the 
foreign corporation as a PFIC for the current taxable year will depend 
on the qualification of the corporation as a PFIC in a subsequent year. 
Reasonable belief may be based on an analysis of generally available 
financial information of the foreign corporation. To determine whether a 
shareholder had reasonable belief that the foreign corporation was not a 
PFIC, the Commissioner may consider the size of the shareholder's 
interest in the foreign corporation.
    (2) Knowledge of law required. Reasonable belief must be based on a 
good faith effort to apply the Code, regulations, and related 
administrative guidance. Any person's failure to know or apply these 
provisions will not form the basis of reasonable belief.
    (e) Special rules for qualified shareholders--(1) In general. A 
shareholder that is a qualified shareholder, as defined in paragraph 
(e)(2) of this section, for a taxable year of the shareholder is not 
required to satisfy the reasonable belief requirement of paragraph 
(b)(1) of this section or file a Protective Statement to preserve its 
ability to make a retroactive election with respect to such taxable 
year. Accordingly, a qualified shareholder may make a retroactive 
election for any open taxable year in the shareholder's holding period. 
The retroactive election will be treated as made in the earliest taxable 
year of the shareholder during which the foreign corporation qualified 
as a PFIC (including a taxable year ending prior to January 2, 1998) and 
the shareholder will be treated as a shareholder of a pedigreed QEF, as 
defined in Sec.  1.1291-9(j)(2)(ii), provided the shareholder--
    (i) Has been a qualified shareholder with respect to the foreign 
corporation for all taxable years of the shareholder included in the 
shareholder's holding period during which the foreign corporation was a 
PFIC, or in the case of taxable years ending before January 2, 1998, the 
shareholder satisfies the criteria of a qualified shareholder, for all 
such years; or
    (ii) Has been a qualified shareholder, or in the case of taxable 
years ending before January 2, 1998 satisfies the criteria of a 
qualified shareholder, for all taxable years in its holding period 
before it filed a Protective Statement, which Protective Statement is 
applicable to all subsequent years, beginning with the first taxable 
year in which the shareholder is not a qualified shareholder.
    (2) Qualified shareholder. A shareholder will be treated as a 
qualified shareholder for a taxable year if the shareholder did not file 
a Protective Statement applicable to an earlier taxable year included in 
the shareholder's holding period of the stock of the foreign corporation 
currently held and--
    (i) At all times during the taxable year the shareholder owned, 
within the

[[Page 701]]

meaning of section 958, directly, indirectly, or constructively, less 
than two percent of the vote and value of each class of stock of the 
foreign corporation; and
    (ii) With respect to the taxable year of the foreign corporation 
ending within the shareholder's taxable year, the foreign corporation or 
U.S. counsel for the foreign corporation indicated in a public filing, 
disclosure statement or other notice provided to U.S. persons that are 
shareholders of the foreign corporation (corporate filing) that the 
foreign corporation--
    (A) Reasonably believes that it is not or should not constitute a 
PFIC for the corporation's taxable year; or
    (B) Is unable to conclude that it is not or should not be a PFIC 
(due to certain asset valuation or interpretation issues, or because 
PFIC status will depend on the income or assets of the foreign 
corporation in the corporation's subsequent taxable years) but 
reasonably believes that, more likely than not, it ultimately will not 
be a PFIC.
    (3) Exceptions. Notwithstanding paragraph (e)(2)(ii) of this 
section, a shareholder will not be treated as a qualified shareholder 
for a taxable year of the shareholder if the shareholder knew or had 
reason to know that a corporate filing regarding the foreign 
corporation's PFIC status was inaccurate, or knew that the foreign 
corporation was a PFIC for the taxable year of the foreign corporation 
ending with or within such taxable year of the shareholder. For purposes 
of this paragraph, a shareholder will be treated as knowing that a 
foreign corporation was a PFIC if the principal activity of the foreign 
corporation, directly or indirectly, is owning or trading a diversified 
portfolio of stock, securities, or other financial contracts.
    (f) Special consent--(1) In general. A shareholder that has not 
satisfied the requirements of paragraph (b) or (e) of this section may 
request the consent of the Commissioner to make a retroactive election 
for a taxable year of the shareholder provided the shareholder satisfies 
the requirements set forth in this paragraph (f). The Commissioner will 
grant relief under this paragraph (f) only if--
    (i) The shareholder reasonably relied on a qualified tax 
professional, within the meaning of paragraph (f)(2) of this section;
    (ii) Granting consent will not prejudice the interests of the United 
States government, as provided in paragraph (f)(3) of this section;
    (iii) The shareholder requests consent under paragraph (f) of this 
section before a representative of the Internal Revenue Service raises 
upon audit the PFIC status of the corporation for any taxable year of 
the shareholder; and
    (iv) The shareholder satisfies the procedural requirements set forth 
in paragraph (f)(4) of this section.
    (2) Reasonable reliance on a qualified tax professional--(i) In 
general. Except as provided in paragraph (f)(2)(ii) of this section, a 
shareholder is deemed to have reasonably relied on a qualified tax 
professional only if the shareholder reasonably relied on a qualified 
tax professional (including a tax professional employed by the 
shareholder) who failed to identify the foreign corporation as a PFIC or 
failed to advise the shareholder of the consequences of making, or 
failing to make, the section 1295 election. A shareholder will not be 
considered to have reasonably relied on a qualified tax professional if 
the shareholder knew, or reasonably should have known, that the foreign 
corporation was a PFIC and of the availability of a section 1295 
election, or knew or reasonably should have known that the qualified tax 
professional--
    (A) Was not competent to render tax advice with respect to the 
ownership of shares of a foreign corporation; or
    (B) Did not have access to all relevant facts and circumstances.
    (ii) Shareholder deemed to have not reasonably relied on a qualified 
tax professional. For purposes of this paragraph (f)(2), a shareholder 
is deemed to have not reasonably relied on a qualified tax professional 
if the shareholder was informed by the qualified tax professional that 
the foreign corporation was a PFIC and of the availability of the 
section 1295 election and related tax consequences, but either chose not 
to make the section 1295 election or was unable to make a valid section 
1295 election.

[[Page 702]]

    (3) Prejudice to the interests of the United States government--(1) 
General rule. Except as otherwise provided in paragraph (f)(3)(ii) of 
this section, the Commissioner will not grant consent under paragraph 
(f) of this section if doing so would prejudice the interests of the 
United States government. The interests of the United States government 
are prejudiced if granting relief would result in the shareholder having 
a lower tax liability, taking into account applicable interest charges, 
in the aggregate for all years affected by the retroactive election 
(other than by a de minimis amount) than the shareholder would have had 
if the shareholder had made the section 1295 election by the election 
due date. The time value of money is taken into account for purposes of 
this computation.
    (ii) Elimination of prejudice to the interests of the United States 
government. Notwithstanding the general rule of paragraph (f)(3)(i) of 
this section, if granting relief would prejudice the interests of the 
United States government, the Commissioner may, in the Commissioner's 
sole discretion, grant consent to make the election provided the 
shareholder enters into a closing agreement with the Commissioner that 
requires the shareholder to pay an amount sufficient to eliminate any 
prejudice to the United States government as a consequence of the 
shareholder's inability to file amended returns for closed taxable 
years.
    (4) Procedural requirements--(i) Filing instructions. A shareholder 
requests consent under paragraph (f) of this section to make a 
retroactive election by filing with the Office of the Associate Chief 
Counsel (International) a ruling request that includes the affidavits 
required by this paragraph (f)(4). The ruling request must satisfy the 
requirements, including payment of the user fee, for ruling requests 
filed with that office.
    (ii) Affidavit from shareholder. The shareholder, or a person 
authorized to sign a Federal income tax return on behalf of the 
shareholder, must submit a detailed affidavit describing the events that 
led to the failure to make a section 1295 election by the election due 
date, and to the discovery thereof. The shareholder's affidavit must 
describe the engagement and responsibilities of the qualified tax 
professional as well as the extent to which the shareholder relied on 
the tax professional. The shareholder must sign the affidavit under 
penalties of perjury. An individual who signs for an entity must have 
personal knowledge of the facts and circumstances at issue.
    (iii) Affidavits from other persons. The shareholder must submit 
detailed affidavits from individuals having knowledge or information 
about the events that led to the failure to make a section 1295 election 
by the election due date, and to the discovery thereof. These 
individuals must include the qualified tax professional upon whose 
advice the shareholder relied, as well as any individual (including an 
employee of the shareholder) who made a substantial contribution to the 
return's preparation, and any accountant or attorney, knowledgeable in 
tax matters, who advised the shareholder with regard to its ownership of 
the stock of the foreign corporation. Each affidavit must describe the 
individual's engagement and responsibilities as well as the advice 
concerning the tax treatment of the foreign corporation that that 
individual provided to the shareholder. Each affidavit also must include 
the individual's name, address, and taxpayer identification number, and 
must be signed by the individual under penalties of perjury.
    (iv) Other information. In connection with a request for consent 
under this paragraph (f), a shareholder must provide any additional 
information requested by the Commissioner.
    (v) Notification of Internal Revenue Service. The shareholder must 
notify the branch of the Associate Chief Counsel (International) 
considering the request for relief under this paragraph (f) if, while 
the shareholder's request for consent is pending, the Internal Revenue 
Service begins an examination of the shareholder's return for the 
retroactive election year or for any subsequent taxable year during 
which the shareholder holds stock of the foreign corporation.
    (vi) Who requests special consent under this paragraph (f) and who 
enters into a closing agreement. The person that requests consent under 
this paragraph (f)

[[Page 703]]

is the person that makes the section 1295 election, as provided in Sec.  
1.1295-1(d). If a shareholder is required to enter into a closing 
agreement with the Commissioner, as described in paragraph (f)(3)(ii) of 
this section, rules similar to those under paragraphs (c)(4)(i) (B) 
through (E) of this section apply for purposes of determining the person 
that enters into the closing agreement.
    (g) Time for and manner of making a retroactive election--(1) Time 
for making a retroactive election--(i) In general. Except as otherwise 
provided in paragraph (g)(1)(ii) of this section, a shareholder must 
make a retroactive election, in the manner provided in paragraph (g)(2) 
of this section, on or before the due date, as extended, for the 
shareholder's return--
    (A) In the case of a shareholder that makes a retroactive election 
pursuant to paragraph (b) or (e) of this section, for the taxable year 
in which the shareholder determines or reasonably should have determined 
that the foreign corporation was a PFIC; or
    (B) In the case of a shareholder that obtains the consent of the 
Commissioner pursuant to paragraph (f) of this section for the taxable 
year in which such consent is granted.
    (ii) Transition rule. A shareholder that files a Protective 
Statement for a taxable year described in paragraph (c)(5)(ii) of this 
section may make a retroactive election by the due date, as extended, 
for the return for the first taxable year ended after January 2, 1998 
even if the shareholder determined or should have determined that the 
foreign corporation was a PFIC for a year described in paragraph 
(c)(5)(ii) of this section at any time on or before January 2, 1998.
    (iii) Ownership not required at time retroactive election is made. 
The shareholder need not own shares of the foreign corporation at the 
time the shareholder makes a retroactive election with respect to the 
foreign corporation.
    (2) Manner of making a retroactive election. A shareholder that has 
satisfied the requirements of paragraph (b) or (e) of this section, or a 
shareholder that has been granted consent under paragraph (f) of this 
section, must make a retroactive election in the manner provided in Form 
8621 for making a section 1295 election, and must attach Form 8621 to an 
amended return for the later of the retroactive election year or the 
earliest open taxable year of the shareholder. The shareholder also must 
file an amended return for each of its subsequent taxable years affected 
by the retroactive election. In each amended return the shareholder must 
redetermine its income tax liability for that year to take into account 
the assessment of PFIC related taxes. If the period of limitations for 
the assessment of taxes for a taxable year affected by the retroactive 
election has expired except to the extent the waiver of limitations, 
described in paragraph (c)(4) of this section, has extended such period, 
no adjustments, other than consequential changes, may be made to any 
other items of income, deduction, or credit in that year. In addition, 
the shareholder must pay all taxes and interest owing by reason of the 
PFIC and QEF status of the foreign corporation in those years (except to 
the extent a section 1294 election extends the time to pay the taxes and 
interest). A shareholder that filed a Protective Statement must attach 
to Form 8621 filed with each amended return a representation that the 
shareholder, until the taxable year in which it determined or reasonably 
should have determined that the foreign corporation was a PFIC, 
reasonably believed, within the meaning of paragraph (d) of this 
section, that the foreign corporation was not a PFIC in the taxable year 
for which the amended return is filed, and in all other taxable years to 
which the Protective Statement applies. A shareholder that entered into 
a closing agreement must comply with the terms of that agreement, as 
provided in paragraph (f)(3)(ii) of this section, to eliminate any 
prejudice to the United States government's interests, as described in 
paragraph (f)(3) of this section.
    (3) Who makes the retroactive election. The person that makes the 
retroactive election is the person that makes the section 1295 election, 
as provided in Sec.  1.1295-1(d). A partner, shareholder, or beneficiary 
for which a pass through entity, as described in paragraphs (c)(4)(i) 
(B) through (D) of this section, filed a Protective Statement may

[[Page 704]]

make a retroactive election, if the pass through entity completely 
terminates its business or otherwise ceases to exist.
    (4) Other elections--(i) Section 1291(d)(2) election. If the foreign 
corporation for which the shareholder makes a retroactive election will 
be treated as an unpedigreed QEF, as defined in Sec.  1.1291-
9(j)(2)(iii), with respect to the shareholder, the shareholder may make 
an election under section 1291(d)(2) to purge its holding period of the 
years or parts of years before the effective date of the retroactive 
election. If the qualification date, within the meaning of Sec.  1.1291-
9(e) or 1.1291-10(e), falls in a taxable year for which the period of 
limitations has expired, the shareholder may treat the first day of the 
retroactive election year as the qualification date. The shareholder may 
make a section 1291(d)(2) election at the time that it makes the 
retroactive election, but no later than two years after the date that 
the amended return in which the retroactive election is made is filed. 
For the requirements for making a section 1291(d)(2) election, see 
Sec. Sec.  1.1291-9 and 1.1291-10.
    (ii) Section 1294 election. A shareholder may make an election under 
section 1294 to extend the time for payment of tax on the shareholder's 
pro rata shares of the ordinary earnings and net capital gain of the 
foreign corporation reported in the shareholder's amended return, and 
section 6621 interest attributable to such tax, but only to the extent 
the tax and interest are attributable to earnings that have not been 
distributed to the shareholder. The shareholder must make a section 1294 
election for a taxable year at the time that it files its amended return 
for that year, as provided in paragraph (g)(1) of this section. For the 
requirements for making a section 1294 election, see Sec.  1.1294-1T.
    (h) Effective date. The rules of this section are effective as of 
January 2, 1998.

[T.D. 8750, 63 FR 19, Jan. 2, 1998. Redesignated and amended by T.D. 
8870, 65 FR 5781, Feb. 7, 2000]



Sec.  1.1296-1  Mark to market election for marketable stock.

    (a) Definitions--(1) Eligible RIC. An eligible RIC is a regulated 
investment company that offers for sale, or has outstanding, any stock 
of which it is the issuer and which is redeemable at net asset value, or 
that publishes net asset valuations at least annually.
    (2) Section 1296 stock. The term section 1296 stock means marketable 
stock in a passive foreign investment company (PFIC), including any PFIC 
stock owned directly or indirectly by an eligible RIC, for which there 
is a valid section 1296 election. Section 1296 stock does not include 
stock of a foreign corporation that previously had been a PFIC, and for 
which a section 1296 election remains in effect.
    (3) Unreversed inclusions--(i) General rule. The term unreversed 
inclusions means with respect to any section 1296 stock, the excess, if 
any, of--
    (A) The amount of mark to market gain included in gross income of 
the United States person under paragraph (c)(1) of this section with 
respect to such stock for prior taxable years; over
    (B) The amount allowed as a deduction to the United States person 
under paragraph (c)(3) of this section with respect to such stock for 
prior taxable years.
    (ii) Section 1291 adjustment. The amount referred to in paragraph 
(a)(3)(i)(A) of this section shall include any amount subject to section 
1291 under the coordination rule of paragraph (i)(2)(ii) of this 
section.
    (iii) Example. An example of the computation of unreversed 
inclusions is as follows:

    Example. A, a United States person, acquired stock in Corp X, a 
foreign corporation, on January 1, 2005 for $150. At such time and at 
all times thereafter, Corp X was a PFIC and A's stock in Corp X was 
marketable. For taxable years 2005 and 2006, Corp X was a nonqualified 
fund subject to taxation under section 1291. A made a timely section 
1296 election with respect to the X stock, effective for taxable year 
2007. The fair market value of the X stock was $200 as of December 31, 
2006, and $240 as of December 31, 2007. Additionally, Corp X made no 
distribution with respect to its stock for the taxable years at issue. 
In 2007, pursuant to paragraph (i)(2)(ii) of this section, A must 
include the $90 gain in the X stock in accordance with the rules

[[Page 705]]

of section 1291 for purposes of determining the deferred tax amount and 
any applicable interest. Nonetheless, for purposes of determining the 
amount of the unreversed inclusions pursuant to paragraph (a)(3)(ii) of 
this section, A will include the $90 of gain that was taxed under 
section 1291 and not the interest thereon.

    (iv) Special rule for regulated investment companies. In the case of 
a regulated investment company which had elected to mark to market the 
PFIC stock held by such company as of the last day of the taxable year 
preceding such company's first taxable year for which such company makes 
a section 1296 election, the amount referred to in paragraph 
(a)(3)(i)(A) of this section shall include amounts previously included 
in gross income by the company pursuant to such mark to market election 
with respect to such stock for prior taxable years. For further 
guidance, see Notice 92-53 (1992-2 C.B. 384) (see also 601.601(d)(2) of 
this chapter).
    (b) Application of section 1296 election--(1) In general. Any United 
States person and any controlled foreign corporation (CFC) that owns 
directly, or is treated as owning under this section, marketable stock, 
as defined in Sec.  1.1296-2, in a PFIC may make an election to mark to 
market such stock in accordance with the provisions of section 1296 and 
this section.
    (2) Election applicable to specific United States person. A section 
1296 election applies only to the United States person (or CFC that is 
treated as a U.S. person under paragraph (g)(2) of this section) that 
makes the election. Accordingly, a United States person's section 1296 
election will not apply to a transferee of section 1296 stock.
    (3) Election applicable to specific corporation only. A section 1296 
election is made with respect to a single foreign corporation, and thus 
a separate section 1296 election must be made for each foreign 
corporation that otherwise meets the requirements of this section. A 
United States person's section 1296 election with respect to stock in a 
foreign corporation applies to all marketable stock of the corporation 
that the person owns directly, or is treated as owning under paragraph 
(e) of this section, at the time of the election or that is subsequently 
acquired.
    (c) Effect of election--(1) Recognition of gain. If the fair market 
value of section 1296 stock on the last day of the United States 
person's taxable year exceeds its adjusted basis, the United States 
person shall include in gross income for its taxable year the excess of 
the fair market value of such stock over its adjusted basis (mark to 
market gain).
    (2) Character of gain. Mark to market gain, and any gain on the sale 
or other disposition of section 1296 stock, shall be treated as ordinary 
income.
    (3) Recognition of loss. If the adjusted basis of section 1296 stock 
exceeds its fair market value on the last day of the United States 
person's taxable year, such person shall be allowed a deduction for such 
taxable year equal to the lesser of the amount of such excess or the 
unreversed inclusions with respect to such stock (mark to market loss).
    (4) Character of loss--(i) Losses not in excess of unreversed 
inclusions. Any mark to market loss allowed as a deduction under 
paragraph (c)(3) of this section, and any loss on the sale or other 
disposition of section 1296 stock, to the extent that such loss does not 
exceed the unreversed inclusions attributable to such stock, shall be 
treated as an ordinary loss, deductible in computing adjusted gross 
income.
    (ii) Losses in excess of unreversed inclusions. Any loss recognized 
on the sale or other disposition of section 1296 stock in excess of any 
prior unreversed inclusions will be subject to the rules generally 
applicable to losses provided elsewhere in the Internal Revenue Code and 
the regulations thereunder.
    (5) Application of election to separate lots of stock. In the case 
in which a United States person purchased or acquired shares of stock in 
a PFIC at different prices, the rules of this section shall be applied 
in a manner consistent with the rules of Sec.  1.1012-1.
    (6) Source rules. The source of any amount included in gross income 
under paragraph (c)(1) of this section, or the allocation and 
apportionment of any amount allowed as a deduction under paragraph 
(c)(3) of this section, shall be determined in the same manner as if 
such amounts were gain or loss (as the case may be) from the sale of 
stock in the PFIC.

[[Page 706]]

    (7) Examples. The following examples illustrate this paragraph (c):

    Example 1. Treatment of gain as ordinary income. A, a United States 
individual, purchases stock in FX, a foreign corporation that is not a 
PFIC, in 1990 for $1,000. On January 1, 2005, when the fair market value 
of the FX stock is $1,100, FX becomes a PFIC. A makes a timely section 
1296 election for taxable year 2005. On December 31, 2005, the fair 
market value of the FX stock is $1,200. For taxable year 2005, A 
includes $200 of mark to market gain (the excess of the fair market 
value of FX stock ($1,200) over A's adjusted basis ($1,000)) in gross 
income as ordinary income and pursuant to paragraph (d)(1) of this 
section increases his basis in the FX stock by that amount.
    Example 2. Treatment of gain as capital gain. The facts are the same 
as in Example 1. For taxable year 2006, FX does not satisfy either the 
asset test or the income test of section 1297(a). A does not revoke the 
section 1296 election it made with respect to the FX stock. On December 
1, 2006, A sells the FX stock when the fair market value of the stock is 
$1,500. For taxable year 2006, A includes $300 of gain (the excess of 
the fair market value of FX stock ($1,500) over A's adjusted basis 
($1,200)) in gross income as long-term capital gain because at the time 
of sale of the FX stock by A, FX did not qualify as a PFIC, and, 
therefore, the FX stock was not section 1296 stock at the time of the 
disposition. Further, A's holding period for non-PFIC purposes was more 
than one year.
    Example 3. Treatment of losses as ordinary where they do not exceed 
unreversed inclusions. The facts are the same as in Example 1. On 
December 1, 2006, A sells the stock in FX for $1,100. At that time, A's 
unreversed inclusions (the amount A included in income as mark to market 
gain) with respect to the stock in FX are $200. Accordingly, for taxable 
year 2006, A recognizes a loss on the sale of the FX stock of $100, (the 
fair market value of the FX stock ($1,100) minus A's adjusted basis 
($1,200) in the stock) that is treated as an ordinary loss because the 
loss does not exceed the unreversed inclusions attributable to the stock 
of FX.
    Example 4. Treatment of losses as long-term capital losses. The 
facts are the same as in Example 3, except that FX does not satisfy 
either the asset test or the income test of section 1297(a) for taxable 
year 2006. For taxable year 2006, A's $100 loss from the sale of the FX 
stock is treated as long-term capital loss because at the time of the 
sale of the FX stock by A FX did not qualify as a PFIC, and, therefore, 
the FX stock was not section 1296 stock at the time of the disposition. 
Further, A's holding period in the FX stock for non-PFIC purposes was 
more than one year.
    Example 5. Long-term capital loss treatment of losses in excess of 
unreversed inclusions. The facts are the same as in Example 3, except 
that A sells his FX stock for $900. At the time of A's sale of the FX 
stock on December 1, 2006, A's unreversed inclusions with respect to the 
FX stock are $200. Accordingly, the $300 loss recognized by A on the 
disposition is treated as an ordinary loss to the extent of his 
unreversed inclusions ($200). The amount of the loss in excess of A's 
unreversed inclusions ($100) will be treated as a long-term capital loss 
because A's holding period in the FC stock for non-PFIC purposes was 
more than one year.
    Example 6. Application of section 1296 election to separate lots of 
stock. On January 1, 2005, Corp A, a domestic corporation, purchased 100 
shares (first lot) of stock in FX, a PFIC, for $500 ($5 per share). On 
June 1, 2005, Corp A purchased 100 shares (second lot) of FX stock for 
$1,000 ($10 per share). Corp A made a timely section 1296 election with 
respect to its FX stock for taxable year 2005. On December 31, 2005, the 
fair market value of FX stock was $8 per share. For taxable year 2005, 
Corp A includes $300 of gain in gross income as ordinary income under 
paragraph (c)(1) of this section with respect to the first lot, and 
adjusts its basis in that lot to $800 pursuant to paragraph (d)(1) of 
this section. With respect to the second lot, Corp A is not permitted to 
recognize a loss under paragraph (c)(3) of this section for taxable year 
2005. Although Corp A's adjusted basis in that stock exceeds its fair 
market value by $200, Corp A has no unreversed inclusions with respect 
to that particular lot of stock. On July 1, 2006, Corp A sells 100 
shares of FX stock for $900. Assuming that Corp A adequately identifies 
(in accordance with the rules of Sec.  1.1012-1(c)) the shares of FX 
stock sold as being from the second lot, Corp A recognizes $100 of long 
term capital loss pursuant to paragraph (c)(4)(ii) of this section.

    (d) Adjustment to basis--(1) Stock held directly. The adjusted basis 
of the section 1296 stock shall be increased by the amount included in 
the gross income of the United States person under paragraph (c)(1) of 
this section with respect to such stock, and decreased by the amount 
allowed as a deduction to the United States person under paragraph 
(c)(3) of this section with respect to such stock.
    (2) Stock owned through certain foreign entities. (i) In the case of 
section 1296 stock that a United States person is treated as owning 
through certain foreign entities pursuant to paragraph (e) of this 
section, the basis adjustments under paragraph (d)(1) of this section 
shall apply to such stock in the hands

[[Page 707]]

of the foreign entity actually holding such stock, but only for purposes 
of determining the subsequent treatment under chapter 1 of the Internal 
Revenue Code of the United States person with respect to such stock. 
Such increase or decrease in the adjusted basis of the section 1296 
stock shall constitute an adjustment to the basis of partnership 
property only with respect to the partner making the section 1296 
election. Corresponding adjustments shall be made to the adjusted basis 
of the United States person's interest in the foreign entity and in any 
intermediary entity described in paragraph (e) of this section through 
which the United States person holds the PFIC stock.
    (ii) Example. The following example illustrates this paragraph 
(d)(2):

    Example. FP is a foreign partnership. Corp A, a domestic 
corporation, owns a 20 percent interest in FP. Corp B, a domestic 
corporation, owns a 30 percent interest in FP. Corp C, a foreign 
corporation, with no direct or indirect shareholders that are U.S. 
persons, owns a 50% interest in FP. Corp A, Corp B, and FP all use a 
calendar year for their taxable year. In 2005, FP purchases stock in FX, 
a foreign corporation and a PFIC, for $1,000. Corp A makes a timely 
section 1296 election for taxable year 2005. On December 31, 2005, the 
fair market value of the PFIC stock is $1,100. Corp A includes $20 of 
ordinary income in taxable year 2005 under paragraphs (c)(1) and (2) of 
this section. Corp A increases its basis in its FP partnership interest 
by $20. FP increases its basis in the FX stock to $1,020 solely for 
purposes of determining the subsequent treatment of Corp A, under 
chapter 1 of the Internal Revenue Code, with respect to such stock. In 
2006, FP sells the FX stock for $1,200. For purposes of determining the 
amount of gain of Corp A, FP will be treated as having $180 in gain of 
which $20 is allocated to Corp A. Corp A's $20 of gain will be treated 
as ordinary income under paragraph (c)(2) of this section. For purposes 
of determining the amount of gain attributable to Corp B, FP will be 
treated as having $200 gain, $60 of which will be allocated to Corp B.

    (3) Stock owned indirectly by an eligible RIC. Paragraph (d)(2) of 
this section shall also apply to an eligible RIC which is an indirect 
shareholder under Sec.  1.1296-2(f) of stock in a PFIC and has a valid 
section 1296 election in effect with respect to the PFIC stock.
    (4) Stock acquired from a decedent. In the case of stock of a PFIC 
that is acquired by bequest, devise, or inheritance (or by the 
decedent's estate) and with respect to which a section 1296 election was 
in effect as of the date of the decedent's death, notwithstanding 
section 1014 or section 1022, the basis of such stock in the hands of 
the person so acquiring it shall be the adjusted basis of such stock in 
the hands of the decedent immediately before his death (or, if lesser, 
the basis that would have been determined under section 1014 or section 
1022 without regard to this paragraph (d)).
    (5) Transition rule for individuals becoming subject to United 
States income taxation--(i) In general. If any individual becomes a 
United States person in a taxable year beginning after December 31, 
1997, solely for purposes of this section, the adjusted basis, before 
adjustments under this paragraph (d), of any section 1296 stock owned by 
such individual on the first day of such taxable year shall be treated 
as being the greater of its fair market value or its adjusted basis on 
such first day.
    (ii) An example of the transition rule for individuals becoming 
subject to United States income taxation is as follows:

    Example. A, a nonresident alien individual, purchases marketable 
stock in FX, a PFIC, for $50 in 1995. On January 1, 2005, A becomes a 
United States person and makes a timely section 1296 election with 
respect to the stock in accordance with paragraph (h) of this section. 
The fair market value of the FX stock on January 1, 2005, is $100. The 
fair market value of the FX stock on December 31, 2005, is $110. Under 
paragraph (d)(5)(i) of this section, A computes the amount of mark to 
market gain or loss for the FX stock in 2005 by reference to an adjusted 
basis of $100, and therefore A includes $10 in gross income as mark to 
market gain under paragraph (c)(1) of this section. Additionally, under 
paragraph (d)(1) of this section, A's adjusted basis in the FX stock for 
purposes of this section is increased to $110 (and to $60 for all other 
tax purposes). A sells the FX stock in 2006 for $120. For purposes of 
applying section 1001, A must use its original basis of $50, with any 
adjustments under paragraph (d)(1) of this section, $10 in this case, 
and therefore A recognizes $60 of gain. Under paragraph (c)(2) of this 
section (which is applied using an adjusted basis of $110), $10 of such 
gain is treated as ordinary income. The remaining $50 of gain from the 
sale of the FX stock is long term capital gain because A held such stock 
for more than one year.


[[Page 708]]


    (e) Stock owned through certain foreign entities--(1) In general. 
Except as provided in paragraph (e)(2) of this section, the following 
rules shall apply in determining stock ownership for purposes of this 
section. PFIC stock owned, directly or indirectly, by or for a foreign 
partnership, foreign trust (other than a foreign trust described in 
sections 671 through 679), or foreign estate shall be considered as 
being owned proportionately by its partners or beneficiaries. PFIC stock 
owned, directly or indirectly, by or for a foreign trust described in 
sections 671 through 679 shall be considered as being owned 
proportionately by its grantors or other persons treated as owners under 
sections 671 through 679 of any portion of the trust that includes the 
stock. The determination of a person's proportionate interest in a 
foreign partnership, foreign trust or foreign estate will be made on the 
basis of all the facts and circumstances. Stock considered owned by 
reason of this paragraph shall, for purposes of applying the rules of 
this section, be treated as actually owned by such person.
    (2) Stock owned indirectly by eligible RICs. The rules for 
attributing ownership of stock contained in Sec.  1.1296-2(f) will apply 
to determine the indirect ownership of PFIC stock by an eligible RIC.
    (f) Holding period. Solely for purposes of sections 1291 through 
1298, if section 1296 applied to stock with respect to the taxpayer for 
any prior taxable year, the taxpayer's holding period in such stock 
shall be treated as beginning on the first day of the first taxable year 
beginning after the last taxable year for which section 1296 so applied.
    (g) Special rules--(1) Certain dispositions of stock. To the extent 
a United States person is treated as actually owning stock in a PFIC 
under paragraph (e) of this section, any disposition which results in 
the United States person being treated as no longer owning such stock, 
and any disposition by the person owning such stock, shall be treated as 
a disposition by the United States person of the stock in the PFIC.
    (2) Treatment of CFC as a United States person. In the case of a CFC 
that owns, or is treated as owning under paragraph (e) of this section, 
section 1296 stock:
    (i) Other than with respect to the sourcing rules in paragraph 
(c)(6) of this section, this section shall apply to the CFC in the same 
manner as if such corporation were a United States person. The CFC will 
be treated as a foreign person for purposes of applying the source rules 
of paragraph (c)(6).
    (ii) For purposes of subpart F of part III of subchapter N of the 
Internal Revenue Code--
    (A) Amounts included in the CFC's gross income under paragraph 
(c)(1) or (i)(2)(ii) of this section shall be treated as foreign 
personal holding company income under section 954(c)(1)(A); and
    (B) Amounts allowed as a deduction under paragraph (c)(3) of this 
section shall be treated as a deduction allocable to foreign personal 
holding company income for purposes of computing net foreign base 
company income under Sec.  1.954-1(c).
    (iii) A United States shareholder, as defined in section 951(b), of 
the CFC shall not be subject to section 1291 with respect to any stock 
of the PFIC for the period during which the section 1296 election is in 
effect for that stock, and the holding period rule of paragraph (f) of 
this section shall apply to such United States shareholder.
    (iv) The rules of this paragraph (g)(2) shall not apply to a United 
States person that is a shareholder of the PFIC for purposes of section 
1291, but is not a United States shareholder under section 951(b) with 
respect to the CFC making a section 1296 election.
    (3) Timing of inclusions for stock owned through certain foreign 
entities. In the case of section 1296 stock that a United States person 
is treated as owning through certain foreign entities pursuant to 
paragraph (e) of this section, the mark to market gain or mark to market 
loss is determined in accordance with paragraphs (c) and (i)(2)(ii) of 
this section as of the last day of the taxable year of the foreign 
partnership, foreign trust or foreign estate and then included in the 
taxable year of such United States person that includes the last day of 
the taxable year of the entity.
    (h) Elections--(1) Timing and manner for making a section 1296 
election--(i)

[[Page 709]]

United States persons. A United States person that owns marketable stock 
in a PFIC, or is treated as owning marketable stock under paragraph (e) 
of this section, on the last day of the taxable year of such person, and 
that wants to make a section 1296 election, must make a section 1296 
election for such taxable year on or before the due date (including 
extensions) of the United States person's income tax return for that 
year. The section 1296 election must be made on the Form 8621, ``Return 
by a Shareholder of a Passive Foreign Investment Company or Qualified 
Electing Fund'', included with the original tax return of the United 
States person for that year, or on an amended return, provided that the 
amended return is filed on or before the election due date.
    (ii) Controlled foreign corporations. A section 1296 election by a 
CFC shall be made by its controlling United States shareholders, as 
defined in Sec.  1.964-1(c)(5), and shall be included with the Form 
5471, ``Information Return of U.S. Persons With Respect to Certain 
Foreign Corporations'', for that CFC by the due date (including 
extensions) of the original income tax returns of the controlling United 
States shareholders for that year. A section 1296 election by a CFC 
shall be binding on all United States shareholders of the CFC.
    (iii) Retroactive elections for PFIC stock held in prior years. A 
late section 1296 election may be permitted only in accordance with 
Sec.  301.9100 of this chapter.
    (2) Effect of section 1296 election--(i) A section 1296 election 
will apply to the taxable year for which such election is made and 
remain in effect for each succeeding taxable year unless such election 
is revoked or terminated pursuant to paragraph (h)(3) of this section.
    (ii) Cessation of a foreign corporation as a PFIC. A United States 
person will not include mark to market gain or loss pursuant to 
paragraph (c) of this section with respect to any stock of a foreign 
corporation for any taxable year that such foreign corporation is not a 
PFIC under section 1297 or treated as a PFIC under section 1298(b)(1) 
(taking into account the holding period rule of paragraph (f) of this 
section). Cessation of a foreign corporation's status as a PFIC will 
not, however, terminate a section 1296 election. Thus, if a foreign 
corporation is a PFIC in a taxable year after a year in which it is not 
treated as a PFIC, the United States person's original election (unless 
revoked or terminated in accordance with paragraph (h)(3) of this 
section) continues to apply and the shareholder must include any mark to 
market gain or loss in such year.
    (3) Revocation or termination of election--(i) In general. A United 
States person's section 1296 election is terminated if the section 1296 
stock ceases to be marketable; if the United States person elects, or is 
required, to mark to market the section 1296 stock under another 
provision of chapter 1 of the Internal Revenue Code; or if the 
Commissioner, in the Commissioner's discretion, consents to the United 
States person's request to revoke its section 1296 election upon a 
finding of a substantial change in circumstances. A substantial change 
in circumstances for this purpose may include a foreign corporation 
ceasing to be a PFIC.
    (ii) Timing of termination or revocation. Where a section 1296 
election is terminated automatically (e.g., the stock ceases to be 
marketable), section 1296 will cease to apply beginning with the taxable 
year in which such termination occurs. Where a section 1296 election is 
revoked with the consent of the Commissioner, section 1296 will cease to 
apply beginning with the first taxable year of the United States person 
after the revocation is granted unless otherwise provided by the 
Commissioner.
    (4) Examples. The operation of the rules of this paragraph (h) is 
illustrated by the following examples:

    Example 1. A, a United States person, owns stock in FX, a PFIC. A 
makes a QEF election in 1996 with respect to the FX stock. For taxable 
year 2005, A makes a timely section 1296 election with respect to its 
stock, and thus its QEF election is automatically terminated pursuant to 
Sec.  1.1295-1(i)(3). In 2006, A's stock in FX ceases to be marketable, 
and therefore its section 1296 election is automatically terminated 
under paragraph (h)(3) of this section. Beginning with taxable year 
2006, A is subject to the rules of section 1291 with respect to its FX 
stock unless it makes a new QEF election. See Sec.  1.1295-1(i)(5).
    Example 2. The facts are the same as in Example 1, except that A's 
stock in FX becomes marketable again in 2007. A may make a new

[[Page 710]]

section 1296 election with respect to the FX stock for its taxable year 
2007, or thereafter. A will be subject to the coordination rules under 
paragraph (i) of this section unless it made a new QEF election in 2006.

    (i) Coordination rules for first year of election--(1) In general. 
Notwithstanding any provision in this section to the contrary, the rules 
of this paragraph (i) shall apply to the first taxable year in which a 
section 1296 election is effective with respect to marketable stock of a 
PFIC if such foreign corporation was a PFIC for any taxable year, prior 
to such first taxable year, during the United States person's holding 
period (as defined in paragraph (f) of this section) in such stock, and 
for which such corporation was not treated as a QEF with respect to such 
United States person.
    (2) Shareholders other than regulated investment companies. For the 
first taxable year of a United States person (other than a regulated 
investment company) for which a section 1296 election is in effect with 
respect to the stock of a PFIC, such United States person shall, in lieu 
of the rules of paragraphs (c) and (d) of this section--
    (i) Apply the rules of section 1291 to any distributions with 
respect to, or disposition of, section 1296 stock;
    (ii) Apply section 1291 to the amount of the excess, if any, of the 
fair market value of such section 1296 stock on the last day of the 
United States person's taxable year over its adjusted basis, as if such 
amount were gain recognized from the disposition of stock on the last 
day of the taxpayer's taxable year; and
    (iii) Increase its adjusted basis in the section 1296 stock by the 
amount of excess, if any, subject to section 1291 under paragraph 
(i)(2)(ii) of this section.
    (3) Shareholders that are regulated investment companies. For the 
first taxable year of a regulated investment company for which a section 
1296 election is in effect with respect to the stock of a PFIC, such 
regulated investment company shall increase its tax under section 852 by 
the amount of interest that would have been imposed under section 
1291(c)(3) for such taxable year if such regulated investment company 
were subject to the rules of paragraph (i)(2) of this section, and not 
this paragraph (i)(3). No deduction or increase in basis shall be 
allowed for the increase in tax imposed under this paragraph (i)(3).
    (4) The operation of the rules of this paragraph (i) is illustrated 
by the following examples:

    Example (1). A, a United States person and a calendar year taxpayer, 
owns marketable stock in FX, a PFIC that it acquired on January 1, 1992. 
At all times, A's FX stock was a nonqualified fund subject to taxation 
under section 1291. A made a timely section 1296 election effective for 
taxable year 2005. At the close of taxable year 2005, the fair market 
value of A's FX stock exceeded its adjusted basis by $10. Pursuant to 
paragraph (i)(2)(ii) of this section, A must treat the $10 gain under 
section 1291 as if the FX stock were disposed of on December 31, 2005. 
Further, A increases its adjusted basis in the FX stock by the $10 in 
accordance with paragraph (i)(2)(iii) of this section.
    Example (2). Assume the same facts as in Example (1), except that A 
is a RIC that had not made an election prior to 2005 to mark to market 
the PFIC stock. In taxable year 2005, A includes $10 of ordinary income 
under paragraph (c)(1) of this section, and such amount is not subject 
to section 1291. A also increases its tax imposed under section 852 by 
the amount of interest that would have been determined under section 
1291(c)(3), and no deduction is permitted for such amount. Finally, 
under paragraph (d)(1) of this section, A increases its adjusted basis 
in the FX stock by $10.

    (j) Effective/applicability date. The provisions in this section are 
applicable for taxable years beginning on or after May 3, 2004. The 
provisions of paragraph (d)(4) of this section relating to section 1022 
are effective on and after January 19, 2017.

[T.D. 9123, 69 FR 24074, May 3, 2004, as amended by T.D. 9811, 82 FR 
6242, Jan. 19, 2017]



Sec.  1.1296-2  Definition of marketable stock.

    (a) General rule. For purposes of section 1296, the term marketable 
stock means--
    (1) Passive foreign investment company (PFIC) stock that is 
regularly traded, as defined in paragraph (b) of this section, on a 
qualified exchange or other market, as defined in paragraph (c) of this 
section;

[[Page 711]]

    (2) Stock in certain PFICs, as described in paragraph (d) of this 
section; and
    (3) Options on stock that is described in paragraph (a)(1) or (2) of 
this section, to the extent provided in paragraph (e) of this section.
    (b) Regularly traded--(1) General rule. For purposes of paragraph 
(a)(1) of this section, a class of stock that is traded on one or more 
qualified exchanges or other markets, as defined in paragraph (c) of 
this section, is regularly traded on such exchanges or markets for any 
calendar year during which such class of stock is traded, other than in 
de minimis quantities, on at least 15 days during each calendar quarter.
    (2) Special rule for year of initial public offering. For the 
calendar year in which a corporation initiates a public offering of a 
class of stock for trading on one or more qualified exchanges or other 
markets, as defined in paragraph (c) of this section, such class of 
stock meets the requirements of paragraph (b)(1) of this section for 
such year if the stock is regularly traded on such exchanges or markets, 
other than in de minimis quantities, on \1/6\ of the days remaining in 
the quarter in which the offering occurs, and on at least 15 days during 
each remaining quarter of the taxpayer's calendar year. In cases where a 
corporation initiates a public offering of a class of stock in the 
fourth quarter of the calendar year, such class of stock meets the 
requirements of paragraph (b)(1) of this section in the calendar year of 
the offering if the stock is regularly traded on such exchanges or 
markets, other than in de minimis quantities, on the greater of \1/6\ of 
the days remaining in the quarter in which the offering occurs, or 5 
days.
    (3) Anti-abuse rule. Trades that have as one of their principal 
purposes the meeting of the trading requirements of paragraph (b)(1) or 
(2) of this section shall be disregarded. Further, a class of stock 
shall not be treated as meeting the trading requirement of paragraph 
(b)(1) or (2) of this section if there is a pattern of trades conducted 
to meet the requirement of paragraph (b)(1) or (2) of this section. 
Similarly, paragraph (b)(2) of this section shall not apply to a public 
offering of stock that has as one of its principal purposes to avail 
itself of the reduced trading requirements under the special rule for 
the calendar year of an initial public offering. For purposes of 
applying the immediately preceding sentence, consideration will be given 
to whether the trading requirements of paragraph (b)(1) of this section 
are satisfied in the subsequent calendar year.
    (c) Qualified exchange or other market--(1) General rule. For 
purposes of paragraph (a)(1) of this section, the term qualified 
exchange or other market means, for any calendar year--
    (i) A national securities exchange that is registered with the 
Securities and Exchange Commission or the national market system 
established pursuant to section 11A of the Securities Exchange Act of 
1934 (15 U.S.C. 78f); or
    (ii) A foreign securities exchange that is regulated or supervised 
by a governmental authority of the country in which the market is 
located and which has the following characteristics--
    (A) The exchange has trading volume, listing, financial disclosure, 
surveillance, and other requirements designed to prevent fraudulent and 
manipulative acts and practices, to remove impediments to and perfect 
the mechanism of a free and open, fair and orderly, market, and to 
protect investors; and the laws of the country in which the exchange is 
located and the rules of the exchange ensure that such requirements are 
actually enforced; and
    (B) The rules of the exchange effectively promote active trading of 
listed stocks.
    (2) Exchange with multiple tiers. If an exchange in a foreign 
country has more than one tier or market level on which stock may be 
separately listed or traded, each such tier shall be treated as a 
separate exchange.
    (d) Stock in certain PFICs--(1) General rule. Except as provided in 
paragraph (d)(2) of this section, a foreign corporation is a corporation 
described in section 1296(e)(1)(B), and paragraph (a)(2) of this 
section, if the foreign corporation offers for sale or has outstanding 
stock of which it is the issuer and which is redeemable at its net asset 
value and if the foreign corporation

[[Page 712]]

satisfies the following conditions with respect to the class of shares 
held by the electing taxpayer--
    (i) At all times during the calendar year, the foreign corporation 
has more than one hundred shareholders with respect to the class, other 
than shareholders who are related under section 267(b);
    (ii) At all times during the calendar year, the class of shares of 
the foreign corporation is readily available for purchase by the general 
public at its net asset value and the foreign corporation does not 
require a minimum initial investment of greater than $10,000 (U.S.);
    (iii) At all times during the calendar year, quotations for the 
class of shares of the foreign corporation are determined and published 
no less frequently than on a weekly basis in a widely-available 
permanent medium not controlled by the issuer of the shares, such as a 
newspaper of general circulation or a trade publication;
    (iv) No less frequently than annually, independent auditors prepare 
financial statements of the foreign corporation that include balance 
sheets (statements of assets, liabilities, and net assets) and 
statements of income and expenses, and those statements are made 
available to the public;
    (v) The foreign corporation is supervised or regulated as an 
investment company by a foreign government or an agency or 
instrumentality thereof that has broad inspection and enforcement 
authority and effective oversight over investment companies;
    (vi) At all times during the calendar year, the foreign corporation 
has no senior securities authorized or outstanding, including any debt 
other than in de minimis amounts;
    (vii) Ninety percent or more of the gross income of the foreign 
corporation for its taxable year is passive income, as defined in 
section 1297(a)(1) and the regulations thereunder; and
    (viii) The average percentage of assets held by the foreign 
corporation during its taxable year which produce passive income or 
which are held for the production of passive income, as defined in 
section 1297(a)(2) and the regulations thereunder, is at least 90 
percent.
    (2) Anti-abuse rule. If a foreign corporation undertakes any actions 
that have as one of their principal purposes the manipulation of the net 
asset value of a class of its shares, for the calendar year in which the 
manipulation occurs, the shares are not marketable stock for purposes of 
paragraph (d)(1) of this section.
    (e) [Reserved]
    (f) Special rules for regulated investment companies (RICs)--(1) 
General rule. In the case of any RIC that is offering for sale, or has 
outstanding, any stock of which it is the issuer and which is redeemable 
at net asset value, if the RIC owns directly or indirectly, as defined 
in section 1298(a), stock in any passive foreign investment company, 
that stock will be treated as marketable stock owned by that RIC for 
purposes of section 1296. Except as provided in paragraph (f)(2) of this 
section, in the case of any other RIC that publishes net asset 
valuations at least annually, if the RIC owns directly or indirectly, as 
defined in section 1298(a), stock in any passive foreign investment 
company, that stock will be treated as marketable stock owned by that 
RIC for purposes of section 1296.
    (2) [Reserved]
    (g) Effective date. This section applies to shareholders whose 
taxable year ends on or after January 25, 2000 for stock in a foreign 
corporation whose taxable year ends with or within the shareholder's 
taxable year. In addition, shareholders may elect to apply these 
regulations to any taxable year beginning after December 31, 1997, for 
stock in a foreign corporation whose taxable year ends with or within 
the shareholder's taxable year.

[T.D. 8867, 65 FR 3819, Jan. 25, 2000. Redesignated and amended by T.D. 
9123, 69 FR 24073, May 3, 2004]



Sec.  1.1297-0  Table of contents.

    This section contains a listing of the headings for Sec. Sec.  
1.1297-1, 1.1297-2, 1.1297-3, 1.1297-4, 1.1297-5, and 1.1297-6.

    Sec.  1.1297-1 Definition of passive foreign investment company.

    (a) Overview.
    (b) Dividends included in gross income.
    (1) General rule.
    (2) Example.

[[Page 713]]

    (i) Facts.
    (ii) Results.
    (c) Passive income.
    (1) Foreign personal holding company income.
    (i) General rule.
    (ii) Determination of gross income or gain on a net basis for 
certain items of foreign personal holding company income.
    (iii) Amounts treated as dividends.
    (2) [Reserved]
    (3) Passive treatment of dividends and distributive share of 
partnership income.
    (4) Exception for certain interest, dividends, rents, and royalties 
received from a related person.
    (i) In general.
    (ii) Ordering rule.
    (iii) Allocation of interest.
    (iv) Allocation of dividends.
    (A) In general.
    (B) Dividends paid out of current earnings and profits.
    (C) Dividends paid out of accumulated earnings and profits.
    (v) Allocation of rents and royalties.
    (vi) Determination of whether amounts are received or accrued from a 
related person.
    (vii) Allocation of distributive share of income from related 
partnership.
    (d) Asset test.
    (1) Calculation of average annual value (or adjusted bases).
    (i) General rule.
    (ii) Measuring period.
    (A) General rule.
    (B) Election to use alternative measuring period.
    (C) Short taxable year.
    (iii) Adjusted basis election.
    (iv) Time and manner of elections and revocations.
    (A) Elections.
    (B) Revocations and subsequent elections.
    (v) Method of measuring assets.
    (A) Publicly traded foreign corporations.
    (B) Non-publicly traded controlled foreign corporation.
    (1) In general.
    (2) Controlled foreign corporation determination.
    (C) Other foreign corporations.
    (1) In general.
    (2) Lower-tier subsidiaries.
    (i) Lower-tier subsidiaries that are publicly traded foreign 
corporations.
    (ii) Lower-tier subsidiaries that are non-publicly traded controlled 
foreign corporations.
    (iii) Other lower-tier subsidiaries.
    (D) [Reserved]
    (E) Examples.
    (1) Example 1.
    (i) Facts.
    (ii) Results.
    (2) Example 2.
    (i) Facts.
    (ii) Results.
    (3) Example 3.
    (i) Facts.
    (ii) Results.
    (2) [Reserved]
    (3) Dual-character assets.
    (i) General rule.
    (ii) Special rule when only part of an asset produces income.
    (iii) Special rule for stock that previously produced income that 
was excluded from passive income under section 1297(b)(2)(C).
    (iv) Example.
    (A) Facts.
    (B) Results.
    (4) Passive treatment of stock and partnership interests.
    (5) Dealer property.
    (e) Stapled stock.
    (f) Definitions.
    (1) Measuring date.
    (2) Measuring period.
    (3) Non-passive asset.
    (4) Non-passive income.
    (5) Passive asset.
    (6) Passive income.
    (7) Publicly traded foreign corporation.
    (8) Related person.
    (9) Tested foreign corporation.
    (g) Applicability date.
    (1) In general.
    (2) Paragraph (d)(1)(v)(B)(2) of this section.

  Sec.  1.1297-2 Special rules regarding look-through subsidiaries and 
                       look-through partnerships.

    (a) Overview.
    (b) General rules.
    (1) Tested foreign corporation's ownership of a corporation.
    (2) Tested foreign corporation's proportionate share of the assets 
and income of a look-through subsidiary.
    (i) Proportionate share of subsidiary assets.
    (ii) Proportionate share of subsidiary income.
    (A) General rule.
    (B) Partial year.
    (iii) Coordination of section 1297(c) with section 1298(b)(7).
    (3) Tested foreign corporation's proportionate share of the assets 
and income of a look-through partnership.
    (i) Proportionate share of partnership assets.
    (ii) Proportionate share of partnership income.
    (A) General rule.
    (B) Partial year.
    (4) Examples.
    (i) Example 1.
    (A) Facts.
    (B) Results.
    (1) LTS.
    (2) TFC.
    (ii) Example 2.

[[Page 714]]

    (A) Facts.
    (B) Results.
    (iii) Example 3.
    (A) Facts.
    (B) Results.
    (c) Elimination of certain intercompany assets and income.
    (1) General rule for asset test.
    (i) LTS stock.
    (ii) LTS obligation.
    (2) General rule for income test.
    (i) LTS stock.
    (ii) LTS obligation.
    (3) Partnerships.
    (4) Examples.
    (i) Example 1.
    (A) Facts.
    (B) Results.
    (1) LTS.
    (2) TFC.
    (ii) Example 2.
    (A) Facts.
    (B) Results.
    (iii) Example 3.
    (A) Facts.
    (B) Results.
    (iv) Example 4.
    (A) Facts.
    (B) Results.
    (v) Example 5.
    (A) Facts.
    (B) Results.
    (1) Asset test.
    (2) Income test.
    (3) Treatment of intangible and rental property.
    (d) Related person determination for purposes of section 
1297(b)(2)(C).
    (1) General rule.
    (2) Example.
    (i) Facts.
    (ii) Results.
    (e) Treatment of activities of certain look-through subsidiaries and 
look-through partnerships for purposes of certain exceptions.
    (1) General rule.
    (2) Qualified affiliate.
    (3) Examples.
    (i) Example 1.
    (A) Facts.
    (B) Results.
    (1) Qualified affiliates.
    (2) FS1 and FS2.
    (3) FS4.
    (ii) Example 2.
    (A) Facts.
    (B) Results.
    (iii) Example 3.
    (A) Facts.
    (B) Results.
    (f) Gain on disposition of a look-through subsidiary or look-through 
partnership.
    (1) [Reserved]
    (2) Amount of gain taken into account from disposition of look-
through subsidiary.
    (3) Characterization of residual gain as passive income.
    (4) Gain taken into account from disposition of 25%-owned 
partnerships and look-through partnerships.
    (i) Section 954(c)(4) partnerships.
    (ii) Look-through partnerships.
    (5) Examples.
    (i) Example 1.
    (A) Facts.
    (B) Results.
    (ii) Example 2.
    (A) Facts.
    (B) Results.
    (iii) Example 3.
    (A) Facts.
    (B) Results.
    (g) Definitions.
    (1) Direct LTS obligation.
    (2) Indirect LTS obligation.
    (3) Look-through subsidiary.
    (4) Look-through partnership.
    (i) In general.
    (ii) Active partner test.
    (A) Partnership interest under asset test.
    (B) Partnership income under income test.
    (iii) Election.
    (iv) Examples.
    (A) Example 1.
    (1) Facts.
    (2) Results.
    (i) Active partner test with respect to partnership interest.
    (ii) Active partner test with respect to partnership income.
    (iii) Qualification of look-through partnership.
    (B) Example 2.
    (1) Facts.
    (2) Results.
    (i) Active partner test with respect to partnership interest.
    (ii) Active partner test with respect to partnership income.
    (iii) Failure to qualify as look-through partnership.
    (5) LTS debt.
    (6) LTS lease.
    (7) LTS license.
    (8) LTS obligation.
    (9) LTS stock.
    (10) Qualified affiliate.
    (11) Residual gain.
    (12) TFC obligation.
    (13) Unremitted earnings.
    (h) Applicability date.

Sec.  1.1297-3 Deemed sale or deemed dividend election by a U.S. person 
            that is a shareholder of a section 1297(e) PFIC.

    (a) In general.
    (b) Application of deemed sale election rules.
    (1) Eligibility to make the deemed sale election.
    (2) Effect of the deemed sale election.
    (3) Time for making the deemed sale election.

[[Page 715]]

    (4) Manner of making the deemed sale election.
    (5) Adjustments to basis.
    (6) Treatment of holding period.
    (c) Application of deemed dividend election rules.
    (1) Eligibility to make the deemed dividend election.
    (2) Effect of the deemed dividend election.
    (3) Post-1986 earnings and profits defined.
    (4) Time for making the deemed dividend election.
    (5) Manner of making the deemed dividend election.
    (6) Adjustments to basis.
    (7) Treatment of holding period.
    (8) Coordination with section 959(e).
    (d) CFC qualification date.
    (e) Late purging elections requiring special consent.
    (1) In general.
    (2) Prejudice to the interests of the U.S. government.
    (3) Procedural requirements.
    (4) Time and manner of making late election.
    (5) Multiple late elections.
    (f) Effective/applicability date.

            Sec.  1.1297-4 Qualifying insurance corporation.

    (a) Scope.
    (b) Qualifying insurance corporation.
    (c) 25 percent test.
    (d) Election to apply the alternative facts and circumstances test.
    (1) In general.
    (2) Predominantly engaged in an insurance business.
    (i) In general.
    (ii) Facts and circumstances.
    (iii) Examples of facts indicating a foreign corporation is not 
predominantly engaged in an insurance business.
    (3) Runoff-related circumstances.
    (4) Rating-related circumstances.
    (5) Election.
    (i) In general.
    (ii) Information provided by foreign corporation.
    (iii) Time and manner for making the election.
    (iv) Deemed election for small shareholders in publicly traded 
companies.
    (A) In general.
    (B) Publicly traded stock.
    (v) Options.
    (6) Stock ownership.
    (e) Rules limiting the amount of applicable insurance liabilities.
    (1) In general.
    (2) General limitation on applicable insurance liabilities.
    (3) Discounting.
    (4) [Reserved]
    (5) [Reserved]
    (f) Definitions.
    (1) Applicable financial statement.
    (i) GAAP statements.
    (ii) IFRS statements.
    (iii) Regulatory annual statement.
    (iv) [Reserved]
    (2) Applicable insurance liabilities.
    (i) In general.
    (ii) Amounts not specified in paragraph (f)(2)(i) of this section.
    (3) Applicable insurance regulatory body.
    (4) Applicable reporting period.
    (5) Financial guaranty insurance company.
    (6) Financial statements.
    (i) In general.
    (ii) [Reserved]
    (iii) [Reserved]
    (7) Generally accepted accounting principles or GAAP.
    (8) Insurance business.
    (9) International financial reporting standards or IFRS.
    (10) Mortgage insurance company.
    (11) Total assets.
    (g) Applicability date.

                        Sec.  1.1297-5 [Reserved]

   Sec.  1.1297-6 Exception from the definition of passive income for 
                        active insurance income.

    (a) Scope.
    (b) Exclusion from passive income of active insurance income.
    (c) Exclusion of assets for purposes of the passive asset test under 
section 1297(a)(2).
    (d) Treatment of income and assets of certain look-through 
subsidiaries and look through partnerships for purposes of the section 
1297(b)(2)(B) exception.
    (1) General rule.
    (2) Limitation.
    (3) Examples.
    (i) Example 1: QIC holds all the stock of an investment subsidiary.
    (A) Facts.
    (B) Result.
    (C) Alternative Facts.
    (1) Facts.
    (2) Result.
    (ii) Example 2: QIC holds all the stock of an operating subsidiary.
    (A) Facts.
    (B) Result.
    (e) Qualifying domestic insurance corporation.
    (1) General rule.
    (2) [Reserved]
    (3) [Reserved]
    (f) Applicability date.

[T.D. 9360, 72 FR 54821, Sept. 27, 2007, as amended by T.D. 9936, 86 FR 
4556, Jan. 15, 2021; T.D. 9936, 86 FR 13648, Mar. 10, 2021]



Sec.  1.1297-1  Definition of passive foreign investment company.

    (a) Overview. This section provides rules concerning the income test 
set

[[Page 716]]

forth in section 1297(a)(1) and the asset test set forth in section 
1297(a)(2). Paragraph (b) of this section provides a rule relating to 
the definition of gross income with respect to certain dividends that 
are excluded from gross income under section 1502 for purposes of 
section 1297. Paragraph (c) of this section provides rules relating to 
the definition of passive income for purposes of section 1297. Paragraph 
(d) of this section provides rules relating to the asset test of section 
1297. See Sec. Sec.  1.1297-2 and 1.1297-6 for additional rules 
concerning the treatment of the income and assets of a corporation 
subject to look-through treatment under section 1297(c). Paragraph (e) 
of this section provides rules relating to the determination of passive 
foreign investment company (PFIC) status for stapled entities. Paragraph 
(f) of this section provides definitions applicable for this section, 
and paragraph (g) of this section provides the applicability date of 
this section.
    (b) Dividends included in gross income--(1) General rule. For 
purposes of section 1297, gross income includes dividends that are 
excluded from gross income under section 1502 and Sec.  1.1502-13.
    (2) Example--(i) Facts. USP is a domestic corporation that owns 30% 
of TFC, a foreign corporation. The remaining 70% of TFC is owned by FP, 
a foreign corporation that is unrelated to USP. TFC owns 25% of the 
value of USS1, a domestic corporation. USS1 owns 80% of the value of 
USS2, a domestic corporation. USS1 and USS2 are members of an affiliated 
group (as defined in section 1504(a)) filing a consolidated return. USS2 
distributes a dividend to USS1 that is excluded from USS1's income 
pursuant to Sec.  1.1502-13 for purposes of determining the U.S. Federal 
income tax liability of the affiliated group of which USS1 and USS2 are 
members.
    (ii) Results. Although the dividend received by USS1 from USS2 is 
excluded from USS1's income for purposes of determining the U.S. Federal 
income tax liability of the affiliated group of which USS1 and USS2 are 
members, pursuant to paragraph (b)(1) of this section, for purposes of 
section 1297, USS1's gross income includes the USS2 dividend. 
Accordingly, for purposes of section 1297, TFC's gross income includes 
25% of the dividend received by USS1 from USS2 pursuant to section 
1297(c) and Sec.  1.1297-2(b)(2)(ii). See section 1298(b)(7) and Sec.  
1.1298-4 for rules concerning the characterization of the USS2 dividend.
    (c) Passive income--(1) Foreign personal holding company income--(i) 
General rule. For purposes of section 1297(b)(1), except as otherwise 
provided in section 1297(b)(2), this section, and Sec.  1.1297-6, the 
term passive income means income of a kind that would be foreign 
personal holding company income as defined under section 954(c). For the 
purpose of this paragraph (c)(1)--
    (A) The exceptions to foreign personal holding company income in 
section 954(c)(1), 954(c)(2)(A) (relating to active rents and 
royalties), 954(c)(2)(B) (relating to export financing income), and 
954(c)(2)(C) (relating to dealers) are taken into account;
    (B) The exceptions in section 954(c)(3) (relating to certain income 
received from related persons), 954(c)(6) (relating to certain amounts 
received from related controlled foreign corporations), and 954(i) 
(relating to entities engaged in the active conduct of an insurance 
business) are not taken into account;
    (C) The rules in section 954(c)(4) (relating to sales of certain 
partnership interests) and 954(c)(5) (relating to certain commodity 
hedging transactions) are taken into account; and
    (D) An entity is treated as a controlled foreign corporation within 
the meaning of section 957(a) for purposes of applying an exception to 
foreign personal holding company income in section 954(c)(1)(B)'s flush 
language, (1)(C)(ii), (1)(D), (4), and (5) and Sec.  1.954-2 and for 
purposes of identifying whether a person is a related person with 
respect to such entity within the meaning of section 954(d)(3).
    (ii) Determination of gross income or gain on a net basis for 
certain items of foreign personal holding company income. For purposes 
of section 1297, the excess of gains over losses from property 
transactions described in section 954(c)(1)(B), the excess of gains over 
losses from transactions in commodities described in section 
954(c)(1)(C),

[[Page 717]]

the excess of foreign currency gains over foreign currency losses 
described in section 954(c)(1)(D), and positive net income from notional 
principal contracts described in section 954(c)(1)(F) are taken into 
account as gross income. The excess of gains over losses (or, with 
respect to notional principal contracts, positive net income) for a 
category of transactions is calculated by a tested foreign corporation 
taking into account individual items of gain or loss (or, with respect 
to notional principal contracts, net income or net deduction) recognized 
by the tested foreign corporation and those items of gain or loss (or, 
with respect to notional principal contracts, net income or net 
deduction) treated as recognized by the tested foreign corporation with 
respect to its look-through subsidiaries and look-through partnerships 
pursuant to section 1297(c) and Sec.  1.1297-2(b)(2) or (3).
    (iii) Amounts treated as dividends. For purposes of section 1297, 
the term dividend includes all amounts treated as dividends for purposes 
of this chapter, including amounts treated as dividends pursuant to 
sections 302, 304, 356(a)(2), 964(e), and 1248.
    (2) [Reserved]
    (3) Passive treatment of dividends and distributive share of 
partnership income. For purposes of section 1297, a tested foreign 
corporation's share of dividends received from a corporation that is not 
a look-through subsidiary (as defined in Sec.  1.1297-2(g)(3)) and 
distributive share of any item of income of a partnership that is not a 
look-through partnership (as defined in Sec.  1.1297-2(g)(4)) with 
respect to a tested foreign corporation are treated as passive income, 
except to the extent that the item of income would not be treated as 
passive under section 1297(b)(2)(C) and paragraph (c)(4) of this 
section.
    (4) Exception for certain interest, dividends, rents, and royalties 
received from a related person--(i) In general. For purposes of section 
1297(b)(2)(C), interest, dividends, rents, or royalties actually 
received or accrued by a tested foreign corporation are considered 
received or accrued from a related person only if the payor of the 
interest, dividend, rent, or royalty is a related person (within the 
meaning of section 954(d)(3)) with respect to the tested foreign 
corporation, taking into account paragraph (c)(1)(i)(D) of this section. 
For rules determining when amounts received or accrued by a look-through 
subsidiary or look-through partnership (and treated as received directly 
by a tested foreign corporation pursuant to section 1297(c) and Sec.  
1.1297-2(b)(2) and (b)(3)) are treated as received from a related 
person, see Sec.  1.1297-2(d).
    (ii) Ordering rule. Gross income that is interest, a dividend, or a 
rent or royalty that is, in each case, received or accrued from a 
related person is allocated to income that is not passive under the 
rules of this paragraph (c)(4). If the related person is also a look-
through subsidiary or a look-through partnership with respect to the 
tested foreign corporation, this paragraph (c)(4) applies after the 
application of the intercompany income rules of Sec.  1.1297-2(c).
    (iii) Allocation of interest. For purposes of section 1297(b)(2)(C), 
interest that is received or accrued, as applicable based on the 
recipient's method of accounting, from a related person is allocated to 
income of the related person that is not passive income in proportion to 
the ratio of the portion of the related person's non-passive gross 
income for its taxable year that ends with or within the taxable year of 
the recipient to the total amount of the related person's gross income 
for the taxable year. If the related person does not have gross income 
for the taxable year that ends with or within the taxable year of the 
recipient, the interest is either allocated to income of the related 
person that is not passive income to the extent the related person's 
deduction for the interest would be allocable to non-passive income of 
the related person under the principles of Sec. Sec.  1.861-9 through 
1.861-13T, applied in a reasonable and consistent manner taking into 
account the general operation of the PFIC rules and the purpose of 
section 1297(b)(2)(C) or, alternatively, at the election of the tested 
foreign corporation is treated as allocated entirely to passive income.
    (iv) Allocation of dividends--(A) In general. For purposes of 
section 1297(b)(2)(C), the principles of Sec.  1.316-2(a) apply in 
determining from what

[[Page 718]]

year's earnings and profits a dividend from a related person is treated 
as distributed. A dividend is considered to be distributed, first, out 
of the earnings and profits of the taxable year of the related person 
that includes the date the dividend is distributed (current earnings and 
profits) and that ends with or within the taxable year of the recipient; 
second, out of the earnings and profits accumulated for the immediately 
preceding taxable year of the related person; third, out of the earnings 
and profits accumulated for the second preceding taxable year of the 
related person; and so forth. For purposes of paragraph (c)(4)(iv) of 
this section, the principles of Sec.  1.243-4(a)(6) apply with respect 
to a deficit in an earnings and profits account for a prior year.
    (B) Dividends paid out of current earnings and profits. To the 
extent that a dividend is paid out of current earnings and profits of 
the related person for its taxable year that ends with or within the 
taxable year of the recipient, the dividend is treated as paid ratably 
out of earnings and profits attributable to passive income and to non-
passive income. The portion of the current earnings and profits that is 
treated as paid out of non-passive income of the related person may be 
determined by multiplying the current earnings and profits by the ratio 
of the related person's non-passive gross income as determined under 
this section (including paragraph (c)(1)(ii) of this section) for the 
taxable year to its total gross income as determined under this section 
(including paragraph (c)(1)(ii) of this section) for that year.
    (C) Dividends paid out of accumulated earnings and profits. To the 
extent that a dividend from a related person is treated as paid out of 
the related person's accumulated earnings and profits, the dividend is 
treated as paid ratably out of accumulated earnings and profits of the 
related person for prior taxable years (beginning with the most recently 
accumulated) that are attributable to passive income and to non-passive 
income, which may be determined in the same manner as in paragraph 
(c)(4)(iv)(B) of this section. Alternatively, the accumulated earnings 
and profits may be allocated based on the ratio of accumulated earnings 
and profits that are attributable to passive income and to non-passive 
income during either the related party period or the three-year period. 
The related party period is the entire period during which the related 
person was related to the recipient. The three-year period is the three 
taxable years immediately preceding the related person's taxable year 
that ends with or within the current taxable year of the recipient. The 
three-year period may be used only if the related person has been 
related to the recipient for a period longer than the three taxable 
years immediately preceding the recipient's taxable year.
    (v) Allocation of rents and royalties. For purposes of section 
1297(b)(2)(C), rents and royalties that are received or accrued, as 
applicable based on the recipient's method of accounting, from a related 
person are allocable to income of the related person that is not passive 
income to the extent the related person's deduction for the rent or 
royalty is allocable to non-passive gross income of the related person 
under the principles of Sec. Sec.  1.861-8 through 1.861-14T.
    (vi) Determination of whether amounts are received or accrued from a 
related person. For purposes of section 1297(b)(2)(C), the determination 
of whether interest, dividends, rents, and royalties were received or 
accrued from a related person is made on the date of the receipt or 
accrual, as applicable based on the recipient's method of accounting, of 
the interest, dividend, rent, or royalty.
    (vii) Allocation of distributive share of income from related 
partnership. For purposes of section 1297(a)(1), a tested foreign 
corporation includes its distributive share as provided in section 704 
of the separate items of passive or non-passive income from a 
partnership that is a related person (and not a look-through 
partnership) with respect to the tested foreign corporation for the 
taxable year of the tested foreign corporation.
    (d) Asset test--(1) Calculation of average annual value (or adjusted 
bases)--(i) General rule. For purposes of section 1297, the calculation 
of the average percentage of assets held by a tested foreign corporation 
during its taxable

[[Page 719]]

year that produce passive income or that are held for the production of 
passive income is determined based on the average of the fair market 
values, or the average of the adjusted bases, as appropriate, of the 
passive assets and total assets held (including assets treated as held 
pursuant to section 1297(c) and Sec.  1.1297-2(b)(2)(i) and (b)(3)) by 
the foreign corporation on the last day of each measuring period 
(measuring date) of the foreign corporation's taxable year. The average 
of the fair market values (or the average of the adjusted bases) of the 
foreign corporation's passive assets or total assets for the taxable 
year is equal to the sum of the values (or adjusted bases) of the 
passive assets or total assets, as applicable, on each measuring date of 
the foreign corporation's taxable year, divided by the number of 
measuring dates in the taxable year.
    (ii) Measuring period--(A) General rule. Except as otherwise 
provided in paragraph (d)(1)(ii)(B) of this section, the measuring 
periods for a tested foreign corporation are the four quarters that make 
up the foreign corporation's taxable year.
    (B) Election to use alternative measuring period. The average 
percentage of assets held by a tested foreign corporation during its 
taxable year that produce passive income or that are held for the 
production of passive income may be calculated using a period that is 
shorter than a quarter (such as a week or month). The same period must 
be used to measure the assets of the foreign corporation for the first 
year (including a short taxable year) that this alternative measuring 
period is used, and for any and all subsequent years, unless a 
revocation is made. An election to use an alternative measuring period 
or a revocation of such an election must be made in accordance with the 
rules of paragraph (d)(1)(iv) of this section.
    (C) Short taxable year. For purposes of applying section 1297 to a 
tested foreign corporation that has a taxable year of less than twelve 
months (short taxable year), the average values (or adjusted bases) are 
determined based on the measuring dates of the foreign corporation's 
taxable year that fall within the short taxable year, and by treating 
the last day of the short taxable year as a measuring date.
    (iii) Adjusted basis election. An election under section 
1297(e)(2)(B) with respect to an eligible tested foreign corporation or 
a revocation of such an election may be made by the tested foreign 
corporation or alternatively by the owner (as defined in paragraph 
(d)(1)(iv) of this section). If made by the owner, the election must be 
made in accordance with the rules of paragraph (d)(1)(iv) of this 
section.
    (iv) Time and manner of elections and revocations--(A) Elections. An 
owner (as defined in this paragraph (d)(1)(iv)) of a foreign corporation 
makes an election described in paragraph (d)(1)(ii)(B) or (d)(1)(iii) of 
this section for a taxable year in the manner provided in the 
Instructions to Form 8621 (or successor form), if the owner is required 
to file a Form 8621 (or successor form) with respect to the foreign 
corporation for the taxable year of the owner in which or with which the 
taxable year of the foreign corporation for which the election is made 
ends. If the owner is not required to file Form 8621 (or successor form) 
with respect to the foreign corporation for the taxable year, the owner 
makes such an election by filing a written statement providing for the 
election and attaching the statement to an original or amended Federal 
income tax return for the taxable year of the owner in which or with 
which the taxable year of the foreign corporation for which the election 
is made ends clearly indicating that such election has been made. An 
election can be made by an owner only if the owner's taxable year for 
which the election is made, and all taxable years that are affected by 
the election, are not closed by the period of limitations on assessments 
under section 6501. Elections described in paragraphs (d)(1)(ii)(B) and 
(d)(1)(iii) of this section are not eligible for relief under Sec.  
301.9100-3 of this chapter. For purposes of this paragraph (d)(1)(iv), 
an owner of a foreign corporation is a United States person that is 
eligible under Sec.  1.1295-1(d) to make a section 1295 election with 
respect to the foreign corporation, or would be eligible under Sec.  
1.1295-1(d) to make a section 1295 election if the foreign corporation 
were a PFIC.

[[Page 720]]

    (B) Revocations and subsequent elections. An election described in 
paragraph (d)(1)(ii)(B) or (d)(1)(iii) of this section made pursuant to 
paragraph (d)(1)(iv)(A) of this section is effective for the taxable 
year of the foreign corporation for which it is made and all subsequent 
taxable years of such corporation unless revoked by the Commissioner or 
the owner (as defined in paragraph (d)(1)(iv)(A) of this section) of the 
foreign corporation. The owner of a foreign corporation may revoke such 
an election at any time. If an election described in paragraph 
(d)(1)(ii)(B) or (d)(1)(iii) of this section has been revoked under this 
paragraph (d)(1)(iv)(B), a new election described in paragraph 
(d)(1)(ii)(B) or (d)(1)(iii) of this section, as applicable, cannot be 
made until the sixth taxable year following the year for which the 
previous election was revoked, and such subsequent election cannot be 
revoked until the sixth taxable year following the year for which the 
subsequent election was made. The owner revokes the election for a 
taxable year in the manner provided in the Instructions to Form 8621 (or 
successor form), if the owner is required to file a Form 8621 (or 
successor form) with respect to the foreign corporation for the taxable 
year of the owner in which or with which the taxable year of the foreign 
corporation for which the election is revoked ends, or by filing a 
written statement providing for the revocation and attaching the 
statement to an original or amended Federal income tax return for the 
taxable year of the owner in which or with which the taxable year of the 
foreign corporation for which the election is revoked ends clearly 
indicating that such election has been revoked, if the owner is not 
required to file Form 8621 (or successor form) with respect to the 
foreign corporation for the taxable year.
    (v) Method of measuring assets--(A) Publicly traded foreign 
corporations. For purposes of section 1297, the assets of a publicly 
traded foreign corporation as defined in paragraph (f)(7) of this 
section (including assets treated as held pursuant to section 1297(c) 
and Sec.  1.1297-2(b)(2)(i) and (b)(3)(i), other than assets of a look-
through subsidiary described in paragraph (d)(1)(v)(B) of this section) 
must be measured for all measuring periods of the taxable year on the 
basis of value.
    (B) Non-publicly traded controlled foreign corporation--(1) In 
general. For purposes of section 1297, the assets of a controlled 
foreign corporation that is not described in paragraph (d)(1)(v)(A) of 
this section (including assets treated as held pursuant to section 
1297(c) and Sec.  1.1297-2(b)(2)(i) and (b)(3)(i), other than assets 
held by a look-through subsidiary described in paragraph (d)(1)(v)(A) of 
this section) must be measured for all measuring periods of the taxable 
year during which the foreign corporation is a controlled foreign 
corporation on the basis of adjusted basis.
    (2) Controlled foreign corporation determination. For purposes of 
section 1297(e)(2)(A) and this paragraph (d)(1)(v), the term controlled 
foreign corporation has the meaning provided in section 957, determined 
without applying subparagraphs (A), (B), and (C) of section 318(a)(3) so 
as to consider a United States person as owning stock which is owned by 
a person who is not a United States person.
    (C) Other foreign corporations--(1) In general. Except as provided 
in paragraph (d)(1)(v)(C)(2) of this section, the assets of a foreign 
corporation that is not described in paragraphs (d)(1)(v)(A) or 
(d)(1)(v)(B) of this section (including assets treated as held pursuant 
to section 1297(c) and Sec.  1.1297-2(b)(2)(i) and (b)(3)(i), other than 
assets held by a look-through subsidiary described in paragraphs 
(d)(1)(v)(A) or (d)(1)(v)(B) of this section) are measured for all 
measuring periods of the taxable year on the basis of value, unless a 
tested foreign corporation or a shareholder makes an election under 
section 1297(e)(2)(B) in accordance with paragraph (d)(1)(iii) of this 
section. In the case of a foreign corporation that is described in 
paragraph (d)(1)(v)(B) of this section for some but not all measuring 
periods during a taxable year, this paragraph (d)(1)(v)(C)(1) applies to 
the remaining measuring period or periods during that taxable year.
    (2) Lower-tier subsidiaries--(i) Lower-tier subsidiaries that are 
publicly traded foreign corporations. For purposes of applying section 
1297(a)(2) to the assets of

[[Page 721]]

a foreign corporation that is a lower-tier subsidiary of a foreign 
corporation that directly or indirectly owns all or part of the lower-
tier subsidiary (a parent foreign corporation), if the lower-tier 
subsidiary is described in paragraph (d)(1)(v)(A), the rules of 
paragraph (d)(1)(v)(A) apply. The previous sentence applies both for 
purposes of applying section 1297(a)(2) to the lower-tier subsidiary as 
a tested foreign corporation, and for purposes of applying section 
1297(a)(2) to a parent foreign corporation with respect to the assets of 
the lower-tier subsidiary.
    (ii) Lower-tier subsidiaries that are non-publicly traded controlled 
foreign corporations. For purposes of applying section 1297(a)(2) to the 
assets of a foreign corporation that is a lower-tier subsidiary of a 
parent foreign corporation, if the lower-tier subsidiary is described in 
paragraph (d)(1)(v)(B), the rules of paragraph (d)(1)(v)(B) apply. The 
previous sentence applies both for purposes of applying section 
1297(a)(2) to the lower-tier subsidiary as a tested foreign corporation, 
and for purposes of applying section 1297(a)(2) to a parent foreign 
corporation with respect to the assets of the lower-tier subsidiary.
    (iii) Other lower-tier subsidiaries. For purposes of applying 
section 1297(a)(2) to a foreign corporation that is a lower-tier 
subsidiary of a parent foreign corporation, if the lower-tier subsidiary 
is not described in paragraphs (d)(1)(v)(A) or (d)(1)(v)(B) of this 
section, the assets of the lower-tier subsidiary (including assets 
treated as held pursuant to section 1297(c) and Sec.  1.1297-2(b)(2)(i) 
and (b)(3)(i)) must be measured under the rules of the same paragraph of 
this section (d)(1)(v) that applies to the parent foreign corporation. 
The previous sentence applies both for purposes of applying section 
1297(a)(2) to the lower-tier subsidiary as a tested foreign corporation, 
and for purposes of applying section 1297(a)(2) to a parent foreign 
corporation. If a tested foreign corporation indirectly owns a lower-
tier subsidiary that is not described in paragraphs (d)(1)(v)(A) or 
(d)(1)(v)(B) of this section through one or more other foreign 
corporations, the status of any parent foreign corporation in that chain 
of corporations that is described in paragraph (d)(1)(v)(A) of this 
section, or if there is no such parent foreign corporation then the 
status of any parent foreign corporation in that chain of corporations 
that is described in paragraph (d)(1)(v)(B) of this section, determines 
the basis on which the assets of the lower-tier subsidiary are measured. 
In the case of a foreign corporation that is a lower-tier subsidiary 
with respect to more than one parent foreign corporation, this rule 
applies separately to measure the assets of the lower-tier subsidiary 
with respect to each parent foreign corporation.
    (D) [Reserved]
    (E) Examples. The following examples illustrate the application of 
this paragraph (d)(1)(v).
    (1) Example 1--(i) Facts. USP, a domestic corporation, owns 60% of 
TFC1, which is a foreign corporation. The remaining 40% of TFC1's stock 
is regularly traded on a national securities exchange that is registered 
with the Securities and Exchange Commission and continues to be until 
September 1 of the taxable year, when USP acquires all of TFC1's stock 
pursuant to a tender offer. TFC1 owns 30% of the stock of FS1, a foreign 
corporation that is neither a publicly traded foreign corporation nor a 
controlled foreign corporation.
    (ii) Results. TFC1 is a controlled foreign corporation with respect 
to USP. TFC1 also is a publicly traded foreign corporation until 
September 1 of the taxable year. For purposes of section 1297, the 
assets of TFC1 (including the assets of FS1 treated as held by TFC1 
pursuant to section 1297(c) and Sec.  1.1297-2(b)(2)(i)) must be 
measured on the basis of value for each measuring period ending before 
September 1, pursuant to paragraph (d)(1)(v)(A) of this section. For 
purposes of applying section 1297 to FS1 as a tested foreign corporation 
with respect to USP, the assets of FS1 must be measured using the same 
method as is used for TFC1's assets, pursuant to paragraph 
(d)(1)(v)(C)(2) of this section.
    (2) Example 2--(i) Facts. A, a United States person, owns 1% of the 
stock of TFC2, a foreign corporation that is neither a publicly traded 
foreign corporation nor a controlled foreign corporation. TFC2 owns 25% 
of the stock of

[[Page 722]]

FS2, a foreign corporation that is neither a publicly traded foreign 
corporation nor a controlled foreign corporation.
    (ii) Results. For purposes of applying section 1297 to TFC2, the 
assets of TFC2 (including the assets of FS2 treated as held by TFC2 
pursuant to section 1297(c) and Sec.  1.1297-2(b)(2)(i)) are measured 
for all measuring periods of the taxable year on the basis of value, 
unless A or TFC2 makes an election under section 1297(e)(2)(B) in 
accordance with paragraph (d)(1)(iii) of this section, pursuant to 
paragraph (d)(1)(v)(C)(1) of this section. For purposes of applying 
section 1297 to FS2 as a tested foreign corporation with respect to A, 
the assets of FS2 must be measured using the same method as is used for 
TFC2's assets, pursuant to paragraph (d)(1)(v)(C)(2) of this section.
    (3) Example 3--(i) Facts. The facts are the same as in paragraph 
(d)(1)(v)(E)(2)(i) (the facts in Example 2), except that the 75% of 
FS2's stock not owned by TFC2 is owned by TFC3, a publicly traded 
foreign corporation that is neither related to TFC2 nor to A. B, a 
United States person that is neither related to A nor to TFC2, owns 1% 
of the stock of TFC3.
    (ii) Results. For purposes of applying section 1297 to TFC2, the 
results are the same as in paragraph (d)(1)(v)(E)(2)(ii) (the results in 
Example 2). For purposes of applying section 1297 to FS2 as a tested 
foreign corporation with respect to A, the assets of FS2 must be 
measured using the same method as is used for TFC2's assets, pursuant to 
paragraph (d)(1)(v)(C)(2) of this section. For purposes of applying 
section 1297 to TFC3, the assets of TFC3 must be measured by reference 
to value pursuant to paragraph (d)(1)(v)(A) because it is a publicly 
traded corporation. For purposes of applying section 1297 to FS2 as a 
tested foreign corporation with respect to B, the assets of FS2 must be 
measured by reference to value because TFC3 is a publicly traded foreign 
corporation, pursuant to paragraphs (d)(1)(v)(C)(2) and (d)(1)(v)(A) of 
this section.
    (2) [Reserved]
    (3) Dual-character assets--(i) General rule. Except as otherwise 
provided in paragraph (d)(3)(ii) or (d)(3)(iii) of this section and in 
Sec.  1.1297-2(c), for purposes of section 1297, an asset (or portion of 
an asset) that produces both passive income and non-passive income 
during a taxable year (dual-character asset), including stock and other 
assets that produce passive and non-passive income under section 
1297(b)(2)(C) and paragraph (c)(4) of this section, is treated as two 
assets for each measuring period in the taxable year, one of which is a 
passive asset and one of which is a non-passive asset. The value (or 
adjusted basis) of the dual-character asset is allocated between the 
passive asset and the non-passive asset in proportion to the relative 
amounts of passive income and non-passive income produced by the asset 
(or portion of an asset) during the taxable year. See paragraph 
(d)(3)(iii) of this section for a special rule concerning stock that has 
previously produced dividends subject to the exception provided in 
section 1297(b)(2)(C). For purposes of section 1297(b)(2)(C), a 
partnership interest in a partnership that is a related person to the 
tested foreign corporation is treated as producing passive or non-
passive income in proportion to the tested foreign corporation's 
distributive share of partnership passive or non-passive income for the 
taxable year under paragraph (c)(4)(vii) of this section.
    (ii) Special rule when only part of an asset produces income. For 
purposes of section 1297, when only a portion of an asset produces 
income during a taxable year or a portion of a taxable year, the asset 
is treated as two assets for that period, one of which is characterized 
as a passive asset or a non-passive asset based on the income that it 
produces, and one of which is characterized based on the income that it 
is held to produce. The value (or adjusted basis) of the asset is 
allocated between the two assets pursuant to the method that most 
reasonably reflects the uses of the property. In the case of real 
property, an allocation based on the physical use of the property 
generally is the most reasonable method.
    (iii) Special rule for stock that previously produced income that 
was excluded from passive income under section 1297(b)(2)(C). Stock with 
respect to which no dividends are received during

[[Page 723]]

a taxable year, but with respect to which dividends were received during 
one or both of the prior two taxable years, is characterized based on 
the relative portion of the dividends received that was passive or non-
passive. If the dividends were in whole excluded from passive income 
under section 1297(b)(2)(C) and paragraph (c)(4)(iv) of this section, 
the stock is treated as a single non-passive asset. If the dividends 
were in part excluded from passive income under section 1297(b)(2)(C) 
and paragraph (c)(4)(iv) of this section, the stock is treated as two 
assets, one of which is a passive asset and one of which is a non-
passive asset. The value (or adjusted basis) of the stock is allocated 
between the two assets in proportion to the average percentage of 
aggregate dividends received in the prior two taxable years that were 
characterized as passive income and the average percentage of aggregate 
dividends received in the prior two years that were characterized as 
non-passive income, for the previous two taxable years pursuant to 
section 1297(b)(2)(C) and paragraph (c)(4)(iv) of this section. If the 
tested foreign corporation did not receive any dividends from the stock 
for the current taxable year or within either of the prior two taxable 
years of the tested foreign corporation, then the stock is treated as a 
passive asset.
    (iv) Example. The following example illustrates the application of 
this paragraph (d)(3).
    (A) Facts. (1) USP is a domestic corporation that owns 30% of TFC, a 
foreign corporation. The remaining 70% of TFC is owned by FP, a foreign 
corporation that is unrelated to USP. TFC owns 20% of the value of FS1, 
a foreign corporation, and FP owns the remaining 80% of the value of 
FS1. FP, TFC, and FS1 are not controlled foreign corporations within the 
meaning of section 957(a), and each has a calendar year taxable year.
    (2) In Year 1, FS1 had current earnings and profits of $1000x, 
attributable to passive income of $500x and non-passive income of $500x, 
and paid $300x of dividends to TFC. In Year 2, FS1 had current earnings 
and profits of $1000x, attributable to passive income of $100x and non-
passive income of $900x, and paid $100x of dividends to TFC. In Year 3, 
FS1 has passive income of $200x and non-passive income of $800x and does 
not pay a dividend.
    (3) Throughout Year 3, TFC holds an obligation of FS1 with respect 
to which FS1 pays $100x of interest.
    (4) In addition to the stock in FS1 and the FS1 obligation, TFC 
holds an office building, 40% of which is rented to FP throughout Year 3 
for $100x per quarter. During Year 3, FP has only passive income. The 
remaining 60% of the office building is leased throughout Year 3 to an 
unrelated person for $300x per quarter, and TFC's own officers or staff 
of employees regularly perform active and substantial management and 
operational functions while the property is leased.
    (B) Results. (1) For purposes of section 1297(b)(2)(C), FP is a 
``related person'' with respect to TFC because FP owns more than 50% of 
the vote or value of TFC, and FS1 is a ``related person'' with respect 
to TFC because FP owns more than 50% of the vote or value of both TFC 
and of FS1.
    (2) Under paragraph (c)(4)(iv) of this section, the dividends paid 
by FS1 in Year 1 were characterized as 50% passive income ($150x) and 
50% non-passive income ($150x). Under paragraph (c)(4)(iv) of this 
section, the dividends paid by FS1 in Year 2 were characterized as 10% 
passive income ($10x) and 90% non-passive income ($90x). Accordingly, 
the average percentage of dividends for the previous two taxable years 
that were characterized as passive income is 40% (((10% x $100x) + (50% 
x $300x))/($100x + $300x)), and the average percentage of dividends 
characterized as non-passive income is 60% (((90% x $100x) + (50% x 
$300x))/($100x + $300x)). Thus, under paragraph (d)(3)(iii) of this 
section, 60% of each share of stock of FS1 is characterized as a non-
passive asset and 40% is characterized as a passive asset for each 
quarter of Year 3 for purposes of applying section 1297(a)(2) to 
determine whether TFC is a PFIC.
    (3) Under paragraph (c)(4)(iii) of this section, the interest 
received by TFC from FS1 is characterized as 20% ($200x/($200x + $800x)) 
passive income and thus 80% non-passive income for purposes of applying 
section 1297(a)(1) to determine whether TFC is a PFIC. Accordingly,

[[Page 724]]

under paragraph (d)(3)(i) of this section, 20% of the obligation of FS1 
is characterized as a passive asset and 80% as a non-passive asset for 
each quarter of Year 3 for purposes of applying section 1297(a)(2) to 
determine whether TFC is a PFIC.
    (4) Under paragraph (c)(4)(v) of this section, the rent received 
from FP throughout Year 3 is characterized as 100% passive income. Under 
paragraph (c)(1)(i)(A) of this section and section 954(c)(2)(A), the 
rent received from the unrelated person is characterized as 100% non-
passive income. Accordingly, under paragraph (d)(3)(i) of this section, 
the 40% of the office building rented to FP has a value of 25% (($100x x 
4)/(($100x x 4) + ($300x x 4))) of the value of the office building and 
that 25% is a passive asset, and the 60% of the office building rented 
to the unrelated person has a value of 75% (($300x x 4)/(($100x x 4) + 
($300x x 4))) of the value of the office building and is a non-passive 
asset for purposes of applying section 1297(a)(2) to determine whether 
TFC is a PFIC.
    (4) Passive treatment of stock and partnership interests. For 
purposes of section 1297(a)(2), shares of stock in a corporation that is 
not a look-through subsidiary (as defined in Sec.  1.1297-2(g)(3)) and 
partnership interests in a partnership that is not a look-through 
partnership (as defined in Sec.  1.1297-2(g)(4)) with respect to a 
tested foreign corporation for a taxable year or portion thereof are 
treated as passive assets for the taxable year or relevant portion 
thereof, except to the extent the stock or partnership interest is 
treated as a dual-character asset under section 1297(b)(2)(C) and 
paragraph (d)(3) of this section because it produces both passive and 
non-passive income, or the stock or partnership interest produces solely 
non-passive income for the taxable year under section 1297(b)(2)(C) and 
paragraph (c)(4) of this section or under paragraph (d)(5) of this 
section.
    (5) Dealer property. For purposes of section 1297(a)(2), an asset 
that produces, or would produce upon disposition, income or gain that 
is, or would be, excluded from passive income pursuant to section 
954(c)(2)(C) is treated as a non-passive asset.
    (e) Stapled stock. If a United States person that would be a 
shareholder (within the meaning of Sec.  1.1291-1(b)(7) and (b)(8)) of a 
stapled entity (as defined in section 269B(c)(2)) owns stock in all 
entities that are stapled entities with respect to each other and the 
shares are stapled interests (as defined in section 269B(c)(3)), the 
United States person's interests in the stapled entities are treated as 
an interest in a single entity that holds all of the assets of the 
stapled entities, conducts all of the activities of the stapled 
entities, and derives all of the income of the stapled entities for all 
purposes of the PFIC regime.
    (f) Definitions. The following definitions apply for purposes of 
this section and Sec.  1.1297-2:
    (1) Measuring date. The term measuring date has the meaning provided 
in paragraph (d)(1)(i) of this section.
    (2) Measuring period. The term measuring period means a three-month 
period or an alternative measuring period, within the meaning provided 
in paragraph (d)(1)(ii) of this section.
    (3) Non-passive asset. The term non-passive asset means an asset 
other than a passive asset.
    (4) Non-passive income. The term non-passive income means income 
other than passive income.
    (5) Passive asset. The term passive asset means an asset that 
produces passive income, or which is held for the production of passive 
income, taking into account the rules in paragraphs (c) and (d) of this 
section.
    (6) Passive income. The term passive income has the meaning provided 
in paragraph (c)(1) of this section.
    (7) Publicly traded foreign corporation. The term publicly traded 
foreign corporation means a foreign corporation the stock of which is 
regularly traded on an exchange described in section 1297(e)(3), other 
than in de minimis quantities, for at least twenty trading days during a 
taxable year.
    (8) Related person. For purposes of applying the rules of this 
section and Sec.  1.1297-2 with respect to section 1297(b)(2)(C), the 
term means a related person within the meaning of section 954(d)(3).
    (9) Tested foreign corporation. The term tested foreign corporation 
means a

[[Page 725]]

foreign corporation the PFIC status of which is being tested under 
section 1297(a).
    (g) Applicability date--(1) In general. Except as otherwise provided 
in paragraph (g)(2) of this section, the rules of this section apply to 
taxable years of shareholders beginning on or after January 14, 2021. A 
shareholder may choose to apply such rules for any open taxable year 
beginning before January 14, 2021, provided that, with respect to a 
tested foreign corporation, the shareholder consistently applies the 
provisions of this section (except that consistent treatment is not 
required with respect to paragraph (c)(1)(i)(A) of this section) and 
Sec.  1.1291-1(b)(8)(iv) and (b)(8)(v)(A), (B), (C), and (D) and 
Sec. Sec.  1.1297-2, 1.1298-2, and 1.1298-4 for such year and all 
subsequent years.
    (2) Paragraph (d)(1)(v)(B)(2) of this section. Paragraph 
(d)(1)(v)(B)(2) of this section applies to taxable years of shareholders 
ending on or after October 1, 2019. For taxable years of shareholders 
ending before October 1, 2019, a shareholder may apply paragraph 
(d)(1)(v)(B)(2) of this section to the last taxable year of a foreign 
corporation beginning before January 1, 2018, and each subsequent 
taxable year of the foreign corporation, provided that the shareholder 
and United States persons that are related (within the meaning of 
section 267 or 707) to the taxpayer consistently apply such paragraph 
with respect to all foreign corporations.

[T.D. 9936, 86 FR 4557, Jan. 15, 2021, as amended at 86 FR 13648, Mar. 
10, 2021]



Sec.  1.1297-2  Special rules regarding look-through subsidiaries 
and look-through partnerships.

    (a) Overview. This section provides rules concerning the treatment 
of income and assets of a look-through subsidiary (as defined in Sec.  
1.1297-2(g)(3)) or look-through partnership (as defined in Sec.  1.1297-
2(g)(4)) for purposes of determining whether a tested foreign 
corporation (as defined in Sec.  1.1297-1(f)(9)) is a passive foreign 
investment company (PFIC) under section 1297(a). Paragraph (b) of this 
section provides guidance for purposes of section 1297(c) on how to 
determine a tested foreign corporation's ownership in a corporation and 
how to determine a tested foreign corporation's proportionate share of a 
look-through subsidiary's or look-through partnership's assets and 
income. Paragraph (c) of this section provides rules that eliminate 
certain income and assets related to look-through subsidiaries and look-
through partnerships for purposes of determining a tested foreign 
corporation's PFIC status. Paragraph (d) of this section provides a rule 
to determine whether certain income received or accrued by look-through 
subsidiaries and look-through partnerships is received or accrued from a 
related person for purposes of section 1297(b)(2)(C). Paragraph (e) of 
this section provides rules concerning the attribution of activities 
from qualified affiliates (as defined in Sec.  1.1297-2(e)(2)) for 
purposes of characterizing the income and assets of a look-through 
subsidiary or look-through partnership. Paragraph (f) of this section 
provides rules for determining the amount of gain from the direct or 
indirect sale or exchange of stock of a look-through subsidiary or 
partnership interests in a partnership described in section 954(c)(4) 
that is taken into account under section 1297(a) and for determining the 
passive or non-passive character of gain from the sale of a look-through 
subsidiary. Paragraph (g) of this section provides definitions 
applicable for this section, and paragraph (h) of this section provides 
the applicability date of this section.
    (b) General rules--(1) Tested foreign corporation's ownership of a 
corporation. For purposes of section 1297(c) and this section, the 
principles of section 958(a) and the regulations in this chapter under 
that section applicable to determining direct or indirect ownership by 
value apply to determine a tested foreign corporation's percentage 
ownership (by value) in the stock of another corporation. These 
principles apply whether an intermediate entity is domestic or foreign.
    (2) Tested foreign corporation's proportionate share of the assets 
and income of a look-through subsidiary--(i) Proportionate share of 
subsidiary assets. For each measuring period (as defined in Sec.  
1.1297-1(f)(2)), a tested foreign corporation is treated as if it held 
its proportionate share of each asset of a look-

[[Page 726]]

through subsidiary, determined based on the tested foreign corporation's 
percentage ownership (by value) (as determined under paragraph (b)(1) of 
this section)) of the look-through subsidiary on the measuring date (as 
defined in Sec.  1.1297-1(f)(1)). A tested foreign corporation's 
proportionate share of a look-through subsidiary's asset is treated as 
producing passive income, or being held to produce passive income, to 
the extent the asset produced, or was held to produce, passive income in 
the hands of such look-through subsidiary under the rules of paragraph 
(b)(2)(ii) of this section.
    (ii) Proportionate share of subsidiary income--(A) General rule. A 
tested foreign corporation is treated as if it received directly its 
proportionate share of each item of gross income or loss of a 
corporation for a taxable year if the corporation is a look-through 
subsidiary with respect to the tested foreign corporation for the 
taxable year of the tested foreign corporation. In such case, a tested 
foreign corporation's proportionate share of a look-through subsidiary's 
gross income or loss is determined based on the corporation's average 
percentage ownership (by value) of the look-through subsidiary. The 
exceptions to passive income in section 1297(b)(2) and the relevant 
exceptions to foreign personal holding company income in section 954(c) 
that are based on whether income is derived in the active conduct of a 
business or whether a corporation is engaged in the active conduct of a 
business apply to such income only if the exception would have applied 
to exclude the income from passive income or foreign personal holding 
company income in the hands of the subsidiary, determined by taking into 
account only the activities of the subsidiary except as provided in 
paragraph (e) of this section. See paragraph (d) of this section for 
rules determining whether a person is a related person for purposes of 
applying section 1297(b)(2)(C) in the case of income received or accrued 
by a subsidiary that is treated as received directly by a tested foreign 
corporation pursuant to this paragraph (b)(2).
    (B) Partial year. When a corporation is not a look-through 
subsidiary with respect to a tested foreign corporation for an entire 
taxable year of the tested foreign corporation, the tested foreign 
corporation may be treated as if it received directly its proportionate 
share of the gross income or loss of the first corporation for each 
measuring period in the year for which the first corporation is a look-
through subsidiary, if the conditions in paragraph (g)(3)(ii)(B) of this 
section are satisfied. In such case, a tested foreign corporation's 
proportionate share of a look-through subsidiary's gross income or loss 
is determined based on the tested foreign corporation's percentage 
ownership (by value) (as determined under paragraph (b)(1) of this 
section) of the look-through subsidiary on the relevant measuring date.
    (iii) Coordination of section 1297(c) with section 1298(b)(7). A 
tested foreign corporation is not treated under section 1297(c) and this 
paragraph (b) as holding its proportionate share of the assets of a 
domestic corporation, or receiving directly its proportionate share of 
the gross income or loss of the domestic corporation, if the stock of 
the domestic corporation is treated as an asset that is not a passive 
asset (as defined in Sec.  1.1297-1(f)(5)) that produces income that is 
not passive income (as defined in Sec.  1.1297-1(f)(6)) under section 
1298(b)(7) (concerning the treatment of certain foreign corporations 
owning stock in certain 25-percent-owned domestic corporations). See 
Sec.  1.1298-4 for rules governing the application of section 
1298(b)(7).
    (3) Tested foreign corporation's proportionate share of the assets 
and income of a look-through partnership--(i) Proportionate share of 
partnership assets. For each measuring period (as defined in Sec.  
1.1297-1(f)(2)), a tested foreign corporation is treated as if it held 
its proportionate share of each asset of a look-through partnership, 
determined based on the tested foreign corporation's percentage 
ownership (by value) (as determined under paragraph (b)(1) of this 
section) of the look-through partnership on the measuring date (as 
defined in Sec.  1.1297-1(f)(1)). A tested foreign corporation's 
proportionate share of a look-through partnership's asset is treated as 
producing passive income, or being held to produce passive income, to 
the extent the asset produced, or

[[Page 727]]

was held to produce, passive income in the hands of the partnership 
under the rules in paragraph (b)(3)(ii) of this section.
    (ii) Proportionate share of partnership income--(A) General rule. A 
tested foreign corporation is treated as if it received directly its 
proportionate share of any item of gross income or loss of a partnership 
that is a look-through partnership with respect to the tested foreign 
corporation for the taxable year of the tested foreign corporation. The 
exceptions to passive income in section 1297(b)(2) and the relevant 
exceptions to foreign personal holding company income in section 954(c) 
that are based on whether income is derived in the active conduct of a 
business or whether a corporation is engaged in the active conduct of a 
business apply to such income only if the exception would have applied 
to exclude the income from passive income or foreign personal holding 
company income in the hands of the partnership, determined by taking 
into account only the activities of the partnership except as provided 
in paragraph (e) of this section. See paragraph (d) of this section for 
rules determining whether a person is a related person for purposes of 
applying section 1297(b)(2)(C) in the case of income received or accrued 
by a partnership that is treated as received directly by a tested 
foreign corporation pursuant to this paragraph (b)(3).
    (B) Partial year. When a partnership is not a look-through 
partnership with respect to a tested foreign corporation for an entire 
taxable year of the tested foreign corporation, the tested foreign 
corporation may be treated as if it received directly its proportionate 
share of the gross income of the partnership for each measuring period 
in the year for which the partnership is a look-through partnership, 
provided that the conditions set forth in paragraph (g)(3)(ii)(B) of 
this section would be satisfied if the partnership were a corporation.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (b). For purposes of these examples, USP is a domestic 
corporation; TFC, LTS, and FS are foreign corporations that are not 
controlled foreign corporations within the meaning of section 957(a); 
USP owns 30% of TFC; and LTS owns 25% of the only class of FS stock.
    (i) Example 1--(A) Facts. TFC directly owns 80% of the only class of 
LTS stock for TFC's and LTS's entire taxable year.
    (B) Results--(1) LTS. Under paragraph (b)(1) of this section and 
pursuant to the principles of section 958(a), LTS owns 25% of the value 
of FS. Under paragraph (b)(2)(i) and (ii) of this section, in 
determining whether LTS is a PFIC under section 1297(a), LTS is treated 
as if it held 25% of each of FS's assets on each of the measuring dates 
in its taxable year and received directly 25% of the gross income of FS 
for the taxable year.
    (2) TFC. Under paragraph (b)(1) of this section and pursuant to the 
principles of section 958(a), TFC owns 80% of the value of LTS and 
indirectly owns 20% of the value of FS. Under paragraph (b)(2) of this 
section, in determining whether TFC is a PFIC under section 1297(a), TFC 
is treated as if it held 80% of each of LTS's assets on each of the 
measuring dates in its taxable year and received directly 80% of the 
gross income of LTS for the taxable year. However, because TFC 
indirectly owns less than 25% of FS, FS is not a look-through subsidiary 
with respect to TFC and, therefore, TFC is treated as if it held a 20% 
interest in the stock of FS (and not the assets of FS), and received 80% 
of any dividends paid from FS to LTS (and not any income of FS).
    (ii) Example 2--(A) Facts. TFC directly owns 25% of the only class 
of LTS stock on the last day of each of the first three quarters of its 
taxable year but disposes of its entire interest in LTS during the 
fourth quarter of its taxable year.
    (B) Results. Under paragraph (b)(1) and pursuant to the principles 
of section 958(a), on each of its first three measuring dates, TFC owns 
25% of the value of LTS and indirectly owns 6.25% of the value of FS. 
Under paragraph (g)(3) of this section, if information about the gross 
income of LTS for each of the first three quarters of its taxable year 
is available to TFC, LTS is treated as a look-through subsidiary with 
respect to TFC for those quarters because TFC owned 25% of the value of

[[Page 728]]

LTS on the measuring dates with respect to those measuring periods. In 
that case, under paragraph (b)(2) of this section, in determining 
whether TFC is a PFIC under section 1297(a), TFC is treated as if it 
held 25% of each of LTS's assets and received directly 25% of the gross 
income of LTS on each of the first three measuring dates in its taxable 
year. For each of its first three quarters, if LTS is treated as a look-
through subsidiary with respect to TFC under paragraph (g)(3) of this 
section, then TFC is treated as if it held a 6.25% interest in the stock 
of FS (and not the assets of FS) and received 25% of any dividends paid 
from FS to LTS (and not any income of FS). Under paragraph (g)(3) of 
this section, if information about the gross income of LTS for each of 
the first three quarters of its taxable year is not available to TFC, 
then LTS is not a look-through subsidiary with respect to TFC.
    (iii) Example 3--(A) Facts. TFC directly owns 100% of the only class 
of LTS stock for TFC's and LTS's entire taxable year. TFC sells one item 
of property described in section 954(c)(1)(B)(i) for a gain of $25x and 
another for a loss of $10x, and no exception from passive income applies 
to either amount. During the taxable year, FS sells one item of property 
described in section 954(c)(1)(B)(i) for a gain of $50x and another for 
a loss of $55x; no exception from passive income applies to either 
amount.
    (B) Results. Under paragraph (b)(1) of this section and pursuant to 
the principles of section 958(a), TFC owns 100% of the value of LTS, and 
TFC indirectly owns 25% of the value of FS. Under paragraph (b) of this 
section, in determining whether TFC is a PFIC under section 1297(a), TFC 
is treated as if it held 100% of LTS's assets on each of the measuring 
dates in its taxable year and received directly 100% of the gross income 
of LTS for the taxable year. Furthermore, TFC is treated as if it held 
25% of each of FS's assets and received directly 25% of the gross income 
of FS. Pursuant to Sec.  1.1297-1(c)(1)(ii), the excess of gains over 
losses from property transactions described in section 954(c)(1)(B) is 
taken into account as gross income for purposes of section 1297, and 
items of gain or loss of look-through subsidiaries are treated as 
recognized by a tested foreign corporation. Accordingly, TFC takes into 
account the net $5x loss from the sales of property by FS. TFC's income 
from its own sales of property constitutes passive income pursuant to 
Sec.  1.1297-1(c) and section 954(c)(1)(B), although, pursuant to Sec.  
1.1297-1(c)(1)(ii), only the excess of gains over losses, $15x ($25x - 
$10x), is taken into account as gross income for purposes of section 
1297. As a result, TFC's income (including the $5x loss from FS), all of 
which is passive income, equals $10x ($15x - $5x) of gross income.
    (c) Elimination of certain intercompany assets and income--(1) 
General rule for asset test--(i) LTS stock. For purposes of section 
1297(a)(2), a tested foreign corporation does not take into account the 
value (or adjusted basis) of stock of a look-through subsidiary (LTS 
stock), including LTS stock that the tested foreign corporation is 
treated as owning on a measuring date pursuant to section 1297(c) and 
paragraph (b)(2) or (b)(3) of this section. Furthermore, for purposes of 
section 1297(a)(2), a tested foreign corporation does not take into 
account the value (or adjusted basis) of its own stock that it is 
treated as owning on a measuring date pursuant to section 1297(c) and 
paragraph (b)(2) or (b)(3) of this section.
    (ii) LTS obligation. For purposes of section 1297(a)(2), a tested 
foreign corporation does not take into account the value (or adjusted 
basis) of its proportionate share of a direct LTS obligation, an 
indirect LTS obligation or a TFC obligation that it is treated as owning 
on a measuring date. The term direct LTS obligation means a debt 
obligation of, lease to, or license to a look-through subsidiary (LTS 
debt, LTS lease, and LTS license, respectively, and LTS obligation 
collectively) from the tested foreign corporation that the tested 
foreign corporation owns on a measuring date, and the term indirect LTS 
obligation means a LTS obligation from a look-through subsidiary that 
the tested foreign corporation is treated as owning on a measuring date 
pursuant to section 1297(c) and paragraph (b)(2) or (b)(3) of this 
section. The term TFC obligation means a debt obligation of, lease to, 
or a license to the tested

[[Page 729]]

foreign corporation from a look-through subsidiary that the tested 
foreign corporation is treated as owning on a measuring date pursuant to 
section 1297(c) and paragraph (b)(2) or (b)(3) of this section. The 
tested foreign corporation's proportionate share of a LTS obligation or 
a TFC obligation is the value (or adjusted basis) of the item multiplied 
by the tested foreign corporation's percentage ownership (by value) in 
each relevant look-through subsidiary. For purposes of section 
1297(a)(2) and Sec.  1.1297-1(d) as applied to a tested foreign 
corporation, property subject to a LTS lease or LTS license or a lease 
or license to the tested foreign corporation is characterized as either 
producing passive income or non-passive income (or both) by taking into 
account the activities of the qualified affiliates (as defined in 
paragraph (e)(2) of this section) of the entity that owns the property. 
For this purpose, the activities of the entity that owns the property 
that is subject to the lease or license are not taken into account to 
the extent that they relate to the lease or license.
    (2) General rule for income test--(i) LTS stock. For purposes of 
section 1297(a)(1), a tested foreign corporation does not take into 
account dividends derived with respect to LTS stock, including dividends 
that the tested foreign corporation is treated as receiving on a 
measuring date pursuant to section 1297(c) and paragraph (b)(2) or 
(b)(3) of this section; provided that, notwithstanding the foregoing, a 
tested foreign corporation takes into account dividends that are 
attributable to income that was not treated as received directly by the 
tested foreign corporation pursuant to paragraph (b)(2) of this section. 
For this purpose, the rules of Sec.  1.1297-1(c)(4)(iv)(A) apply to 
determine the earnings and profits from which a dividend is paid, 
substituting the term ``look-through subsidiary'' for ``related 
person.''
    (ii) LTS obligation. For purposes of section 1297(a)(1), a tested 
foreign corporation does not take into account its proportionate share 
of interest, rents, or royalties derived with respect to direct or 
indirect LTS obligations or TFC obligations. The tested foreign 
corporation's proportionate share of interest, rents, or royalties is 
the amount of the item multiplied by the tested foreign corporation's 
percentage ownership (by value) in each relevant look-through 
subsidiary.
    (3) Partnerships. For purposes of section 1297(a)(1) and (a)(2), the 
principles of paragraphs (c)(1) and (2) of this section apply with 
respect to ownership interests in, debt of, and leases or licenses to a 
look-through partnership (as defined in paragraph (g)(4) of this 
section), and with respect to distributions and the distributive shares 
of income from a look-through partnership and interest, rents, or 
royalties derived with respect to the debt, leases or licenses of a 
look-through partnership.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (c). For purposes of these examples, USP is a domestic 
corporation; USP owns 30% of TFC; TFC, LTS, LTS1, LTS2, and FS are 
foreign corporations that are not controlled foreign corporations within 
the meaning of section 957(a); FPS is a foreign partnership; and TFC, 
LTS1, and LTS2 measure assets for purposes of section 1297(a)(2) based 
on value.
    (i) Example 1--(A) Facts. TFC directly owns 80% of the only class of 
LTS stock for TFC's and LTS's entire taxable year, and LTS is a look-
through subsidiary (as defined in paragraph (g)(3) of this section) with 
respect to TFC. LTS owns 25% of the only class of FS stock, and FS is a 
look-through subsidiary with respect to LTS. Pursuant to the principles 
of section 958(a), TFC owns 80% of the value of LTS, LTS owns 25% of the 
value of FS, and TFC indirectly owns 20% of the value of FS. During the 
first quarter of the taxable year, LTS received a $20x dividend from FS.
    (B) Results--(1) LTS. Under paragraph (c)(1)(i) of this section, for 
purposes of applying section 1297(a)(2) to LTS, LTS's assets do not 
include the stock of FS. Under paragraph (c)(2)(i) of this section, for 
purposes of applying section 1297(a)(1) to LTS, LTS's income does not 
include the $20x dividend from FS.
    (2) TFC. Under paragraph (c)(1)(i) of this section, for purposes of 
applying section 1297(a)(2) to TFC, TFC's assets do not include the 
stock of LTS. Under

[[Page 730]]

paragraph (b)(2)(ii)(A) of this section, for purposes of applying 
section 1297(a)(1) to TFC, TFC is treated as receiving directly the 
income of LTS. Because TFC indirectly owns less than 25% of FS, FS is 
not a look-through subsidiary with respect to TFC and, therefore, TFC's 
assets include the value of TFC's 20% interest in the stock of FS and do 
not include 20% of FS's assets. Similarly, TFC is treated as if it 
received $16x (80% x $20x) of the $20x dividend paid from FS to LTS (and 
not any income of FS). Because the dividend constitutes gross income to 
LTS (although it is eliminated for purposes of applying section 
1297(a)(1) to LTS), TFC is treated as receiving the dividend from FS 
directly under paragraph (b)(2)(ii)(A) of this section. Because the 
dividend is from a subsidiary that is not a look-through subsidiary with 
respect to TFC, paragraph (c)(2)(i) of this section does not apply to 
eliminate the $16x dividend for purposes of section 1297(a).
    (ii) Example 2--(A) Facts. TFC directly owns 40% of the value of 
LTS1 stock on each of the measuring dates, and thus is treated under 
paragraph (b)(1) of this section as owning 40% of LTS1's assets on each 
of the measuring dates. TFC's assets include a loan to LTS1 with a 
balance of $1,000x on each of the measuring dates. During the first 
quarter of the taxable year, TFC received $20x of dividends from LTS1, 
which were attributable to income of LTS1 treated as received directly 
by TFC pursuant to paragraph (b)(2) of this section, and $30x of 
interest on the loan, both of which were paid in cash.
    (B) Results. Under paragraph (c)(1)(i) of this section, for purposes 
of applying section 1297(a), TFC's assets do not include the stock of 
LTS1, and TFC's income does not include the $20x of dividends received 
from LTS1 pursuant to paragraph (c)(2)(i) of this section. Similarly, 
under paragraph (c)(1)(ii) of this section TFC's assets include only 
$600x ($1,000x loan -(40% x $1,000x)) of the loan to LTS1, and under 
paragraph (c)(2)(ii) of this section, TFC's income includes only $18x 
($30x interest - (40% x $30x)) of the interest from LTS1. However, TFC's 
assets include the entire $50x of cash ($20x of dividends and $30x of 
interest) received from LTS1.
    (iii) Example 3--(A) Facts. The facts are the same as in paragraph 
(c)(4)(ii)(A) of this section (the facts in Example 2), except that TFC 
also directly owns 30% of the value of LTS2 stock on each of the 
measuring dates, and thus is treated under paragraph (b)(1) of this 
section as owning 30% of LTS2's assets, and LTS1's assets also include a 
loan to LTS2 with a balance of $200x on each of the measuring dates. 
During the first quarter of the taxable year, LTS1 received $5x of 
interest on the loan, which was paid in cash.
    (B) Results. The results are the same as in paragraph (c)(4)(ii)(B) 
of this section (the results in Example 2), except that TFC's assets 
also do not include the stock of LTS2. Similarly, although TFC would be 
treated under paragraph (b)(2) of this section as owning $80x (40% x 
$200x) of the LTS1 loan to LTS2, under paragraph (c)(1)(ii) of this 
section TFC does not take into account its proportionate share of an 
indirect LTS obligation and accordingly, TFC does not take into account 
$24x (30% x $80x) of the loan to LTS2. As a result, TFC's assets include 
only $56x ($80x - $24x) of the LTS1 loan to LTS2. Furthermore, although 
TFC would be treated under paragraph (b)(2) of this section as receiving 
$2x (40% x $5x) of the interest received by LTS1 from LTS2, under 
paragraph (c)(2)(ii) of this section TFC does not take into account its 
proportionate share of interest with respect to an indirect LTS 
obligation and thus, TFC does not take into account $0.60x (30% x $2x) 
of the interest received by LTS1. Accordingly, TFC's income includes 
only $1.40x ($2x - $0.60x) of the interest from LTS2. Furthermore, TFC's 
assets include $2x (40% x $5x) of LTS1's cash received from LTS2.
    (iv) Example 4--(A) Facts. TFC directly owns 80% of the value of 
LTS1 stock on each of the measuring dates, and thus is treated under 
paragraph (b)(1) of this section as owning 80% of LTS1's assets on each 
of the measuring dates. TFC also directly owns 50% of the value in FPS 
on each of the measuring dates. LTS1's assets include the remaining 50% 
of the value in FPS and a loan to FPS with a balance of $500x on each of 
the measuring dates. FPS's

[[Page 731]]

assets include a loan to TFC with a balance of $1000x on each of the 
measuring dates. During the first measuring period of the taxable year, 
FPS received $30x of interest from TFC, and LTS1 received $15x of 
interest from FPS, both of which were paid in cash. During the last 
measuring period of the taxable year, FPS received $80x of income from 
an unrelated person in cash and distributed $60x of such income in cash 
to TFC and LTS1 in proportion to their interests in FPS.
    (B) Results. Under paragraph (c)(1)(i) and (ii) of this section, for 
purposes of applying section 1297(a), TFC's assets do not include the 
stock of LTS1, the interests in FPS owned by TFC directly and through 
LTS1, any of the loan by FPS to TFC, or any of the loan by LTS1 to FPS. 
Similarly, under paragraph (c)(2)(i) and (ii) of this section, TFC's 
income does not include any of the $30x of interest received by FPS from 
TFC, any of the $15x of interest received by LTS1 from FPS, or any of 
the $60x of distributions received by TFC and LTS1 from FPS. However, on 
each of the measuring dates, TFC's assets include $27x ((50% x $30x) + 
(80% x 50% x $30x)) of the $30 of cash received by FPS from TFC and $12x 
(80% x $15x) of the $15x of cash received by LTS1 from FPS. Moreover, on 
the last measuring date of the taxable year, TFC's assets include $18x 
((50% x $20x) + (80% x 50% x $20x)) of the $20x ($80x-$60x) of cash 
received by FPS from the unrelated person and retained by FPS and $54x 
((50% x $60x) + (80% x 50% x $60x)) of the $60x cash received by FPS 
from the unrelated person and distributed. Furthermore, TFC's income 
includes $72x ((50% x $80x) + (80% x 50% x $80x)) of the $80x of income 
received by FPS from an unrelated person.
    (v) Example 5--(A) Facts. TFC directly owns 80% of the value of the 
stock of LTS1 and 60% of the value of the stock of LTS2 on each of the 
measuring dates, and thus is treated under paragraph (b)(1) of this 
section as owning 80% of LTS1's assets and 60% of LTS2's assets on each 
of the measuring dates. TFC's assets include a license for the use of 
its intangible property by LTS1 with a value of $5,000x on each of the 
measuring dates, LTS1's assets include a sub-license of such license to 
LTS2 with a value of $2,000x on each of the measuring dates, and LTS2's 
assets include a lease of its building to LTS1 with a value of $4,000x 
on each of the measuring dates. LTS1 and LTS2 each use the intangible 
property that is the subject of the license and sub-license in its 
respective trade or business, and LTS1 uses the building in its trade or 
business. During the last quarter of the taxable year, TFC received a 
royalty of $500x from LTS1 with respect to the license, and LTS1 
received a royalty of $200x from LTS2 with respect to the sub-license, 
both of which were paid in cash. LTS2 received $100x of rent paid in 
cash from LTS1 during each quarter of the taxable year with respect to 
the building lease.
    (B) Results--(1) Asset test. Under paragraph (c) of this section, 
for purposes of applying section 1297(a)(2) to TFC's final measuring 
period, the following analysis applies. TFC's assets do not include the 
stock of LTS1 and LTS2. Similarly, TFC's assets include only $1,000x 
($5,000x license - (80% x $5,000x)) of the license to LTS1. However, 
TFC's assets include the entire $500x of cash it received from LTS1 as a 
result of the royalty. Moreover, although TFC would be treated under 
paragraph (b)(2) of this section as owning $1,600x (80% x $2,000x) of 
the LTS1 sub-license to LTS2, under paragraph (c)(1)(ii) of this section 
TFC does not take into account its proportionate share of an indirect 
LTS obligation, and accordingly TFC does not take into account $960x 
(60% x $1,600x) of LTS1's sub-license to LTS2. As a result, TFC's assets 
include $640x($1,600x - $960x) of the sub-license. In addition, TFC's 
assets include $160x (80% x $200x) of LTS1's cash received from LTS2 as 
a result of the royalty to LTS1. Similarly, although TFC would be 
treated under paragraph (b)(2) of this section as owning $2,400x (60% x 
$4,000x) of the LTS2 lease to LTS1, under paragraph (c)(1)(ii) of this 
section TFC does not take into account $1,920x (80% x $2,400x) of the 
LTS2 building lease, and accordingly, its assets include $480x ($2,400x 
- $1,920x) of the lease. TFC's assets also include $240x (60% x $100x x 
4) of LTS2's cash received from LTS1 as a result of the rental payment 
to LTS2.

[[Page 732]]

    (2) Income test. Under paragraph (c)(2)(ii) of this section, because 
TFC does not take into account its proportionate share of a direct LTS 
obligation, TFC's income includes only $100x ($500x royalty - (80% x 
$500x)) of the royalties from LTS1. Furthermore, although TFC would be 
treated under paragraph (b)(2) of this section as receiving $160x (80% x 
$200x) of the royalty received by LTS1 from LTS2, under paragraph 
(c)(2)(ii) of this section TFC does not take into account its 
proportionate share of royalties derived with respect to an indirect LTS 
obligation, and accordingly TFC does not take into account $96x (60% x 
$160x) of the royalty received by LTS1. As a result, TFC's income 
includes only $64x ($160x - $96x) of the royalty from LTS2. Similarly, 
although TFC would be treated under paragraph (b)(2) of this section as 
receiving $240x (60% x $100x x 4) of the rent received by LTS2 from 
LTS1, under paragraph (c)(2)(ii) of this section TFC does not take into 
account its proportionate share of rent derived with respect to an 
indirect LTS obligation, and accordingly TFC does not take into account 
$192x (80% x $240) of the rent received by LTS2. Therefore, TFC's income 
includes only $48 ($240x - $192x) of the rent received from LTS1.
    (3) Treatment of intangible and rental property. For purposes of 
determining whether the intangible property that TFC owns and the 
building that TFC is treated as owning under paragraph (b)(2) of this 
section is held in the production of passive income, the activities 
performed by TFC and its qualified affiliates with respect to the 
property are taken into account under paragraphs (c)(1)(ii) and (e) of 
this section. Because TFC is the common parent of the affiliated group 
(as determined under paragraph (e)(2) of this section) that includes 
LTS1 and LTS2, LTS1 and LTS2 are qualified affiliates of TFC and the 
activities of their officers and employees with respect to the 
intangible property and building are taken into account to determine 
whether the building and intangible property would be treated as passive 
assets.
    (d) Related person determination for purposes of section 
1297(b)(2)(C)--(1) General rule. For purposes of section 1297(b)(2)(C), 
interest, dividends, rents or royalties received or accrued by a look-
through subsidiary (and treated as received directly by a tested foreign 
corporation pursuant to section 1297(c) and paragraph (b)(2) of this 
section) are considered received or accrued from a related person only 
if the payor of the interest, dividend, rent or royalty is a related 
person (within the meaning of section 954(d)(3)) with respect to the 
look-through subsidiary, taking into account Sec.  1.1297-1(c)(1)(i)(D). 
Similarly, for purposes of 1297(b)(2)(C), interest, dividends, rents or 
royalties received or accrued by a look-through partnership (and treated 
as received directly by a tested foreign corporation pursuant to 
paragraph (b)(3) of this section) are considered received or accrued 
from a related person only if the payor of the interest, dividend, rent 
or royalty is a related person (within the meaning of section 954(d)(3)) 
with respect to the look-through partnership, taking into account Sec.  
1.1297-1(c)(1)(i)(D).
    (2) Example. The following example illustrates the rule of this 
paragraph (d).
    (i) Facts. USP is a domestic corporation that owns 30% of TFC. TFC 
directly owns 30% of the value of FS1 stock, and thus under paragraph 
(b) of this section is treated as owning 30% of FS1's assets and earning 
30% of FS1's gross income. The remaining FS1 stock is owned by an 
unrelated foreign person. FS1 directly owns 60% of the vote of FS2 stock 
and 20% of the value of FS2 stock. The remaining vote and value of FS2 
stock are owned by an unrelated foreign person. TFC, FS1, and FS2 are 
foreign corporations that are not controlled foreign corporations within 
the meaning of section 957(a). FS1 receives a $100x dividend from FS2.
    (ii) Results. Pursuant to section 1297(c) and paragraph (b)(2) of 
this section, TFC is treated as receiving directly $30x of the dividend 
income received by FS1. FS2 is a related person (within the meaning of 
section 954(d)(3)) with respect to FS1 for purposes of section 
1297(b)(2)(C) because FS1 owns more than 50% of the vote of FS2. FS2 is 
not a related person (within the meaning of section 954(d)(3)) with 
respect to TFC for purposes of

[[Page 733]]

section 1297(b)(2)(C) because TFC indirectly does not own more than 50% 
of the vote or value of the FS2 stock. Under paragraph (d)(1) of this 
section, for purposes of determining whether the dividend income 
received by FS1 is subject to the exception in section 1297(b)(2)(C) for 
purposes of testing the PFIC status of TFC, the dividend is treated as 
received from a related person because FS1 and FS2 are related persons 
within the meaning of section 1297(b)(2)(C). Therefore, to the extent 
the dividend income received by FS1 would be properly allocable to 
income of FS2 that is not passive income, the dividend income that TFC 
is treated as receiving under section 1297(c) and paragraph (b)(2)(ii) 
of this section is treated as non-passive income (as defined in Sec.  
1.1297-1(f)(4)).
    (e) Treatment of activities of certain look-through subsidiaries and 
look-through partnerships for purposes of certain exceptions--(1) 
General rule. An item of income received by a tested foreign corporation 
(including an amount treated as received or accrued pursuant to section 
1297(c) and paragraph (b)(2) or (b)(3) of this section) that would be 
passive income in the hands of the entity that actually received or 
accrued it is not passive if the item would be excluded from foreign 
personal holding company income under the following exceptions contained 
in section 954(c) that are based on whether the entity is engaged in the 
active conduct of a trade or business, determined by taking into account 
the activities performed by the officers and employees of the tested 
foreign corporation as well as activities performed by the officers and 
employees of any qualified affiliate of the tested foreign corporation--
    (i) Section 954(c)(1)(B) and Sec.  1.954-2(e)(1)(ii) and (3)(ii), 
(iii) and (iv);
    (ii) Section 954(c)(1)(C) and Sec.  1.954-2(f)(1)(ii) and 
(2)(iii)(D);
    (iii) Section 954(c)(1)(D) and Sec.  1.954-2(g)(2)(ii);
    (iv) Section 954(c)(2)(A) and Sec.  1.954-2(b)(6), (c), and (d);
    (v) Section 954(c)(2)(B) and Sec.  1.954-2(b)(2); and
    (vi) Section 954(c)(2)(C) and Sec.  1.954-2(h)(3)(ii).
    (2) Qualified affiliate. The term qualified affiliate means a 
corporation or a partnership that is included in an affiliated group 
that includes the tested foreign corporation. For purposes of this 
paragraph (e), the term affiliated group has the meaning provided in 
section 1504(a), except that--
    (i) The affiliated group is determined without regard to sections 
1504(a)(2)(A), (b)(2) and (b)(3);
    (ii) Subject to paragraph (e)(2)(iii) of this section, a partnership 
is treated as an includible corporation;
    (iii) The common parent of the affiliated group is not a domestic 
corporation or domestic partnership;
    (iv) Section 1504(a)(2)(B) is applied by substituting ``more than 50 
percent'' for ``at least 80 percent'';
    (v) A foreign corporation or foreign partnership must be the common 
parent of the affiliated group;
    (vi) Subject to paragraph (e)(2)(vii) of this section, a partnership 
is included as a member of the affiliated group if more than 50 percent 
of the value of its capital interests or profits interests is owned by 
one or more corporations or partnerships that are included in the 
affiliated group; and
    (vii) A corporation or a partnership that is not the common parent 
of an affiliated group is included in the affiliated group only if it 
would be a look-through subsidiary or look-through partnership, as 
applicable, of the common parent if the common parent were a tested 
foreign corporation.
    (3) Examples. The following examples illustrate the rule of this 
paragraph (e).
    (i) Example 1--(A) Facts. USP is a domestic corporation that 
directly owns 20% of the outstanding stock of FS1. The remaining 80% of 
the outstanding stock of FS1 is directly owned by a foreign person that 
is not related to USP. FS1 directly owns 100% of the value of the 
outstanding stock of FS2 and directly owns 80% of the value of the 
outstanding stock of FS3. The remaining 20% of the value of the 
outstanding stock of FS3 is directly owned by a foreign person that is 
not related to USP. FS2 directly owns 80% of the value of the 
outstanding stock of FS4. The remaining 20% of the value of the 
outstanding stock of FS4 is directly owned by a foreign person that is 
not related

[[Page 734]]

to USP. FS1, FS2, FS3 and FS4 are all organized in Country A and are not 
controlled foreign corporations within the meaning of section 957(a). 
FS4 owns real property that is leased to a person that is not a related 
person, but does not perform any activities. FS1 and FS2 also do not 
perform any activities. Officers and employees of FS3 in Country A 
perform activities with respect to the real property of FS4 that, if 
performed by officers or employees of FS4, would allow the rental income 
in the hands of FS4 to qualify for the exception from foreign personal 
holding company income in section 954(c)(2)(A) and Sec.  1.954-2(b)(6) 
and (c)(1)(ii).
    (B) Results--(1) Qualified affiliates. FS1 is the common parent of 
the affiliated group (as determined under paragraph (e)(2) of this 
section) that includes FS2, FS3, and FS4 because (i) FS1 owns more than 
50% by value of FS2 and FS3, (ii) FS2 owns more than 50% by value of 
FS4, and (iii) FS2, FS3, and FS4 would be look-through subsidiaries with 
respect to FS1 if FS1 were the tested foreign corporation. Accordingly, 
each of FS1, FS2, FS3 and FS4 are qualified affiliates (as determined 
under paragraph (e)(2) of this section) with respect to the other 
members of the group for purposes of determining whether FS1, FS2, FS3, 
or FS4 is a PFIC.
    (2) FS1 and FS2. Under this paragraph (e), for purposes of 
determining whether the rental income actually received by FS4 with 
respect to the real property owned and rented by FS4 and treated under 
section 1297(c) and paragraph (b)(2) of this section as received 
directly by FS1 or by FS2, respectively, is passive income for purposes 
of section 1297, the activities of FS3 are taken into account because 
FS3 is a qualified affiliate of FS1 and FS2, respectively. Thus, the 
exception in section 954(c)(2)(A) would apply, and the rental income 
treated as received by FS1 or by FS2, respectively, would be treated as 
non-passive income for purposes of determining whether FS1 or FS2 is a 
PFIC.
    (3) FS4. Under this paragraph (e), for purposes of determining 
whether the rental income received by FS4 with respect to the real 
property owned and rented by FS4 is passive income for purposes of 
section 1297, the activities of FS3 are taken into account, because FS3 
is a qualified affiliate of FS4. Thus, the exception in section 
954(c)(2)(A) would apply, and the rental income received by FS4 would be 
treated as non-passive income for purposes of determining whether FS4 is 
a PFIC.
    (ii) Example 2--(A) Facts. The facts are the same as in paragraph 
(e)(3)(i)(A) of this section (the facts in Example 1), except that FS2 
also owns real property that is leased to a person that is not a related 
person, and the officers and employees of FS2 in Country A engage in 
activities that would allow rental income received by FS2 with respect 
to its real property to qualify for the exception in section 
954(c)(2)(A) and Sec.  1.954-2(b)(6) and (c)(1)(iv), relying on the rule 
in Sec.  1.954-2(c)(2)(ii) that provides that an organization is 
substantial in relation to rents if active leasing expenses equal or 
exceed 25% of adjusted leasing profit. However, the active leasing 
expenses of FS1 are less than 25% of its adjusted leasing profit, which 
includes the rental income of FS4 treated as received directly by FS1 as 
well as the rental income of FS2 treated as received directly by FS1.
    (B) Results. Because FS2's rental income constitutes non-passive 
income as a result of the application of Sec.  1.1297-1(c)(1)(i)(A) and 
section 954(c)(2)(A), it is treated as non-passive income that FS1 is 
treated as receiving directly under section 1297(c) and paragraph (b)(2) 
of this section for purposes of determining whether FS1 is a PFIC, and 
accordingly, it is not necessary to rely on paragraph (e) of this 
section.
    (iii) Example 3--(A) Facts. The facts are the same as in paragraph 
(e)(3)(i)(A) of this section (the facts in Example 1), except that USP 
directly owns 60% of the outstanding stock of FS1.
    (B) Results. Under paragraph (e)(2)(iii) of this section, USP cannot 
be the common parent of an affiliated group for purposes of paragraph 
(e)(2) of this section because it is a domestic corporation. Because FS1 
is a foreign corporation, FS1 may be the common parent of an affiliated 
group for purposes of paragraph (e)(2) of this section. The results 
therefore are the same as in paragraph

[[Page 735]]

(e)(3)(i)(B) of this section (the results in Example 1).
    (f) Gain on disposition of a look-through subsidiary or look-through 
partnership--(1) [Reserved].
    (2) Amount of gain taken into account from disposition of look-
through subsidiary. For purposes of section 1297(a)(1), section 
1298(b)(3), and Sec.  1.1298-2, the amount of gain that is taken into 
account by a tested foreign corporation from the tested foreign 
corporation's direct disposition of stock of a look-through subsidiary, 
or an indirect disposition resulting from the disposition of stock of a 
look-through subsidiary by other look-through subsidiaries or by look-
through partnerships, is the residual gain. The residual gain equals the 
total gain recognized by the tested foreign corporation (including gain 
treated as recognized by the tested foreign corporation pursuant to 
section 1297(c) and paragraph (b)(2) or (b)(3) of this section) from the 
disposition of the stock of the look-through subsidiary reduced (but not 
below zero) by unremitted earnings. Unremitted earnings are the excess 
(if any) of the aggregate income (if any) taken into account by the 
tested foreign corporation pursuant to section 1297(c) and paragraph 
(b)(2) or (b)(3) of this section with respect to the stock of the 
disposed-of look-through subsidiary (including with respect to any other 
look-through subsidiary, to the extent it is owned by the tested foreign 
corporation indirectly through the disposed-of look-through subsidiary) 
over the aggregate dividends (if any) received by the tested foreign 
corporation from the disposed-of look-through subsidiary with respect to 
the stock, determined without regard to paragraph (c)(2)(i) of this 
section. For purposes of this paragraph (f)(2), the amount of gain 
derived from the disposition of stock of a look-through subsidiary and 
income of and dividends received from the look-through subsidiary is 
determined on a share-by-share basis under a reasonable method.
    (3) Characterization of residual gain as passive income. For 
purposes of section 1297(a)(1), section 1298(b)(3), and Sec.  1.1298-2, 
the residual gain from the direct or indirect disposition of stock of a 
look-through subsidiary is characterized as passive income or non-
passive income based on the relative amounts of passive assets and non-
passive assets (as defined in Sec.  1.1297-1(f)(5) and (3), 
respectively) of the disposed-of look-through subsidiary (and any other 
look-through subsidiary to the extent owned indirectly through the look-
through subsidiary) treated as held by the tested foreign corporation on 
the date of the disposition of the look-through subsidiary. For the 
purpose of this paragraph (f)(3), the relative amounts of passive assets 
and non-passive assets held by the look-through subsidiary are measured 
under the same method (value or adjusted bases) used to measure the 
assets of the tested foreign corporation for purposes of section 
1297(a)(2).
    (4) Gain taken into account from disposition of 25%-owned 
partnerships and look-through partnerships--(i) Section 954(c)(4) 
partnerships. The amount of gain derived from a tested foreign 
corporation's direct or indirect (through a look-through subsidiary or 
look-through partnership) disposition of partnership interests in a 
partnership described in section 954(c)(4) (treating the tested foreign 
corporation as if it were a controlled foreign corporation) that is 
taken into account by the tested foreign corporation for purposes of 
section 1297(a)(1), section 1298(b)(3), and Sec.  1.1298-2 is determined 
under section 954(c)(4).
    (ii) Look-through partnerships. In the case of a look-through 
partnership that is not described in paragraph (f)(4)(i) of this 
section, the principles of paragraphs (f)(2) and (f)(3) of this section 
apply to determine the amount and characterization of gain derived from 
a tested foreign corporation's direct or indirect (through a look-
through subsidiary or look-through partnership) disposition of 
partnership interests of the look-through partnership that is taken into 
account by the tested foreign corporation for purposes of section 
1297(a)(1), section 1298(b)(3), and Sec.  1.1298-2.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (f). For purposes of the examples in this paragraph (f)(5), 
USP is a domestic corporation, TFC and FS are foreign

[[Page 736]]

corporations that are not controlled foreign corporations within the 
meaning of section 957(a), and USP, TFC, and FS each has a single class 
of stock with 100 shares outstanding and a calendar taxable year.
    (i) Example 1--(A) Facts. USP owned 30% of the outstanding stock of 
TFC throughout Years 1, 2, 3, and 4. In Year 1, TFC purchased 5 shares 
of FS stock, representing 5% of the stock of FS, from an unrelated 
person. On the first day of Year 3, TFC purchased 20 shares of FS stock, 
representing 20% of the stock of FS, from an unrelated person. TFC owned 
25% of the outstanding stock of FS throughout Years 3 and 4. Before Year 
3, TFC did not include any amount in income with respect to FS under 
section 1297(c)(2). During Years 3 and 4, for purposes of section 
1297(a)(1), TFC included in income, in the aggregate, $40x of income 
with respect to FS under section 1297(c) and paragraph (b)(2) of this 
section. TFC did not receive dividends from FS during Year 1, 2, 3, or 
4. For purposes of section 1297(a)(2), TFC measures its assets based on 
their fair market value as provided under section 1297(e). On the last 
day of Year 4, TFC recognizes a loss with respect to the sale of 5 
shares of FS stock, and a $110x gain with respect to the sale of 20 
shares of FS stock. On the date of the sale, FS owns non-passive assets 
with an aggregate fair market value of $150x, and passive assets with an 
aggregate fair market value of $50x.
    (B) Results. For purposes of applying section 1297(a)(1) to TFC for 
Year 4, TFC must take into account $78x of residual gain, as provided by 
paragraph (f)(2) of this section, which equals the amount by which the 
$110x gain recognized on the sale of 20 shares in FS exceeds the 
aggregate pro rata share of $32x income ($40x x 20/25) taken into 
account by TFC with respect to the 20 shares in FS under section 1297(c) 
and paragraph (b)(2) of this section during Years 3 and 4. There is zero 
residual gain on the sale of 5 shares of FS stock because they were sold 
at a loss. Under paragraph (f)(3) of this section, $58.50x of the 
residual gain is non-passive income ($78x x ($150x/$200x)) and $19.50x 
is passive income ($78x x ($50x/$200x)).
    (ii) Example 2--(A) Facts. The facts are the same as in paragraph 
(f)(5)(i)(A) of this section (the facts in Example 1), except that in 
Year 1, TFC purchased 15 shares of FS stock, representing 15% of the 
stock of FS, from an unrelated person, and on the first day of Year 3, 
TFC purchased an additional 15 shares of FS stock, representing 15% of 
the stock of FS, from an unrelated person, and on the last day of Year 
4, TFC recognizes gain of $10x of the sale of 15 shares of FS stock 
purchased in Year 1, and gain of $60x on the sale of the other 15 shares 
of FS stock purchased in Year 3.
    (B) Results. For purposes of applying section 1297(a)(1) to TFC for 
Year 4, TFC must take into account $40x of residual gain with respect to 
the 15 shares acquired in Year 3, as provided by paragraph (f)(2) of 
this section, which equals the amount by which the $60x gain recognized 
on the sale of those 15 shares exceeds the aggregate pro rata share of 
$20x income ($40x x 15/30) taken into account by TFC with respect to 
those 15 shares in FS under section 1297(c)(2) during Years 3 and 4. 
There is zero residual gain on the sale of the 15 shares of FS stock 
acquired in Year 1 because the $10x of gain does not exceed the 
aggregate pro rata share of $20x income taken into account by TFC with 
respect to those 15 shares of FS under section 1297(c) and paragraph 
(b)(2) of this section. Under paragraph (f)(3) of this section, $30x of 
the residual gain is non-passive income ($40x x ($150x/$200x)) and $10x 
is passive income ($40x x ($50x/$200x)).
    (iii) Example 3--(A) Facts. The facts are the same as in paragraph 
(f)(5)(ii)(A) of this section (the facts in Example 2), except that TFC 
received, in the aggregate, $20x of dividends from FS during Year 2.
    (B) Results. The results are the same as in paragraph (f)(5)(ii)(B) 
of this section (the results in Example 2) with respect to the 15 shares 
acquired in Year 3 ($40x of residual gain attributable to the 15 shares 
acquired in Year 3). For purposes of applying section 1297(a)(1) to TFC 
for Year 4, TFC must also take into account $10x of residual gain with 
respect to the 15 shares acquired in Year 1. As provided by paragraph 
(f)(2) of this section, the residual gain equals

[[Page 737]]

the amount by which the $10x gain recognized on the sale of those 15 
shares exceeds the unremitted earnings with respect to those shares. The 
unremitted earnings with respect to the 15 shares acquired in Year 1 are 
$0x, the amount by which the pro rata share of aggregate income ($20x) 
taken into account by TFC with respect to those 15 shares of FS stock 
under section 1297(c) and paragraph (b)(2) of this section in Years 3 
and 4 exceeds the aggregate pro rata amount of dividends with respect to 
those 15 shares of FS stock ($20x) received by TFC from FS in Year 2. 
Total residual gain therefore is $50x ($40x + $10x). Under paragraph 
(f)(3) of this section, $37.50x of the residual gain is non-passive 
income ($50x x ($150x/$200x)) and $12.50x is passive income ($50x x 
($50x/$200x)).
    (g) Definitions. The following definitions apply for purposes of 
Sec.  1.1297-1 and this section:
    (1) Direct LTS obligation. The term direct LTS obligation has the 
meaning provided in paragraph (c)(1)(ii) of this section.
    (2) Indirect LTS obligation. The term indirect LTS obligation has 
the meaning provided in paragraph (c)(1)(ii) of this section.
    (3) Look-through subsidiary. The term look-through subsidiary means, 
with respect to a tested foreign corporation, a corporation as to which 
the asset test of paragraph (g)(3)(i) and the income test of paragraph 
(g)(3)(ii) of this section are satisfied on each measuring date during 
the taxable year of a tested foreign corporation. If a corporation 
satisfies both the asset test of paragraph (g)(3)(i) and the income test 
of paragraph (g)(3)(ii)(B) for some but not all measuring periods within 
the taxable year of a tested foreign corporation, the subsidiary is 
treated as a look-through subsidiary only for those measuring periods in 
which both tests are satisfied.
    (i) For purposes of section 1297(a)(2) and paragraph (b)(2)(i) of 
this section, a corporation at least 25 percent of the value of the 
stock of which is owned (as determined under paragraph (b)(1) of this 
section) by the tested foreign corporation on the measuring date (as 
defined in Sec.  1.1297-1(f)(1));
    (ii) For purposes of section 1297(a)(1), either--
    (A) For the taxable year, a corporation with respect to which the 
average percentage ownership (which is equal to the percentage ownership 
(by value) (as determined under paragraph (b)(1) of this section) on 
each measuring date during the taxable year, divided by the number of 
measuring dates in the year) by the tested foreign corporation during 
the tested foreign corporation's taxable year is at least 25 percent; or
    (B) For a measuring period (as defined in Sec.  1.1297-1(f)(2)), a 
corporation at least 25 percent of the value of the stock of which is 
owned (as determined under paragraph (b)(1) of this section) by the 
tested foreign corporation on the measuring date, provided all items of 
gross income of the corporation for each of the measuring periods in the 
taxable year for which the tested foreign corporation owns at least 25 
percent of the value (as determined under paragraph (b)(1) of this 
section) on the relevant measuring dates can be established; and
    (iii) For purposes of paragraph (f) of this section and Sec.  
1.1298-2, a corporation at least 25 percent of the value of the stock of 
which is owned (as determined under paragraph (b)(1) of this section) by 
the tested foreign corporation immediately before the disposition of 
stock of the corporation.
    (4) Look-through partnership--(i) In general. The term look-through 
partnership means, with respect to a tested foreign corporation--
    (A) A partnership that would be a look-through subsidiary (as 
defined in paragraph (g)(3) of this section) if such partnership were a 
corporation; or
    (B) A partnership that is not described in paragraph (g)(4)(i)(A) of 
this section, if the tested foreign corporation satisfies both of the 
active partner tests set forth in paragraphs (g)(4)(ii)(A) and (B) of 
this section on the measurement date or for the taxable year, as 
applicable, unless an election is made under paragraph (g)(4)(iii) of 
this section.
    (ii) Active partner test--(A) Partnership interest under asset test. 
For purposes of paragraph (b)(3)(i) of this section, paragraph 
(g)(4)(i)(B) of this section applies for the measuring period only if 
the

[[Page 738]]

tested foreign corporation would not be a PFIC if section 1297(a)(1) and 
(2) and the regulations thereunder were applied to the tested foreign 
corporation without regard to any partnership interest owned by the 
tested foreign corporation that is not a partnership described in 
paragraph (g)(4)(i)(A) of this section. For purposes of the preceding 
sentence, the active partner test is applied on the measurement date (as 
defined in Sec.  1.1297-1(f)(1)).
    (B) Partnership income under income test. For purposes of paragraph 
(b)(3)(ii) of this section, paragraph (g)(4)(i)(B) of this section 
applies for the taxable year of the tested foreign corporation or for a 
measuring period (as defined in Sec.  1.1297-1(f)(2)), as applicable, 
only if the tested foreign corporation would not be a PFIC if section 
1297(a)(1) and (2) and the regulations thereunder were applied to the 
tested foreign corporation without regard to any partnership interest 
owned by the tested foreign corporation that is not a partnership 
described in paragraph (g)(4)(i)(A) of this section. For purposes of the 
preceding sentence, the active partner test is applied on the measuring 
date (as defined in Sec.  1.1297-1(f)(1)) or for the taxable year, as 
applicable using the same period that was used under paragraph 
(g)(3)(ii) of this section.
    (iii) Election. For any taxable year, an election may be made with 
respect to a partnership described in paragraph (g)(4)(i)(B) of this 
section to not apply the provisions of this paragraph (g)(4) to such 
partnership.
    (iv) Examples. The following examples illustrate the rules of this 
paragraph (g)(4). For purposes of the examples in this paragraph 
(g)(4)(iv), TFC is a foreign corporation that is not a controlled 
foreign corporation; FC1 and FC2 are foreign corporations that are not 
controlled foreign corporations; FPS is a foreign partnership; TFC owns 
100% of the single class of stock of FC1 and FC2; FC2 owns 10% of the 
value of FPS, and the remaining 90% of FPS is owned by an unrelated 
foreign person; and TFC, FC1, FC2, and FPS are all calendar year 
taxpayers.
    (A) Example 1--(1) Facts. During Year 1, FC1 generated $100x of non-
passive income, FC2 generated $150x of non-passive income, and FPS 
generated $50x of income. On all of the measurement dates in Year 1, FC1 
has assets with a value of $1000x that FC1 uses in its trade or business 
generating non-passive income, FC2 has assets with a value of $1500x 
that FC2 uses in its trade or business generating non-passive income, 
and FPS has assets with a value of $500x.
    (2) Results--(i) Active partner test with respect to partnership 
interest. Pursuant to section 1297(c) and Sec.  1.1297-2(b)(2), TFC is 
treated as holding directly the assets held by FC1 and FC2. For purposes 
of the active partner test under paragraph (g)(4)(ii)(B) of this 
section, TFC does not take into account its interest in FPS to determine 
whether it would be a PFIC. Because 100% ($2500x/$2500x) of the assets 
of FC1 and FC2 that TFC is treated as directly holding, without taking 
into account the interest in FPS, generates non-passive income, TFC 
satisfies the active partner test in paragraph (g)(4)(ii)(B) of this 
section.
    (ii) Active partner test with respect to partnership income. 
Pursuant to section 1297(c) and paragraph (b)(2) of this section, TFC is 
treated as if it received directly its proportionate share of income of 
FC1 and FC2. For purposes of the active partner test under paragraph 
(g)(4)(ii)(A) of this section, TFC does not take into account its 
interest in FPS to determine whether it would be a PFIC. Because 100% 
($250x/$250x) of the income of FC1 and FC2 that TFC is treated as 
directly receiving, without taking into account the interest in FPS, is 
non-passive income, TFC satisfies the active partner test in paragraph 
(g)(4)(ii)(A) of this section with respect to the income of FPS.
    (iii) Qualification of look-through partnership. For purposes of 
paragraph (b)(3) of this section, FPS qualifies as a look-through 
partnership because TFC satisfies the active partner tests of both 
paragraphs (g)(4)(ii)(A) and (B) of this section. Unless an election is 
made not to treat FPS as a look-through partnership under paragraph 
(g)(4)(iii) of this section, TFC is treated as receiving directly $5x of 
income (10% x $50x), TFC's pro rata share of the income of FPS, the 
character of which is determined at the level of FPS for purposes of 
section 1297. In addition, TFC

[[Page 739]]

is treated as holding directly $50x of FPS's assets (10% x $500x), TFC's 
proportionate share of the assets held by FPS. The character of those 
assets as passive or non-passive is determined in the hands of FPS for 
purposes of section 1297.
    (B) Example 2--(1) Facts. During Year 1, FC1 generated $50x of 
passive income, FC2 earned $175x of non-passive income, and FPS 
generated $50x of income. On all of the measurement dates in Year 1, FC1 
has assets with a value of $1100x that produce passive income, and FC2 
has assets with a value of $900x that FC2 uses in its trade or business 
generating non-passive income. The value of FPS is $1000x taking into 
account its assets and liabilities.
    (2) Results--(i) Active partner test with respect to partnership 
interest. Pursuant to section 1297(c) and Sec.  1.1297-2(b)(2), TFC is 
treated as holding directly the assets held by FC1 and FC2. For purposes 
of the active partner test under paragraph (g)(4)(ii)(B) of this 
section, TFC does not take into account its interest in FPS to determine 
whether it would be a PFIC. Accordingly, 55% ($1100x/$2000x) of the 
assets that TFC is treated as directly holding, without taking into 
account the interest in FPS, generate passive income.
    (ii) Active partner test with respect to partnership income. 
Pursuant to section 1297(c) and Sec.  1.1297-2(b)(2), TFC is treated as 
if it received directly its proportionate share of income of FC1 and 
FC2. For purposes of the active partner test under paragraph 
(g)(4)(ii)(A) of this section, TFC does not take into account its 
interest in FPS to determine whether it would be a PFIC. Accordingly, 
77.8% ($175x/$225x) of the income that TFC is treated as directly 
receiving, without taking into account the interest in FPS, is non-
passive income.
    (iii) Failure to qualify as look-through partnership. TFC satisfies 
the active partner test in paragraph (g)(4)(ii)(A) of this section but 
does not satisfy the active partner test in paragraph (g)(4)(ii) (B) of 
this section. Therefore, FPS does not qualify as a look-though 
partnership. Under paragraph (b)(3)(iii) of this section, TFC's share of 
income with respect to FPS is treated as passive income for purposes of 
section 1297 and TFC's $100x interest (10% x $1000x) in FPS is treated 
as a passive asset for purposes of section 1297.
    (5) LTS debt. The term LTS debt has the meaning provided in 
paragraph (c)(1)(ii) of this section.
    (6) LTS lease. The term LTS lease has the meaning provided in 
paragraph (c)(1)(ii) of this section.
    (7) LTS license. The term LTS license has the meaning provided in 
paragraph (c)(1)(ii) of this section.
    (8) LTS obligation. The term LTS obligation has the meaning provided 
in paragraph (c)(1)(ii) of this section.
    (9) LTS stock. The term LTS stock has the meaning provided in 
paragraph (c)(1)(i) of this section.
    (10) Qualified affiliate. The term qualified affiliate has the 
meaning provided in paragraph (e)(2) of this section.
    (11) Residual gain. The term residual gain has the meaning provided 
in paragraph (f)(2) of this section.
    (12) TFC obligation. The term TFC obligation has the meaning 
provided in paragraph (c)(1)(ii) of this section.
    (13) Unremitted earnings. The term unremitted earnings has the 
meaning provided in paragraph (f)(2) of this section.
    (h) Applicability date. The rules of this section apply to taxable 
years of shareholders beginning on or after January 14, 2021. A 
shareholder may choose to apply such rules for any open taxable year 
beginning before January 14, 2021, provided that, with respect to a 
tested foreign corporation, the shareholder consistently applies the 
provisions of Sec.  1.1291-1(b)(8)(iv) and (b)(8)(v)(A), (B), (C), and 
(D) and Sec. Sec.  1.1297-1 (except that consistent treatment is not 
required with respect to Sec.  1.1297-1(c)(1)(i)(A)), 1.1298-2, and 
1.1298-4 for such year and all subsequent years.

[T.D. 9936, 86 FR 4557, Jan. 15, 2021, as amended at 86 FR 13648, Mar. 
10, 2021]



Sec.  1.1297-3  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a section 1297(e) PFIC.

    (a) In general. A shareholder (as defined in Sec.  1.1291-9(j)(3)) 
of a foreign corporation that is a section 1297(e) passive foreign 
investment company (PFIC) (as defined in Sec.  1.1291-9(j)(2)(v)) with 
respect to such shareholder, shall

[[Page 740]]

be treated for tax purposes as holding stock in a PFIC and therefore 
continues to be subject to taxation under section 1291 unless the 
shareholder makes a purging election under section 1298(b)(1). A purging 
election under section 1298(b)(1) is made under rules similar to the 
rules of section 1291(d)(2). Section 1291(d)(2) allows a shareholder to 
purge the continuing PFIC taint by either making a deemed sale election 
or a deemed dividend election.
    (b) Application of deemed sale election rules--(1) Eligibility to 
make the deemed sale election. A shareholder of a foreign corporation 
that is a section 1297(e) PFIC with respect to such shareholder may make 
a deemed sale election under section 1298(b)(1) by applying the rules of 
this paragraph (b).
    (2) Effect of the deemed sale election. A shareholder making the 
deemed sale election with respect to a section 1297(e) PFIC shall be 
treated as having sold all of its stock in the section 1297(e) PFIC for 
its fair market value on the controlled foreign corporation (CFC) 
qualification date, as defined in paragraph (d) of this section. A 
deemed sale under this section is treated as a disposition subject to 
taxation under section 1291. Thus, the gain from the deemed sale is 
taxed as an excess distribution received on the CFC qualification date. 
In the case of an election made by an indirect shareholder, the amount 
of gain to be recognized and taxed as an excess distribution is the 
amount of gain that the direct owner of the stock of the PFIC would have 
realized on an actual sale or disposition of the stock of the PFIC 
indirectly owned by the shareholder. Any loss realized on the deemed 
sale is not recognized. After the deemed sale election, the 
shareholder's stock with respect to which the election was made under 
this paragraph (b) shall not be treated as stock in a PFIC and the 
shareholder shall not be subject to taxation under section 1291 with 
respect to such stock unless the qualified portion of the shareholder's 
holding period ends, as determined under section 1297(e)(2), and the 
foreign corporation thereafter qualifies as a PFIC under section 
1297(a).
    (3) Time for making the deemed sale election. Except as provided in 
paragraph (e) of this section, a shareholder shall make the deemed sale 
election under this paragraph (b) and section 1298(b)(1) in the 
shareholder's original or amended return for the taxable year that 
includes the CFC qualification date (election year). If the deemed sale 
election is made in an amended return, the return must be filed by a 
date that is within three years of the due date, as extended under 
section 6081, of the original return for the election year.
    (4) Manner of making the deemed sale election. A shareholder makes 
the deemed sale election under this paragraph (b) by filing Form 8621, 
``Return by a Shareholder of a Passive Foreign Investment Company or 
Qualified Electing Fund'', with the return of the shareholder for the 
election year, reporting the gain as an excess distribution pursuant to 
section 1291(a) as if such sale occurred under section 1291(d)(2), and 
paying the tax and interest due on the excess distribution. A 
shareholder that makes the deemed sale election after the due date of 
the return (determined without regard to extensions) for the election 
year must pay additional interest, pursuant to section 6601, on the 
amount of underpayment of tax for that year. An electing shareholder 
that realizes a loss shall report the loss on Form 8621, but shall not 
recognize the loss.
    (5) Adjustments to basis. A shareholder that makes the deemed sale 
election increases its adjusted basis of the PFIC stock owned directly 
by the amount of gain recognized on the deemed sale. If the shareholder 
makes the deemed sale election with respect to a PFIC of which it is an 
indirect shareholder, the shareholder's adjusted basis of the stock or 
other property owned directly by the shareholder, through which 
ownership of the PFIC is attributed to the shareholder, is increased by 
the amount of gain recognized by the shareholder. In addition, solely 
for purposes of determining the subsequent treatment under the Internal 
Revenue Code (Code) and regulations of a shareholder of the stock of the 
PFIC, the adjusted basis of the direct owner of the stock of the PFIC is 
increased by the amount of gain recognized on the deemed sale. A 
shareholder shall not

[[Page 741]]

adjust the basis of any stock with respect to which the shareholder 
realized a loss on the deemed sale, which loss is not recognized under 
paragraph (b)(2) of this section.
    (6) Treatment of holding period. If a shareholder of a foreign 
corporation has made a deemed sale election, then, for purposes of 
applying sections 1291 through 1298 to such shareholder after the deemed 
sale, the shareholder's holding period in the stock of the foreign 
corporation begins on the CFC qualification date, without regard to 
whether the shareholder recognized gain on the deemed sale. For other 
purposes of the Code and regulations, this holding period rule does not 
apply.
    (c) Application of deemed dividend election rules--(1) Eligibility 
to make the deemed dividend election. A shareholder of a foreign 
corporation that is a section 1297(e) PFIC with respect to such 
shareholder may make the deemed dividend election under the rules of 
this paragraph (c). A deemed dividend election may be made by a 
shareholder whose pro rata share of the post-1986 earnings and profits 
of the PFIC attributable to the PFIC stock held on the CFC qualification 
date is zero.
    (2) Effect of the deemed dividend election. A shareholder making the 
deemed dividend election with respect to a section 1297(e) PFIC shall 
include in income as a dividend its pro rata share of the post-1986 
earnings and profits of the PFIC attributable to all of the stock it 
held, directly or indirectly on the CFC qualification date, as defined 
in paragraph (d) of this section. The deemed dividend is taxed under 
section 1291 as an excess distribution received on the CFC qualification 
date. The excess distribution determined under this paragraph (c) is 
allocated under section 1291(a)(1)(A) only to each day of the 
shareholder's holding period of the stock during which the foreign 
corporation qualified as a PFIC. For purposes of the preceding sentence, 
the shareholder's holding period of the PFIC stock ends on the day 
before the CFC qualification date. After the deemed dividend election, 
the shareholder's stock with respect to which the election was made 
under this paragraph (c) shall not be treated as stock in a PFIC and the 
shareholder shall not be subject to taxation under section 1291 with 
respect to such stock unless the qualified portion of the shareholder's 
holding period ends, as determined under section 1297(e)(2), and the 
foreign corporation thereafter qualifies as a PFIC under section 
1297(a).
    (3) Post-1986 earnings and profits defined--(i) In general--(A) 
General rule. For purposes of this section, the term post-1986 earnings 
and profits means the post-1986 undistributed earnings, within the 
meaning of section 902(c)(1) (determined without regard to section 
902(c)(3)), as of the day before the CFC qualification date, that were 
accumulated and not distributed in taxable years of the PFIC beginning 
after 1986 and during which it was a PFIC, without regard to whether the 
earnings related to a period during which the PFIC was a CFC.
    (B) Special rule. If the CFC qualification date is a day that is 
after the first day of the taxable year, the term post-1986 earnings and 
profits means the post-1986 undistributed earnings, within the meaning 
of section 902(c)(1) (determined without regard to section 902(c)(3)), 
as of the close of the taxable year that includes the CFC qualification 
date. For purposes of this computation, only earnings and profits 
accumulated in taxable years during which the foreign corporation was a 
PFIC shall be taken into account, but without regard to whether the 
earnings related to a period during which the PFIC was a CFC.
    (ii) Pro rata share of post-1986 earnings and profits attributable 
to shareholder's stock--(A) In general. A shareholder's pro rata share 
of the post-1986 earnings and profits of the PFIC attributable to the 
stock held by the shareholder on the CFC qualification date is the 
amount of post-1986 earnings and profits of the PFIC accumulated during 
any portion of the shareholder's holding period ending at the close of 
the day before the CFC qualification date and attributable, under the 
principles of section 1248 and the regulations under that section, to 
the PFIC stock held on the CFC qualification date.
    (B) Reduction for previously taxed amounts. A shareholder's pro rata 
share of the post-1986 earnings and profits of the PFIC does not include 
any amount

[[Page 742]]

that the shareholder demonstrates to the satisfaction of the 
Commissioner (in the manner provided in paragraph (c)(5)(ii) of this 
section) was, pursuant to another provision of the law, previously 
included in the income of the shareholder, or of another U.S. person if 
the shareholder's holding period of the PFIC stock includes the period 
during which the stock was held by that other U.S. person.
    (4) Time for making the deemed dividend election. Except as provided 
in paragraph (e) of this section, the shareholder shall make the deemed 
dividend election under this paragraph (c) and section 1298(b)(1) in the 
shareholder's original or amended return for the taxable year that 
includes the CFC qualification date (election year). If the deemed 
dividend election is made in an amended return, the return must be filed 
by a date that is within three years of the due date, as extended under 
section 6081, of the original return for the election year.
    (5) Manner of making the deemed dividend election--(i) In general. A 
shareholder makes the deemed dividend election by filing Form 8621 and 
the attachment to Form 8621 described in paragraph (c)(5)(ii) of this 
section with the return of the shareholder for the election year, 
reporting the deemed dividend as an excess distribution pursuant to 
section 1291(a)(1), and paying the tax and interest due on the excess 
distribution. A shareholder that makes the deemed dividend election 
after the due date of the return (determined without regard to 
extensions) for the election year must pay additional interest, pursuant 
to section 6601, on the amount of underpayment of tax for that year.
    (ii) Attachment to Form 8621. The shareholder must attach a schedule 
to Form 8621 that demonstrates the calculation of the shareholder's pro 
rata share of the post-1986 earnings and profits of the PFIC that is 
treated as distributed to the shareholder on the CFC qualification date, 
pursuant to this paragraph (c). If the shareholder is claiming an 
exclusion from its pro rata share of the post-1986 earnings and profits 
for an amount previously included in its income or the income of another 
U.S. person, the shareholder must include the following information:
    (A) The name, address and taxpayer identification number of each 
U.S. person that previously included an amount in income, the amount 
previously included in income by each such U.S. person, the provision of 
law, pursuant to which the amount was previously included in income, and 
the taxable year or years of inclusion of each amount.
    (B) A description of the transaction pursuant to which the 
shareholder acquired, directly or indirectly, the stock of the PFIC from 
another U.S. person, and the provision of law pursuant to which the 
shareholder's holding period includes the period the other U.S. person 
held the CFC stock.
    (6) Adjustments to basis. A shareholder that makes the deemed 
dividend election increases its adjusted basis of the stock of the PFIC 
owned directly by the shareholder by the amount of the deemed dividend. 
If the shareholder makes the deemed dividend election with respect to a 
PFIC of which it is an indirect shareholder, the shareholder's adjusted 
basis of the stock or other property owned directly by the shareholder, 
through which ownership of the PFIC is attributed to the shareholder, is 
increased by the amount of the deemed dividend. In addition, solely for 
purposes of determining the subsequent treatment under the Code and 
regulations of a shareholder of the stock of the PFIC, the adjusted 
basis of the direct owner of the stock of the PFIC is increased by the 
amount of the deemed dividend.
    (7) Treatment of holding period. If the shareholder of a foreign 
corporation has made a deemed dividend election, then, for purposes of 
applying sections 1291 through 1298 to such shareholder after the deemed 
dividend, the shareholder's holding period of the stock of the foreign 
corporation begins on the CFC qualification date. For other purposes of 
the Code and regulations, this holding period rule does not apply.
    (8) Coordination with section 959(e). For purposes of section 
959(e), the entire deemed dividend is treated as having been included in 
gross income under section 1248(a).

[[Page 743]]

    (d) CFC qualification date. For purposes of this section, the CFC 
qualification date is the first day on which the qualified portion of 
the shareholder's holding period in the section 1297(e) PFIC begins, as 
determined under section 1297(e).
    (e) Late purging elections requiring special consent--(1) In 
general. This section prescribes the exclusive rules under which a 
shareholder of a section 1297(e) PFIC may make a section 1298(b)(1) 
election after the time prescribed in paragraph (b)(3) or (c)(4) of this 
section for making a deemed sale or a deemed dividend election has 
elapsed (late purging election). Therefore, a shareholder may not seek 
such relief under any other provisions of the law, including Sec.  
301.9100-3 of this chapter. A shareholder may request the consent of the 
Commissioner to make a late deemed sale or deemed dividend election for 
the taxable year of the shareholder that includes the CFC qualification 
date provided the shareholder satisfies the requirements set forth in 
this paragraph (e). The Commissioner may, in his discretion, grant 
relief under this paragraph (e) only if--
    (i) In a case where the shareholder is requesting consent under this 
paragraph (e) after December 31, 2005, the shareholder requests such 
consent before a representative of the Internal Revenue Service (IRS) 
raises upon audit the PFIC status of the foreign corporation for any 
taxable year of the shareholder;
    (ii) The shareholder has agreed in a closing agreement with the 
Commissioner, described in paragraph (e)(3) of this section, to 
eliminate any prejudice to the interests of the U.S. government, as 
determined under paragraph (e)(2) of this section, as a consequence of 
the shareholder's inability to file amended returns for its taxable year 
in which the CFC qualification date falls or an earlier closed taxable 
year in which the shareholder has taken a position that is inconsistent 
with the treatment of the foreign corporation as a PFIC; and
    (iii) The shareholder satisfies the procedural requirements set 
forth in paragraph (e)(3) of this section.
    (2) Prejudice to the interests of the U.S. government. The interests 
of the U.S. government are prejudiced if granting relief would result in 
the shareholder having a lower tax liability (other than by a de minimis 
amount), taking into account applicable interest charges, for the 
taxable year that includes the CFC qualification date (or a prior 
taxable year in which the taxpayer took a position on a return that was 
inconsistent with the treatment of the foreign corporation as a PFIC) 
than the shareholder would have had if the shareholder had properly made 
the section 1298(b)(1) election in the time prescribed in paragraph 
(b)(2) or (c)(3) of this section (or had not taken a position in a 
return for an earlier year that was inconsistent with the status of the 
foreign corporation as a PFIC). The time value of money is taken into 
account for purposes of this computation.
    (3) Procedural requirements--(i) In general. The amount due with 
respect to a late purging election is determined in the same manner as 
if the purging election had been timely filed. However, the shareholder 
is also liable for interest on the amount due, pursuant to section 6601, 
determined for the period beginning on the due date (without extensions) 
for the taxpayer's income tax return for the year in which the CFC 
qualification date falls and ending on the date the late purging 
election is filed with the IRS.
    (ii) Filing instructions. A late purging election is made by filing 
a completed Form 8621-A, ``Return by a Shareholder Making Certain Late 
Elections to End Treatment as a Passive Foreign Investment Company.''
    (4) Time and manner of making late election--(i) Time for making a 
late purging election. A shareholder may make a late purging election in 
the manner provided in paragraph (e)(4)(ii) of this section at any time. 
The date the election is filed with the IRS will determine the amount of 
interest due under paragraph (e)(3) of this section.
    (ii) Manner of making a late purging election. A shareholder makes a 
late purging election by completing Form 8621-A in the manner required 
by that form and this section and filing that form with the Internal 
Revenue Service, DP 8621-A, Ogden, UT 84201.

[[Page 744]]

    (5) Multiple late elections--(i) General rule. A shareholder of a 
foreign corporation may make multiple late purging elections under the 
rules of this paragraph (e) or Sec.  1.1298-3(e) to the same extent such 
multiple purging elections could have been made if those purging 
elections had been filed within the time prescribed under paragraph 
(b)(3) or (c)(4) of this section or Sec.  1.1298-3(b)(3) or (c)(4).
    (ii) Example. The rule of this paragraph (e)(5) is illustrated by 
the following example:

    Example. (i) In 1991, X, a U.S. person, acquired a five percent 
interest in the stock of FC, a controlled foreign corporation, as 
defined in section 957(a). In years 1991, 1992, 1995, 1996 and 1997, FC 
satisfied either the income test or the asset test of section 1297(a). X 
did not make a QEF election with regard to FC. In years 1993 and 1994, 
FC did not satisfy either the income or the asset test of section 
1297(a). In 1998, X acquired additional stock in FC such that X was a 
U.S. shareholder (as defined in section 951(b)) of FC.
    (ii) Because FC qualified as a PFIC in 1991, FC will be treated as a 
PFIC with respect to all of the stock held by X, under the ``once a PFIC 
always a PFIC'' rule of section 1298(b)(1), unless X makes an election 
to purge the PFIC taint. Because X ceased to satisfy either the income 
or asset test in 1993, X could have made an election under Sec.  1.1298-
3 to purge the PFIC taint of FC for that year if X had filed such an 
election within the time prescribed under Sec.  1.1298-3(b)(3) or 
(c)(4). If X had done so, the stock X held in FC would not be treated as 
stock in a PFIC for the years 1993 and 1994. Because X became a U.S. 
shareholder of FC in 1998, X then could have made a deemed sale or 
deemed dividend election under this section to purge the PFIC taint of 
FC for the years 1995 through 1997 if X had filed within the time 
prescribed under paragraph (b)(3) or (c)(4) of this section. 
Accordingly, X may make a late purging election to purge the PFIC taint 
of FC for the years 1991 and 1992 under the rules of Sec.  1.1298-3(e) 
and may also make a late purging election to purge the PFIC taint of FC 
for the years 1995 through 1997 under the rules of this paragraph (e).

    (f) Effective/applicability date. The rules of this section are 
applicable as of December 8, 2005.

[T.D. 9360, 72 FR 54821, Sept. 27, 2007, as amended at 72 FR 58758, Oct. 
17, 2007]



Sec.  1.1297-4  Qualifying insurance corporation.

    (a) Scope. This section provides rules for determining whether a 
foreign corporation is a qualifying insurance corporation for purposes 
of section 1297(f). Paragraph (b) of this section provides the general 
rule for determining whether a foreign corporation is a qualifying 
insurance corporation. Paragraph (c) of this section describes the 25 
percent test in section 1297(f)(1)(B). Paragraph (d) of this section 
contains rules for applying the alternative facts and circumstances test 
in section 1297(f)(2). Paragraph (e) of this section contains rules 
limiting the amount of applicable insurance liabilities for purposes of 
the 25 percent test described in paragraph (c) of this section and the 
alternative facts and circumstances test described in paragraph (d) of 
this section. Paragraph (f) of this section provides definitions that 
apply for purposes of this section. Paragraph (g) of this section 
provides the applicability date of this section.
    (b) Qualifying insurance corporation. For purposes of section 
1297(b)(2)(B), this section, and Sec. Sec.  1.1297-5 and 1.1297-6, with 
respect to a U.S. person, a qualifying insurance corporation (QIC) is a 
foreign corporation that--
    (1) Is an insurance company as defined in section 816(a) that would 
be subject to tax under subchapter L if the corporation were a domestic 
corporation; and
    (2) Satisfies--
    (i) The 25 percent test described in paragraph (c) of this section; 
or
    (ii) The requirements for an election to apply the alternative facts 
and circumstances test as described in paragraph (d) of this section and 
a United States person has made an election as described in paragraph 
(d)(5) of this section.
    (c) 25 percent test. A foreign corporation satisfies the 25 percent 
test if the amount of its applicable insurance liabilities exceeds 25 
percent of its total assets. This determination is made on the basis of 
the applicable insurance liabilities and total assets reported on the 
corporation's applicable financial statement for the applicable 
reporting period.

[[Page 745]]

    (d) Election to apply the alternative facts and circumstances test--
(1) In general. A United States person that owns stock in a foreign 
corporation that fails to qualify as a QIC solely because of the 25 
percent test may elect to treat the stock of the corporation as stock of 
a QIC if the foreign corporation--
    (i) Is predominantly engaged in an insurance business as described 
in paragraph (d)(2) of this section;
    (ii) Failed to satisfy the 25 percent test solely due to runoff-
related circumstances, as described in paragraph (d)(3) of this section, 
or rating-related circumstances, as described in paragraph (d)(4) of 
this section; and
    (iii) Reports an amount of applicable insurance liabilities that is 
at least 10 percent of the amount of the total assets on the 
corporation's applicable financial statement for the applicable 
reporting period.
    (2) Predominantly engaged in an insurance business--(i) In general. 
A foreign corporation is not considered predominantly engaged in an 
insurance business in any taxable year unless more than half of the 
business of the foreign corporation is the issuing of insurance or 
annuity contracts or the reinsuring of risks underwritten by insurance 
companies. This determination is made based on the character of the 
business actually conducted in the taxable year. The fact that a foreign 
corporation has been holding itself out as an insurer for a long period 
is not determinative of whether the foreign corporation is predominantly 
engaged in an insurance business.
    (ii) Facts and circumstances. Facts and circumstances to consider in 
determining whether a foreign corporation is predominantly engaged in an 
insurance business include (but are not limited to)--
    (A) Claims payment patterns for the current year and prior years;
    (B) The foreign corporation's loss exposure as calculated for a 
regulator or for a credit rating agency, or, if those are not 
calculated, for internal pricing purposes;
    (C) The percentage of gross receipts constituting premiums for the 
current and prior years; and
    (D) The number and size of insurance contracts issued or taken on 
through reinsurance by the foreign corporation.
    (iii) Examples of facts indicating a foreign corporation is not 
predominantly engaged in an insurance business. Examples of facts that 
may indicate a foreign corporation is not predominantly engaged in an 
insurance business include (but are not limited to)--
    (A) A small overall number of insured risks with low likelihood but 
large potential costs;
    (B) Employees and agents of the foreign corporation focused to a 
greater degree on investment activities than underwriting activities; 
and
    (C) Low loss exposure.
    (3) Runoff-related circumstances. During the annual reporting period 
covered by the applicable financial statement, a foreign corporation 
fails to satisfy the 25 percent test solely due to runoff-related 
circumstances only if the corporation--
    (i) Was engaged in the process of terminating its pre-existing, 
active conduct of an insurance business (within the meaning of section 
1297(b)(2)(B)) under the supervision of its applicable insurance 
regulatory body or pursuant to any court-ordered receivership proceeding 
(liquidation, rehabilitation, or conservation) and fails to satisfy the 
25 percent test because the corporation is required to hold additional 
assets due to its business being in runoff;
    (ii) Has no plan or intention to enter into, and did not issue or 
enter into, any insurance, annuity, or reinsurance contract, other than 
a contractually obligated renewal of an existing insurance contract or a 
reinsurance contract pursuant to and consistent with the termination of 
its active conduct of an insurance business; and
    (iii) Made payments during the annual reporting period covered by 
the applicable financial statement as required to satisfy claims under 
insurance, annuity, or reinsurance contracts.
    (4) Rating-related circumstances. A foreign corporation fails to 
satisfy the 25 percent test solely due to rating-related circumstances 
only if--
    (i) The 25 percent test is not met due to capital and surplus 
amounts that a generally recognized credit rating

[[Page 746]]

agency considers necessary for the foreign corporation to obtain a 
public rating with respect to its financial strength, and the foreign 
corporation maintains such capital and surplus in order to obtain the 
minimum credit rating necessary for the annual reporting period by the 
foreign corporation to be able to write the business in its regulatory 
or board supervised business plan. This paragraph (c)(4)(i) applies only 
if the foreign corporation is a mortgage insurance company (as defined 
in paragraph (f)(10) of this section) or if more than half of the 
foreign corporation's net written premiums for the annual reporting 
period (or the average of the net written premiums for the foreign 
corporation's annual reporting period and the two immediately preceding 
annual reporting periods) are from insurance coverage against the risk 
of loss from a catastrophic loss event (that is, a low frequency but 
high severity loss event); or
    (ii) The foreign corporation is a financial guaranty insurance 
company (as defined in paragraph (f)(5) of this section).
    (5) Election--(i) In general. A United States person may make the 
election under section 1297(f)(2) for its taxable year if the foreign 
corporation directly provides the United States person a statement, 
signed by a responsible officer of the foreign corporation or an 
authorized representative of the foreign corporation, or the foreign 
corporation (or its foreign parent corporation on its behalf) makes a 
publicly available statement (such as in a public filing, disclosure 
statement, or other notice provided to United States persons that are 
shareholders of the foreign corporation) that it satisfied the 
requirements of section 1297(f)(2) and paragraph (d)(1) of this section 
during the foreign corporation's applicable reporting period. However, a 
United States person may not rely upon any statement by the foreign 
corporation (or its foreign parent corporation) to make the election 
under section 1297(f)(2) if the shareholder knows or has reason to know 
based on reasonably accessible information that the statement made by 
the foreign corporation (or its foreign parent corporation) was 
incorrect.
    (ii) Information provided by foreign corporation. In addition to a 
statement that the foreign corporation satisfied the requirements of 
section 1297(f)(2) and paragraph (d)(1) of this section, the statement 
described in paragraph (d)(5)(i) of this section also must include:
    (A) The ratio of applicable insurance liabilities to total assets 
for the applicable reporting period; and
    (B) A statement indicating whether the failure to satisfy the 25 
percent test described in paragraph (c) of this section was the result 
of runoff-related or rating-related circumstances, along with a brief 
description of those circumstances.
    (iii) Time and manner for making the election. Except as provided in 
paragraph (d)(5)(iv), the election described in paragraph (d)(1) of this 
section may be made by a United States person who owns stock in the 
foreign corporation by completing the appropriate part of Form 8621 (or 
successor form) for each taxable year of the United States person in 
which the election applies. A United States person must attach the Form 
8621 (or successor form) to its original or amended Federal income tax 
return for the taxable year of the United States person to which the 
election relates. A United States person can attach the Form 8621 (or 
successor form) to an amended return for the taxable year of the United 
States person to which the election relates if the United States person 
can demonstrate the reason for not filing the form with its original 
return was due to reasonable cause.
    (iv) Deemed election for small shareholders in publicly traded 
companies--(A) In general. A United States person who owns publicly 
traded stock in a foreign corporation will be deemed to make the 
election under section 1297(f)(2) with respect to the foreign 
corporation and its subsidiaries if the following requirements are 
satisfied:
    (1) The stock of the foreign corporation that is owned by the United 
States person (including stock owned indirectly) has a value of $25,000 
or less ($50,000 or less in the case of a joint return) on the last day 
of the United States person's taxable year and on any day during the 
taxable year on

[[Page 747]]

which the United States person disposes of stock of the foreign 
corporation; and
    (2) If the United States person owns stock of the foreign 
corporation indirectly through a domestic partnership, domestic trust, 
domestic estate, or S corporation (a domestic pass-through entity), the 
stock of the foreign corporation that is owned by the domestic pass-
through entity has a value of $25,000 or less on the last day of the 
taxable year of the domestic pass-through entity that ends with or 
within the United States person's taxable year and on any day during the 
taxable year of the domestic pass-through entity on which it disposes of 
stock of the foreign corporation.
    (B) Publicly traded stock. For the purpose of paragraph 
(d)(5)(iv)(A) of this section, stock is publicly traded if it would be 
treated as marketable stock within the meaning of section 1296(e) and 
Sec.  1.1296-2 (without regard to Sec.  1.1296-2(d)) if the election 
under section 1297(f)(2) is not made.
    (v) Options. If a United States person is considered to own stock in 
a foreign corporation by reason of holding an option, the United States 
person may make the election under section 1297(f)(2) (or may be deemed 
to make an election under paragraph (d)(5)(iv) of this section) with 
respect to the foreign corporation or its subsidiaries in the same 
manner as if the United States person owned stock in the foreign 
corporation.
    (6) Stock ownership. For purposes of this section, ownership of 
stock in a foreign corporation means either direct ownership of such 
stock or indirect ownership determined using the rules specified in 
Sec.  1.1291-1(b)(8) (but without regard to the 50 percent ownership 
requirement of Sec.  1.1291-1(b)(8)(ii)(A)).
    (e) Rules limiting the amount of applicable insurance liabilities--
(1) In general. For purposes of determining whether a foreign 
corporation satisfies the 25 percent test described in paragraph (c) of 
this section or the 10 percent test described in paragraph (d)(1)(iii) 
of this section, the rules of this paragraph (e) apply to limit the 
amount of applicable insurance liabilities of the foreign corporation.
    (2) General limitation on applicable insurance liabilities. The 
amount of applicable insurance liabilities may not exceed any of the 
amounts described in paragraphs (e)(2)(i) to (iii) of this section. This 
paragraph (e)(2) applies after applying paragraph (e)(3) of this 
section.
    (i) The amount of applicable insurance liabilities of the foreign 
corporation shown on any financial statement that the foreign 
corporation filed or was required to file with its applicable insurance 
regulatory body for the financial statement's applicable reporting 
period;
    (ii) If the foreign corporation's applicable financial statement is 
prepared on the basis of either GAAP or IFRS, the amount of the foreign 
corporation's applicable insurance liabilities determined on the basis 
of its applicable financial statement, whether or not the foreign 
corporation files the statement with its applicable insurance regulatory 
body; or
    (iii) The amount of applicable insurance liabilities required for 
the foreign corporation by the applicable law or regulation of the 
jurisdiction of the applicable insurance regulatory body at the end of 
the applicable reporting period (or a lesser amount of applicable 
insurance liabilities, if the foreign corporation is holding a lesser 
amount as a permitted practice of the applicable regulatory body).
    (3) Discounting. If an applicable financial statement or a financial 
statement described in paragraph (e)(2) of this section is prepared on 
the basis of an accounting method other than GAAP or IFRS and does not 
discount applicable insurance liabilities on an economically reasonable 
basis, the amount of applicable insurance liabilities may not exceed the 
amount of applicable insurance liabilities on the financial statement 
reduced by applying the discounting methods that would apply under 
either GAAP or IFRS to the insurance or annuity contracts to which the 
applicable insurance liabilities at issue relate. The foreign 
corporation may choose whether to apply either GAAP or IFRS discounting 
methods for this purpose.
    (4) [Reserved]
    (5) [Reserved]

[[Page 748]]

    (f) Definitions. The following definitions apply for purposes of 
this section.
    (1) Applicable financial statement. The term applicable financial 
statement means the foreign corporation's financial statement prepared 
for financial reporting purposes, listed in paragraphs (f)(1)(i) through 
(iii) of this section, and that has the highest priority. The financial 
statements are, in order of descending priority--
    (i) GAAP statements. A financial statement that is prepared in 
accordance with GAAP;
    (ii) IFRS statements. A financial statement that is prepared in 
accordance with IFRS; or
    (iii) Regulatory annual statement. A financial statement required to 
be filed with the applicable insurance regulatory body.
    (iv) [Reserved]
    (2) Applicable insurance liabilities--(i) In general. The term 
applicable insurance liabilities means, with respect to any life or 
property and casualty insurance business--
    (A) Reported losses (which are expected payments to policyholders 
for sustained losses related to insured events under an insurance 
contract that have occurred and have been reported to, but not paid by, 
the insurer as of the financial statement end date), and incurred but 
not reported losses (which are expected payments to policyholders for 
sustained losses relating to insured events under an insurance contract 
that have occurred but have not been reported to the insurer as of the 
financial statement end date);
    (B) Unpaid loss adjustment expenses (including reasonable estimates 
of anticipated loss adjustment expenses) associated with investigating, 
defending, settling, and adjusting paid losses, unpaid reported losses, 
and incurred but not reported losses (of the type described in paragraph 
(f)(2)(i)(A) of this section) as of the financial statement end date; 
and
    (C) The aggregate amount of reserves (excluding deficiency, 
contingency, or unearned premium reserves) held as of the financial 
statement end date to mature or liquidate potential, future claims for 
death, annuity, or health benefits that may become payable under 
contracts providing, at the time the reserve is computed, coverage for 
mortality or morbidity risks;
    (D) Provided, however, that--
    (1) No item or amount shall be taken into account more than once in 
determining applicable insurance liabilities;
    (2) The applicable insurance liabilities eligible to be taken into 
account in applying this paragraph (f)(2) include only the applicable 
insurance liabilities of the foreign corporation whose QIC status is 
being determined; and
    (3) [Reserved]
    (ii) Amounts not specified in paragraph (f)(2)(i) of this section. 
Amounts not specified in paragraph (f)(2)(i) of this section are not 
applicable insurance liabilities. For example, the term applicable 
insurance liability does not include any amount held by an insurance 
company as a deposit liability that is not an insurance liability, such 
as a funding agreement, a guaranteed investment contract, premium or 
other deposit funds, structured settlements, or any other substantially 
similar contract issued by an insurance company. The term applicable 
insurance liabilities also does not include the amount of any reserve 
for a life insurance or annuity contract the payments of which do not 
depend on the life or life expectancy of one or more individuals.
    (3) Applicable insurance regulatory body. The term applicable 
insurance regulatory body means the entity that has been established by 
law to license or authorize a corporation to engage in an insurance 
business, to regulate insurance company solvency, and, in the case of an 
applicable financial statement described in paragraph (f)(1)(iii), is 
the entity to which the applicable financial statement is provided.
    (4) Applicable reporting period. The term applicable reporting 
period is the last annual reporting period for a financial statement 
ending with or within the taxable year of a U.S. person owning stock in 
a foreign corporation, within the meaning of paragraph (d)(6) of this 
section.
    (5) Financial guaranty insurance company. The term financial 
guaranty insurance company means any insurance

[[Page 749]]

company whose sole business is to insure or reinsure only the type of 
business written by, or that would be permitted to be written by, a 
company licensed under, and compliant with, a U.S. state law, modeled 
after the Financial Guaranty Insurance Guideline as established by 
National Association of Insurance Companies, that specifically governs 
the licensing and regulation of financial guaranty insurance companies.
    (6) Financial statements--(i) In general. The term financial 
statement means a statement prepared for a legal entity for a reporting 
period in accordance with the rules of a financial accounting or 
statutory accounting standard that includes a complete balance sheet, 
statement of income, and a statement of cash flows (or equivalent 
statements under the applicable reporting standard).
    (ii) [Reserved]
    (iii) [Reserved]
    (7) Generally accepted accounting principles or GAAP. The term 
generally accepted accounting principles or GAAP means United States 
generally accepted accounting principles described in standards 
established and made effective by the Financial Accounting Standards 
Board.
    (8) Insurance business. For purposes of this section, Sec.  1.1297-
5, and Sec.  1.1297-6, insurance business means the business of issuing 
insurance and annuity contracts and the reinsuring of risks underwritten 
by insurance companies, together with those investment activities and 
administrative services that are required to support (or are 
substantially related to) insurance, annuity, or reinsurance contracts 
issued or entered into by the foreign corporation.
    (9) International financial reporting standards or IFRS. The term 
international financial reporting standards or IFRS means accounting 
standards established and made effective by the International Accounting 
Standards Board.
    (10) Mortgage insurance company. For purposes of this section, 
mortgage insurance company means any insurance company whose sole 
business is to insure or reinsure against a lender's loss of all or a 
portion of the principal amount of a mortgage loan upon default of the 
mortgagor.
    (11) Total assets. For purposes of section 1297(f) and this section, 
a foreign corporation's total assets are theaggregate value of the real 
property and personal property that the foreign corporation reports on 
its applicable financial statement as of thefinancial statement end 
date.
    (g) Applicability date. The rules of this section apply to taxable 
years of shareholders beginning on or after January 14, 2021. A 
shareholder may choose to apply such rules for any open taxable year 
beginning after December 31, 2017 and before January 14, 2021, provided 
that, with respect to a tested foreign corporation, it consistently 
applies the provisions of this section and Sec.  1.1297-6 for such year 
and all subsequent years.

[T.D. 9936, 86 FR 4571, Jan. 15, 2021, as amended at 86 FR 13648, Mar. 
10, 2021]



Sec.  1.1297-5  [Reserved]



Sec.  1.1297-6  Exception from the definition of passive income 
for active insurance income.

    (a) Scope. This section provides rules pertaining to the exception 
from passive income under section 1297(b)(2)(B) for income derived in 
the active conduct of an insurance business and rules related to certain 
income of a qualifying domestic insurance corporation. Paragraph (b) of 
this section provides a general rule that excludes from passive income 
certain income of a qualifying insurance corporation (QIC), as defined 
in Sec.  1.1297-4(b), and certain income of a qualifying domestic 
insurance corporation. Paragraph (c) of this section provides rules 
excluding certain assets for purposes of the passive asset test under 
section 1297(a)(2). Paragraph (d) of this section provides rules 
concerning the treatment of income and assets of certain look-through 
subsidiaries and look-through partnerships of a QIC. Paragraph (e) of 
this section provides rules relating to qualifying domestic insurance 
corporations. Paragraph (f) of this section provides the applicability 
date of this section.
    (b) Exclusion from passive income of active insurance income. For 
purposes of section 1297 and Sec.  1.1297-1, passive income does not 
include--

[[Page 750]]

    (1) Income that a QIC derives in the active conduct of an insurance 
business (within the meaning of section 1297(b)(2)(B)); and
    (2) Income of a qualifying domestic insurance corporation.
    (c) Exclusion of assets for purposes of the passive asset test under 
section 1297(a)(2). For purposes of section 1297 and Sec.  1.1297-1, 
passive assets (as defined in Sec.  1.1297-1(f)(5)), do not include--
    (1) Assets of a QIC available to satisfy liabilities of the QIC 
related to its insurance business (as defined in Sec.  1.1297-4(f)(8)), 
if the QIC is engaged in the active conduct of an insurance business 
(within the meaning of section 1297(b)(2)(B)); and
    (2) Assets of a qualifying domestic insurance corporation.
    (d) Treatment of income and assets of certain look-through 
subsidiaries and look-through partnerships for purposes of the section 
1297(b)(2)(B) exception--(1) General rule. For purposes of applying 
paragraphs (b)(1) and (c)(1) of this section, a QIC is treated as 
receiving the income or holding the assets of a look-through subsidiary 
or look-through partnership to the extent provided in section 1297(c) 
and Sec.  1.1297-2(b)(2) or Sec.  1.1297-2(b)(3). Subject to the 
limitation of paragraph (d)(2) of this section, a QIC's proportionate 
share of the income or assets of a look-through subsidiary or look-
through partnership may be treated as earned or held directly by the 
QIC, and thus as non-passive under paragraphs (b)(1) and (c)(1) of this 
section, if the requirements of those paragraphs are satisfied.
    (2) Limitation. A QIC that is engaged in the active conduct of an 
insurance business (within the meaning of section 1297(b)(2)(B)) may not 
treat its proportionate share of the income or assets of a look-through 
subsidiary or look-through partnership as non-passive to the extent that 
it exceeds the greater of--
    (i) The QIC's proportionate share of the income or assets, 
respectively, of the look-through subsidiary or look-through partnership 
multiplied by a fraction, the numerator of which is the net equity value 
of the interests held by the QIC in the look-through subsidiary or look-
through partnership, and the denominator of which is the value of the 
QIC's proportionate share of the assets of the look-through subsidiary 
or look-through partnership; and
    (ii) The QIC's proportionate share of the income or assets, 
respectively, of the look-through subsidiary or look-through partnership 
that are treated as non-passive in the hands of the look-through 
subsidiary or look-through partnership.
    (3) Examples. The following examples illustrate the rules of this 
section.
    (i) Example 1: QIC holds all the stock of an investment subsidiary--
(A) Facts.
    (1) F1 is a foreign corporation. In Year 1, F1 meets the definition 
of a QIC under section 1297(f) and Sec.  1.1297-4 and is engaged in the 
active conduct of an insurance business within the meaning of section 
1297(b)(2)(B). Throughout Year 1, F1 owns all the stock of F2, a foreign 
corporation that is not a QIC and is engaged solely in the investment of 
passive assets. The stock of F2 is an asset that is available to satisfy 
liabilities of F1 related to its insurance business within the meaning 
of paragraph (c)(1) of this section. The assets of F1 are measured on 
the basis of value under Sec.  1.1297-1(d)(1)(v)(C).
    (2) Throughout Year 1, F2 owns assets with a value of $1,000x and 
adjusted bases of $500x, all of which are treated as passive in the 
hands of F2. F2 has outstanding debt with a principal amount of $250x. 
On the financial statement end date of F1's applicable financial 
statement, the net equity value of the F2 stock held by F1 is $750x. In 
Year 1, F2 earned $100x of income that is treated as passive in the 
hands of F2.
    (B) Result--(1) Because F1 owns all of the stock of F2, F2 is a 
look-through subsidiary of F1 within the meaning of Sec.  1.1297-
2(g)(3). Under section 1297(c) and Sec.  1.1297-2(b)(2), F1 is treated 
as if it held 100% of the assets of F2 and received directly 100% of the 
income of F2. Under paragraph (d)(1) of this section, because F1 is 
engaged in the active conduct of an insurance business and the stock of 
F2 is an asset that is available to satisfy the insurance liabilities of 
F1, F1 treats its proportionate share of the income and assets of F2 as 
non-passive. The amount of income and assets that is treated as non-

[[Page 751]]

passive is subject to the limitation of paragraph (d)(2) of this 
section.
    (2) Under paragraph (d)(2) of this section, the amount of F1's 
proportionate share of F2's income that is treated as non-passive cannot 
exceed the greater of two amounts: $75x, which is F1's proportionate 
share of F2's income ($100x) multiplied by 75% (the net equity value of 
the F2 stock held by F1, which is $750x, divided by the value of F1's 
proportionate share of F2's assets, which is $1,000x); and zero, which 
is F1's proportionate share of the income of F2 that is treated as non-
passive in the hands of F2. Therefore, for the purpose of characterizing 
F1's proportionate share of F2's income, $75x is treated as non-passive, 
and $25x is treated as passive.
    (3) Under paragraph (d)(2) of this section, the amount of F1's 
proportionate share of F2's assets that is treated as non-passive cannot 
exceed the greater of two amounts: $750x, which is F1's proportionate 
share of F2's assets ($1,000x) multiplied by 75% (the net equity value 
of the F2 stock held by F1, which is $750x, divided by the value of F1's 
proportionate share of F2's assets, which is $1,000x); and zero, which 
is F1's proportionate share of the assets of F2 that are treated as non-
passive in the hands of F2. Therefore, for the purpose of characterizing 
F1's proportionate share of the assets of F2, $750x is treated as non-
passive, and $250x is treated as passive.
    (C) Alternative facts--(1) Facts. The facts are the same as in 
paragraph (d)(3)(i)(A) of this section (paragraph (A) of this Example 
1), except that the assets of F1 are measured on the basis of adjusted 
basis under Sec.  1.1297-1(d)(1)(v)(C) pursuant to a valid election 
under Sec.  1.1297-1(d)(1)(iii).
    (2) Result. The result with respect to F1's proportionate share of 
the income of F2 is the same as in paragraph (d)(3)(i)(B)(2) of this 
section (paragraph (B)(2) of this Example 1). Because the assets of F1 
are measured on the basis of adjusted basis under Sec.  1.1297-
1(d)(1)(v)(C), F1's proportionate share of the passive assets of F2 is 
equal to $500x (100% of $500x adjusted bases). Under paragraph (d)(2) of 
this section, the amount of F1's proportionate share of F2's assets that 
may be treated as non-passive cannot exceed the greater of two amounts: 
$375x, which is F1's proportionate share of F2's passive assets ($500x) 
multiplied by 75% (the net equity value of the F2 stock held by F1, 
which is $750x, divided by the value of F1's proportionate share of F2's 
assets, which is $1,000x); and zero, which is F1's proportionate share 
of the assets of F2 that are treated as non-passive in the hands of F2. 
Therefore, for the purpose of characterizing F1's proportionate share of 
the assets of F2, $375x is treated as non-passive, and $125x is treated 
as passive.
    (ii) Example 2: QIC holds all the stock of an operating subsidiary--
(A) Facts.
    (1) F1 is a foreign corporation. In Year 1, F1 meets the definition 
of a QIC under section 1297(f) and Sec.  1.1297-4 and is engaged in the 
active conduct of an insurance business within the meaning of section 
1297(b)(2)(B). Throughout Year 1, F1 owns all the stock of F2, a foreign 
corporation engaged in a manufacturing business that is not a QIC. The 
stock of F2 is an asset that is available to satisfy liabilities of F1 
related to its insurance business within the meaning of paragraph (c)(1) 
of this section. The assets of F1 are measured on the basis of value 
under Sec.  1.1297-1(d)(1)(v)(C).
    (2) Throughout Year 1, F2 owns assets with a value of $1,200x, of 
which $1,000x is treated as non-passive and $200x is treated as passive 
in the hands of F2. F2 has outstanding debt of $600x. On the financial 
statement end date of F1's applicable financial statement, the net 
equity value of the F2 stock held by F1 is $600x. In Year 1, F2 earned 
$120x of income, of which, in the hands of F2, $100x is treated as non-
passive and $20x is treated as passive.
    (B) Result--(1) Because F1 owns all the stock of F2, F2 is a look-
through subsidiary of F1 within the meaning of Sec.  1.1297-2(g)(3). 
Under section 1297(c) and Sec.  1.1297-2(b)(2), F1 is treated as if it 
held 100% of the assets of F2 and received directly 100% of the income 
of F2. Under paragraph (d)(1) of this section, because F1 is engaged in 
the active conduct of an insurance business and the stock of F2 is an 
asset that is available to satisfy the insurance liabilities of F1, F1 
treats its proportionate share of the income and assets

[[Page 752]]

of F2 as non-passive. The amount of income and assets that is treated as 
non-passive is subject to the limitation of paragraph (d)(2) of this 
section.
    (2) Under paragraph (d)(2) of this section, the amount of F1's 
proportionate share of F2's income that is treated as non-passive cannot 
exceed the greater of two amounts: $60x, which is F1's proportionate 
share of F2's income ($120x) multiplied by 50% (the net equity value of 
the F2 stock held by F1, which is $600x, divided by the value of F1's 
proportionate share of F2's assets, which is $1,200x); and $100x, which 
is F1's proportionate share of the income of F2 that is treated as non-
passive in the hands of F2. Therefore, for the purpose of characterizing 
F1's proportionate share of F2's income, $100x is treated as non-
passive, and $20x is treated as passive.
    (3) Under paragraph (d)(2) of this section, the amount of F1's 
proportionate share of F2's assets that is treated as non-passive cannot 
exceed the greater of two amounts: $600x, which is F1's proportionate 
share of F2's income ($1,200x) multiplied by 50% (the net equity value 
of the F2 stock held by F1, which is $600x, divided by the value of F1's 
proportionate share of F2's assets, which is $1,200x); and $1,000x, 
which is F1's proportionate share of the assets of F2 that are treated 
as non-passive in the hands of F2. Therefore, for the purpose of 
characterizing F1's proportionate share of the assets of F2, $1,000x is 
treated as non-passive, and $200x is treated as passive.
    (e) Qualifying domestic insurance corporation--(1) General rule. A 
domestic corporation (or a foreign corporation that is treated as a 
domestic corporation pursuant to a valid section 953(d) election and 
that computes its reserves as a domestic insurance company would under 
subchapter L) is a qualifying domestic insurance corporation if it is--
    (i) Subject to tax as an insurance company under subchapter L of the 
Internal Revenue Code;
    (ii) Subject to federal income tax on its net income; and
    (iii) A look-through subsidiary of a tested foreign corporation.
    (2) [Reserved]
    (3) [Reserved]
    (f) Applicability date. The rules of this section apply to taxable 
years of shareholders beginning on or after January 14, 2021. A 
shareholder may choose to apply such rules for any open taxable year 
beginning after December 31, 2017 and before January 14, 2021, provided 
that, with respect to a tested foreign corporation, it consistently 
applies the provisions of this section and Sec.  1.1297-4, for such year 
and all subsequent years.

[T.D. 9936, 86 FR 4571, Jan. 15, 2021]



Sec.  1.1298-0  Passive foreign investment company--table of contents.

    This section contains a listing of the paragraph headings for 
Sec. Sec.  1.1298-1, 1.1298-2, 1.1298-3, and 1.1298-4.

Sec.  1.1298-1 Section 1298(f) annual reporting requirements for United 
  States persons that are shareholders of a passive foreign investment 
                                company.

    (a) Overview.
    (b) Requirement to file.
    (1) General rule.
    (2) Additional requirement to file for certain indirect 
shareholders.
    (i) General rule.
    (ii) Exception to indirect shareholder reporting for certain QEF 
inclusions and MTM inclusions.
    (3) Special rules for estates and trusts.
    (i) Domestic liquidating trusts and fixed investment trusts.
    (ii) Beneficiaries of foreign estates and trusts.
    (c) Exceptions.
    (1) Exception if shareholder is a tax-exempt entity.
    (2) Exception if aggregate value of shareholder's PFIC stock is 
$25,000 or less, or value of shareholder's indirect PFIC stock is $5,000 
or less.
    (i) General rule.
    (ii) Determination of the $25,000 threshold in the case of indirect 
ownership.
    (iii) Application of the $25,000 exception to shareholders who file 
a joint return.
    (iv) Reliance on periodic account statements.
    (3) Exception for PFIC stock marked to market under a provision 
other than section 1296.
    (4) Exception for PFIC stock held through certain foreign pension 
funds.
    (5) Exception for certain shareholders who are dual resident 
taxpayers.
    (i) General rule.
    (ii) Dual resident taxpayer filing as nonresident alien at end of 
taxable year.
    (iii) Dual resident taxpayer filing as resident alien at end of 
taxable year.

[[Page 753]]

    (6) Exception for certain domestic partnerships.
    (7) Exception for certain short-term ownership of PFIC stock.
    (8) Exception for certain bona fide residents of U.S. territories.
    (9) Exception for taxable years ending before December 31, 2013.
    (d) Time and manner for filing.
    (e) Separate annual report for each PFIC.
    (1) General rule.
    (2) Special rule for shareholders who file a joint return.
    (f) Coordination rule.
    (g) Examples.
    (h) Applicability date.

   Sec.  1.1298-2 Rules for certain corporations changing businesses.

    (a) Overview.
    (b) Change of business exception.
    (c) Special rules.
    (d) Disposition of stock in a look-through subsidiary or partnership 
interests in a look-through partnership.
    (e) Application of change of business exception.
    (f) Examples.
    (1) Example 1.
    (i) Facts.
    (ii) Results.
    (2) Example 2.
    (i) Facts.
    (ii) Results.
    (g) Applicability date.

Sec.  1.1298-3 Deemed sale or deemed dividend election by a U.S. person 
                 that is a shareholder of a former PFIC.

    (a) In general.
    (b) Application of deemed sale election rules.
    (1) Eligibility to make the deemed sale election.
    (2) Effect of the deemed sale election.
    (3) Time for making the deemed sale election.
    (4) Manner of making the deemed sale election.
    (5) Adjustments to basis.
    (6) Treatment of holding period.
    (c) Application of deemed dividend election rules.
    (1) Eligibility to make the deemed dividend election.
    (2) Effect of the deemed dividend election.
    (3) Post-1986 earnings and profits defined.
    (4) Time for making the deemed dividend election.
    (5) Manner of making the deemed dividend election.
    (6) Adjustments to basis.
    (7) Treatment of holding period.
    (8) Coordination with section 959(e).
    (d) Termination date.
    (e) Late purging elections requiring special consent.
    (1) In general.
    (2) Prejudice to the interests of the U.S. government.
    (3) Procedural requirements.
    (4) Time and manner of making late election.
    (5) Multiple late elections.
    (f) Effective/applicability date.

 Sec.  1.1298-4 Rules for certain foreign corporations owning stock in 
                 25-percent-owned domestic corporations.

    (a) Overview.
    (b) Treatment of certain foreign corporations owning stock in a 25-
percent-owned domestic corporation.
    (1) General rule.
    (2) Qualified stock and second-tier domestic corporation.
    (c) Indirect ownership of stock through a partnership.
    (d) Section 531 tax.
    (1) Subject to section 531 tax.
    (2) Waiver of treaty benefits.
    (i) Tested foreign corporation that files, or is required to file, a 
Federal income tax return.
    (ii) Tested foreign corporation that is not required to file a 
Federal income tax return.
    (e) Anti-abuse rule.
    (1) General rule.
    (2) [Reserved]
    (3) [Reserved]
    (f) Applicability date.

[T.D. 9360, 72 FR 54824, Sept. 27, 2007, as amended by T.D. 9806, 81 FR 
95466, Dec. 28, 2016; T.D. 9936, 86 FR 4576, Jan. 15, 2021]



Sec.  1.1298-1  Section 1298(f) annual reporting requirements 
for United States persons that are shareholders of a passive 
foreign investment company.

    (a) Overview. This section provides rules regarding the reporting 
requirements under section 1298(f) applicable to a United States person 
that is a shareholder (as defined in Sec.  1.1291-1(b)(7)) of a passive 
foreign investment company (PFIC). Paragraph (b) of this section 
provides the section 1298(f) annual reporting requirements generally 
applicable to United States persons. Paragraph (c) of this section sets 
forth exceptions to reporting for certain shareholders. Paragraph (d) of 
this section provides rules regarding the time and manner of filing the 
annual report. Paragraph (e) of this section sets forth the requirement 
to file a separate annual report with respect to each PFIC.

[[Page 754]]

Paragraph (f) of this section coordinates the requirement to file an 
annual report under section 1298(f) with the requirement to file an 
annual report under other provisions of the Internal Revenue Code 
(Code). Paragraph (g) of this section sets forth examples illustrating 
the application of this section. Paragraph (h) of this section provides 
effective/applicability dates.
    (b) Requirement to file--(1) General rule. Except as otherwise 
provided in this section, a United States person that is a shareholder 
of a PFIC must complete and file Form 8621, ``Information Return by a 
Shareholder of a Passive Foreign Investment Company or Qualified 
Electing Fund'' (or successor form), under section 1298(f) and these 
regulations for the PFIC if, during the shareholder's taxable year, the 
shareholder--
    (i) Directly owns stock of the PFIC;
    (ii) Is an indirect shareholder under Sec.  1.1291-1(b)(8) that 
holds any interest in the PFIC through one or more entities, each of 
which is foreign; or
    (iii) Is an indirect shareholder under Sec.  1.1291-1(b)(8)(iii)(D) 
that is treated under sections 671 through 678 as the owner of any 
portion of a trust described in section 7701(a)(30)(E) that owns, 
directly or indirectly through one or more entities, each of which is 
foreign, any interest in the PFIC.
    (2) Additional requirement to file for certain indirect 
shareholders--(i) General rule. Except as otherwise provided in this 
section, an indirect shareholder that owns an interest in a PFIC through 
one or more United States persons also must file Form 8621 (or successor 
form) with respect to the PFIC under section 1298(f) and these 
regulations if, during the indirect shareholder's taxable year, the 
indirect shareholder is--
    (A) Treated as receiving an excess distribution (within the meaning 
of section 1291(b)) with respect to the PFIC;
    (B) Treated as recognizing gain that is treated as an excess 
distribution (under section 1291(a)(2)) as a result of a disposition of 
the PFIC;
    (C) Required to include an amount in income under section 1293(a) 
with respect to the PFIC (QEF inclusion);
    (D) Required to include or deduct an amount under section 1296(a) 
with respect to the PFIC (MTM inclusion); or
    (E) Required to report the status of a section 1294 election with 
respect to the PFIC (see Sec.  1.1294-1T(h)).
    (ii) Exception to indirect shareholder reporting for certain QEF 
inclusions and MTM inclusions. Except as otherwise provided in this 
paragraph (b)(2)(ii), the filing requirements under paragraph (b) of 
this section do not apply with respect to an interest in a PFIC owned by 
an indirect shareholder described in paragraph (b)(2)(i)(C) or (D) of 
this section if another shareholder through which the indirect 
shareholder owns such interest in the PFIC timely files Form 8621 (or 
successor form) with respect to the PFIC under paragraph (b)(1) or (2) 
of this section. However, the exception in this paragraph (b)(2)(ii) 
does not apply with respect to a PFIC owned by an indirect shareholder 
described in paragraph (b)(2)(i)(C) of this section that owns the PFIC 
through a domestic partnership or S corporation if the domestic 
partnership or S corporation does not make a qualified electing fund 
election with respect to the PFIC (see Sec.  1.1293-1(c)(2)(ii), 
addressing QEF stock transferred to a pass through entity that does not 
make a section 1295 election).
    (3) Special rules for estates and trusts--(i) Domestic liquidating 
trusts and fixed investment trusts. A United States person that is 
treated under sections 671 through 678 as the owner of any portion of a 
trust described in section 7701(a)(30)(E) that owns, directly or 
indirectly, any interest in a PFIC is not required under section 1298(f) 
and these regulations to file Form 8621 (or successor form) with respect 
to the PFIC if the trust is either a domestic liquidating trust under 
Sec.  301.7701-4(d) of this chapter created pursuant to a court order 
issued in a bankruptcy under Chapter 7 (11 U.S.C. 701 et seq.) of the 
Bankruptcy Code or a confirmed plan under Chapter 11 (11 U.S.C. 1101 et 
seq.) of the Bankruptcy Code, or a widely held fixed investment trust 
under Sec.  1.671-5. Such a trust itself is treated as a shareholder for 
purposes of section 1298(f) and these regulations, and thus, except as 
otherwise provided in this

[[Page 755]]

section, the trust is required under section 1298(f) and these 
regulations to file Form 8621 (or successor form) with respect to the 
PFIC as provided in paragraphs (b)(1) and (2) of this section.
    (ii) Beneficiaries of foreign estates and trusts. A United States 
person that is considered to own an interest in a PFIC because it is a 
beneficiary of an estate described in section 7701(a)(31)(A) or a trust 
described in section 7701(a)(31)(B) that owns, directly or indirectly, 
stock of a PFIC, and that has not made an election under section 1295 or 
1296 with respect to the PFIC, is not required under section 1298(f) and 
these regulations to file Form 8621 (or successor form) with respect to 
the stock of the PFIC that it is considered to own through the estate or 
trust if, during the beneficiary's taxable year, the beneficiary is not 
treated as receiving an excess distribution (within the meaning of 
section 1291(b)) or as recognizing gain that is treated as an excess 
distribution (under section 1291(a)(2)) with respect to the stock.
    (c) Exceptions--(1) Exception if shareholder is a tax-exempt entity. 
A shareholder that is an organization exempt under section 501(a) to the 
extent that it is described in section 501(c), 501(d), or 401(a), a 
state college or university described in section 511(a)(2)(B), a plan 
described in section 403(b) or 457(b), an individual retirement plan or 
annuity as defined in section 7701(a)(37), or a qualified tuition 
program described in section 529, a qualified ABLE program described in 
529A, or a Coverdell education savings account described in section 530 
is not required under section 1298(f) and these regulations to file Form 
8621 (or successor form) with respect to a PFIC unless the income 
derived with respect to the PFIC stock would be taxable to the 
organization under subchapter F of Subtitle A of the Code.
    (2) Exception if aggregate value of shareholder's PFIC stock is 
$25,000 or less, or value of shareholder's indirect PFIC stock is $5,000 
or less--(i) General rule. A shareholder is not required under section 
1298(f) and these regulations to file Form 8621 (or successor form) with 
respect to a section 1291 fund (as defined in Sec.  1.1291-1(b)(2)(v)) 
for a shareholder's taxable year if--
    (A) On the last day of the shareholder's taxable year:
    (1) The value of all PFIC stock owned directly or indirectly under 
section 1298(a) and Sec.  1.1291-1(b)(8) by the shareholder is $25,000 
or less; or
    (2) The section 1291 fund stock is indirectly owned by the 
shareholder under section 1298(a)(2)(B) and Sec.  1.1291-1(b)(8)(ii)(B), 
and the value of the section 1291 fund stock indirectly owned by the 
shareholder is $5,000 or less;
    (B) The shareholder is not treated as receiving an excess 
distribution (within the meaning of section 1291(b)) with respect to the 
section 1291 fund during the taxable year or as recognizing gain treated 
as an excess distribution under section 1291(a)(2) as the result of a 
disposition of the section 1291 fund during the taxable year; and
    (C) An election under section 1295 has not been made to treat the 
section 1291 fund as a qualified electing fund with respect to the 
shareholder.
    (ii) Determination of the $25,000 threshold in the case of indirect 
ownership. For purposes of determining the value of stock held by a 
shareholder for purposes of paragraph (c)(2)(i)(A)(1) of this section, 
the shareholder must take into account the value of all PFIC stock owned 
directly or indirectly under section 1298(a) and Sec.  1.1291-1(b)(8), 
except for PFIC stock that is--
    (A) Owned through another United States person that itself is a 
shareholder of the PFIC (including a domestic partnership or S 
corporation treated as a shareholder of a PFIC for purposes of 
information reporting requirements applicable to a shareholder);
    (B) Owned through a PFIC under section 1298(a)(2)(B) and Sec.  
1.1291-1(b)(8)(ii)(B); or
    (C) Marked to market for the shareholder's taxable year under any 
provision of chapter 1 of the Internal Revenue Code other than section 
1296, provided the rules of Sec.  1.1296-1(i)(2) and (3) do not apply to 
the shareholder with respect to the PFIC stock pursuant to Sec.  1.1291-
1(c)(4)(ii) for the shareholder's taxable year.
    (iii) Application of the $25,000 exception to shareholders who file 
a joint return. In the case of a joint return, the exception described 
in paragraph (c)(2)(i)(A)(1) of this section shall apply

[[Page 756]]

if the value of all PFIC stock owned directly or indirectly (as 
determined under section 1298(a), Sec.  1.1291-1(b)(8), and paragraph 
(c)(2)(ii) of this section) by both spouses is $50,000 or less, and all 
of the other applicable requirements of paragraph (c)(2) of this section 
are met.
    (iv) Reliance on periodic account statements. A shareholder may rely 
upon periodic account statements provided at least annually to determine 
the value of a PFIC unless the shareholder has actual knowledge or 
reason to know based on readily accessible information that the 
statements do not reflect a reasonable estimate of the PFIC's value.
    (3) Exception for PFIC stock marked to market under a provision 
other than section 1296. A shareholder is not required under section 
1298(f) and these regulations to file Form 8621 (or successor form) with 
respect to a PFIC for any taxable year in which the PFIC is marked to 
market under any provision of chapter 1 of the Internal Revenue Code 
other than section 1296, provided the rules of Sec.  1.1296-1(i)(2) and 
(3) do not apply to the shareholder with respect to the PFIC pursuant to 
Sec.  1.1291-1(c)(4)(ii) for the taxable year.
    (4) Exception for PFIC stock held through certain foreign pension 
funds. A shareholder who is a member or beneficiary of, or participant 
in, a plan, trust, scheme, or other arrangement that is treated as a 
foreign pension fund (or equivalent) under an income tax treaty to which 
the United States is a party and that owns, directly or indirectly, an 
interest in a PFIC is not required under section 1298(f) and these 
regulations to file Form 8621 (or successor form) with respect to the 
PFIC interest if, pursuant to the applicable income tax treaty, the 
income earned by the foreign pension fund may be taxed as the income of 
the shareholder only when and to the extent the income is paid to, or 
for the benefit of, the shareholder.
    (5) Exception for certain shareholders who are dual resident 
taxpayers--(i) General rule. Subject to the provisions of paragraphs 
(c)(5)(ii) and (iii) of this section, a shareholder is not required 
under section 1298(f) and these regulations to file Form 8621 (or 
successor form) with respect to a PFIC for a taxable year, or the 
portion of a taxable year, in which the shareholder is a dual resident 
taxpayer (within the meaning of Sec.  301.7701(b)-7(a)(1) of this 
chapter) who is treated as a nonresident alien of the United States for 
purposes of computing his or her United States income tax liability 
pursuant to Sec.  301.7701(b)-7 of this chapter.
    (ii) Dual resident taxpayer filing as a nonresident alien at end of 
taxable year. If a shareholder to whom this paragraph (c)(5) applies 
computes his or her U.S. income tax liability as a nonresident alien on 
the last day of the taxable year and complies with the filing 
requirements of Sec.  301.7701(b)-7(b) and (c) of this chapter and, in 
particular, such individual timely files with the Internal Revenue 
Service Form 1040NR, ``U.S. Nonresident Alien Income Tax Return,'' or 
Form 1040NR-EZ, ``U.S. Income Tax Return for Certain Nonresident Aliens 
With No Dependents,'' as applicable, and attaches thereto a properly 
completed Form 8833, ``Treaty-Based Return Position Disclosure Under 
Section 6114 or 7701(b),'' and the schedule required by Sec.  1.6012-
1(b)(2)(ii)(b) (if applicable), such shareholder will not be required 
under section 1298(f) and these regulations to file Form 8621 (or 
successor form) with respect to the taxable year, or the portion of the 
taxable year, covered by Form 1040NR (or Form 1040NR-EZ).
    (iii) Dual resident taxpayer filing as resident alien at end of 
taxable year. If a shareholder to whom this paragraph (c)(5) applies 
computes his or her U.S. income tax liability as a resident alien on the 
last day of the taxable year and complies with the filing requirements 
of Sec.  1.6012-1(b)(2)(ii)(a) and, in particular such shareholder 
timely files with the Internal Revenue Service Form 1040, ``U.S. 
Individual Income Tax Return,'' or Form 1040EZ, ``Income Tax Return for 
Single and Joint Filers With No Dependents,'' as applicable, and 
attaches a properly completed Form 8833 to the schedule required by 
Sec.  1.6012-1(b)(2)(ii)(a), such shareholder will not be required under 
section 1298(f) and these regulations to file Form 8621 (or successor 
form) with respect to the portion of the taxable year reflected on the 
schedule to such Form

[[Page 757]]

1040 or Form 1040EZ required by Sec.  1.6012-1(b)(2)(ii)(a).
    (6) Exception for certain domestic partnerships. A shareholder that 
is a domestic partnership is not required under section 1298(f) and 
these regulations to file Form 8621 (or successor form) with respect to 
a PFIC directly or indirectly held by the domestic partnership for a 
taxable year if each person that directly or indirectly owns an interest 
in the domestic partnership for its taxable year in which or with which 
the taxable year of the partnership ends is either--
    (i) Not a shareholder of the PFIC as defined by Sec.  1.1291-
1(b)(7);
    (ii) A tax-exempt entity or account not required to file Form 8621 
with respect to the stock of the PFIC under paragraph (c)(1) of this 
section;
    (iii) A dual resident taxpayer not required to file Form 8621 with 
respect to the stock of the PFIC under paragraph (c)(5) of this section; 
or
    (iv) A domestic partnership not required to file Form 8621 with 
respect to the stock of the PFIC under this paragraph (c)(6).
    (7) Exception for certain short-term ownership of PFIC stock. A 
shareholder is not required under section 1298(f) and these regulations 
to file Form 8621 (or successor form) with respect to a section 1291 
fund (as defined in Sec.  1.1291-1(b)(2)(v)) for a taxable year when the 
shareholder--
    (i) Acquires the section 1291 fund in the taxable year or the 
immediately preceding taxable year;
    (ii) Is a shareholder of the section 1291 fund for a total of 30 
days or less during the period beginning 29 days before the first day of 
the shareholder's taxable year and ending 29 days after the close of the 
shareholder's taxable year; and
    (iii) Is not treated as receiving an excess distribution (within the 
meaning of section 1291(b)) with respect to the section 1291 fund, 
including any gain recognized that is treated as an excess distribution 
under section 1291(a)(2) as a result of the disposition of the section 
1291 fund.
    (8) Exception for certain bona fide residents of certain U.S. 
territories. A shareholder is not required under section 1298(f) and 
these regulations to file Form 8621 (or successor form) with respect to 
a PFIC for a taxable year when the shareholder--
    (i) Is a bona fide resident (as defined by section 937(a)) of Guam, 
the Northern Mariana Islands, or the United States Virgin Islands; and
    (ii) Is not required to file an income tax return with the Internal 
Revenue Service with respect to such taxable year.
    (9) Exception for taxable years ending before December 31, 2013. A 
United States person is not required under section 1298(f) and these 
regulations to file an annual report with respect to a PFIC for a 
taxable year of the United States person ending before December 31, 
2013.
    (d) Time and manner for filing. A United States person required 
under section 1298(f) and these regulations to file Form 8621 (or 
successor form) with respect to a PFIC must attach the form to its 
Federal income tax return (or information return, if applicable) for the 
taxable year to which the filing obligation relates on or before the due 
date (including extensions) for the filing of the return, or must 
separately file the form in accordance with the instructions for the 
form when the United States person is not required to file a Federal 
income tax return (or information return, if applicable) for the taxable 
year. In the case of any failure to report information that is required 
to be reported pursuant to section 1298(f) and these regulations, the 
time for assessment of tax will be extended pursuant to section 
6501(c)(8).
    (e) Separate annual report for each PFIC--(1) General rule. If a 
United States person is required under section 1298(f) and these 
regulations to file Form 8621 (or successor form) with respect to more 
than one PFIC, the United States person must file a separate Form 8621 
(or successor form) for each PFIC.
    (2) Special rule for shareholders who file a joint return. United 
States persons that file a joint return may file a single Form 8621 (or 
successor form) with respect to a PFIC in which they jointly or 
individually own an interest.
    (f) Coordination rule. A United States person that is a shareholder 
of a PFIC

[[Page 758]]

may file a single Form 8621 (or successor form) with respect to the PFIC 
that contains all of the information required to be reported pursuant to 
section 1298(f) and these regulations and any other information 
reporting requirements or election rules under other provisions of the 
Code.
    (g) Examples. The following examples illustrate the rules of this 
section:

    Example 1. General requirement to file. (i) Facts. In 2013, J, a 
United States citizen, directly owns an interest in Partnership X, a 
domestic partnership, which, in turn, owns an interest in A Corp, which 
is a PFIC. In addition, J directly owns an interest in Partnership Y, a 
foreign partnership, which, in turn, owns an interest in A Corp. Neither 
J nor Partnership X has made a qualified electing fund election under 
section 1295 or a mark to market election under section 1296 with 
respect to A Corp. As of the last day of 2013, the value of Partnership 
X's interest in A Corp is $200,000, and the value of J's proportionate 
share of Partnership Y's interest in A Corp is $100,000. During 2013, J 
is not treated as receiving an excess distribution or recognizing gain 
treated as an excess distribution with respect to A Corp. Partnership X 
timely files a Form 8621 under section 1298(f) and paragraph (b)(1) of 
this section with respect to A Corp for 2013.
    (ii) Results. J is the first United States person in the chain of 
ownership with respect to J's interest in A Corp held through 
Partnership Y. Under paragraph (b)(1) of this section, J must file a 
Form 8621 under section 1298(f) with respect to J's interest in A Corp 
held through Partnership Y because J is an indirect shareholder of A 
Corp under Sec.  1.1291-1(b)(8) that holds PFIC stock through a foreign 
entity (Partnership Y), and there are no other United States persons in 
the chain of ownership. The fact that Partnership X filed a Form 8621 
with respect to A Corp does not relieve J of the obligation under 
paragraph (b)(1) of this section to file a Form 8621 with respect to J's 
interest in A Corp held through Partnership Y. J has no filing 
obligation under section 1298(f) and paragraph (b)(2) of this section 
with respect to J's proportionate share of Partnership X's interest in A 
Corp.
    Example 2. Application of the $25,000 exception. (i) Facts. In 2013, 
J, a United States citizen, directly owns stock of A Corp, B Corp, and C 
Corp, all of which were PFICs during 2013. As of the last day of 2013, 
the value of J's interests was $5,000 in A Corp, $10,000 in B Corp, and 
$4,000 in C Corp. J timely filed an election under section 1295 to treat 
A Corp as a qualified electing fund for the first year in which A Corp 
qualified as a PFIC, and a mark-to-market election under section 1296 
with respect to the stock of B Corp. J did not make a qualified electing 
fund election under section 1295 or a mark to market election under 
section 1296 with respect to C Corp. J did not receive an excess 
distribution or recognize gain treated as an excess distribution in 
respect of C Corp during 2013.
    (ii) Results. Under paragraph (b)(1) of this section, J must file 
separate Forms 8621 with respect to A Corp and B Corp for 2013. However, 
J is not required to file a Form 8621 with respect to C Corp because J 
owns, in the aggregate, PFIC stock with a value of less than $25,000 on 
the last day of J's taxable year, C Corp is not subject to a qualified 
electing fund election or mark to market election with respect to J, and 
J did not receive an excess distribution in respect of C Corp or 
recognize gain treated as an excess distribution in respect of C Corp 
during 2013. Therefore, J qualifies for the $25,000 exception in 
paragraph (c)(2) of this section with respect to C Corp.
    Example 3. Application of the $25,000 exception to indirect 
shareholder. (i) Facts. E, a United States citizen, directly owns an 
interest in Partnership X, a domestic partnership. Partnership X, in 
turn, directly owns an interest in A Corp and B Corp, both of which are 
PFICs. Partnership X timely filed an election under section 1295 to 
treat B Corp as a qualified electing fund for the first year in which B 
Corp qualified as a PFIC. In addition, E directly owns an interest in C 
Corp, which is a PFIC. C Corp, in turn, owns an interest in D Corp, 
which is a PFIC. E has not made a qualified electing fund election under 
section 1295 or a mark to market election under section 1296 with 
respect to A Corp, C Corp, or D Corp. As of the last day of 2013, the 
value of Partnership X's interest in A Corp is $30,000, the value of 
Partnership X's interest in B Corp is $30,000, the value of E's indirect 
interest in A Corp is $10,000, the value of E's indirect interest in B 
Corp is $10,000, the value of E's interest in C Corp is $20,000, and the 
value of C Corp's interest in D Corp is $10,000. During 2013, E did not 
receive an excess distribution, or recognize gain treated as an excess 
distribution, with respect to A Corp, C Corp, or D Corp. Partnership X 
timely files Forms 8621 under section 1298(f) and paragraph (b)(1) of 
this section with respect to A Corp and B Corp for 2013.
    (ii) Results. Under paragraph (b) of this section, E does not have 
to file a Form 8621 under section 1298(f) and these regulations with 
respect to A Corp because E is not the United States person that is at 
the lowest tier in the chain of ownership with respect to A Corp and E 
did not receive an excess distribution or recognize gain treated as an 
excess distribution with respect to A Corp. Furthermore, under paragraph 
(b)(2)(ii) of this section, E does not have to file a Form

[[Page 759]]

8621 under section 1298(f) and these regulations with respect to B Corp 
because Partnership X timely filed a Form 8621 with respect to B Corp. 
In addition, under paragraph (c)(2)(ii)(A) of this section, E does not 
take into account the value of A Corp and B Corp, which E owns through 
Partnership X, in determining whether E qualifies for the $25,000 
exception. Further, under paragraph (c)(2)(ii)(B) of this section, E 
does not take into account the value of D Corp in determining whether E 
qualifies for the $25,000 exception. Therefore, even though E is the 
United States person that is at the lowest tier in the chain of 
ownership with respect to C Corp and D Corp, E does not have to file a 
Form 8621 with respect to C Corp or D Corp because E qualifies for the 
$25,000 exception set forth in paragraph (c)(2)(i)(A)(1) of this 
section.
    Example 4. Indirect shareholder's requirement to file. (i) Facts. 
The facts are the same as in Example 3 of this paragraph (g), except 
that the value of E's interest in C Corp is $30,000 and the value of E's 
proportionate share of C Corp's interest in D Corp is $3,000.
    (ii) Results. The results are the same as in Example 3 of this 
paragraph (g) with respect to E having no requirement to file a Form 
8621 under section 1298(f) and these regulations with respect to A Corp 
and B Corp. However, under the facts in this Example 4, E does not 
qualify for the $25,000 exception under paragraph (c)(2)(i)(A)(1) of 
this section with respect to C Corp because the value of E's interest in 
C Corp is $30,000. Accordingly, E must file a Form 8621 under section 
1298(f) and these regulations with respect to C Corp. However, E does 
qualify for the $5,000 exception under paragraph (c)(2)(i)(A)(2) of this 
section with respect to D Corp, and thus does not have to file a Form 
8621 with respect to D Corp.
    Example 5. Application of the domestic partnership exception. (i) 
Facts. Tax Exempt Entity A and Tax Exempt Entity B are both 
organizations exempt under section 501(a) because they are described in 
section 501(c). Tax Exempt Entity A and Tax Exempt Entity B own all the 
interests in Partnership X, a domestic partnership, which, in turn, 
owns, an interest in Partnership Y, also a domestic partnership. The 
remaining interests in Partnership Y are owned by F Corp, a foreign 
corporation owned solely by individuals that are not residents or 
citizens of the United States. Partnership Y owns an interest in A Corp, 
which is a PFIC. Any income derived with respect to A Corp would not be 
taxable to Tax Exempt Entity A or Tax Exempt Entity B under subchapter F 
of Subtitle A of the Code. Tax Exempt Entity A, Tax Exempt Entity B, 
Partnership X, and Partnership Y all are calendar year taxpayers.
    (ii) Results. Under paragraph (c)(1) of this section, Tax Exempt 
Entity A and Tax Exempt Entity B do not have to file Form 8621 under 
section 1298(f) and these regulations with respect to A Corp because 
neither entity would be subject to tax under subchapter F of Subtitle A 
of the Code with respect to income derived from A Corp. In addition, 
under paragraph (c)(6) of this section, neither Partnership X nor 
Partnership Y is required to file Form 8621 under section 1298(f) and 
these regulations with respect to A Corp because all of the direct and 
indirect interests in Partnership X and Partnership Y are owned by 
persons described in paragraph (c)(1) of this section or persons that 
are not a shareholder of A Corp as defined by Sec.  1.1291-1(b)(7).

    (h) Applicability dates. (1) Except as provided in paragraph (h)(2) 
of this section, this section applies to taxable years of shareholders 
ending on or after December 31, 2013.
    (2) Paragraph (c)(9) of this section applies to taxable years of 
shareholders ending before December 31, 2013.

[T.D. 9806, 81 FR 95466, Dec. 28, 2016]



Sec.  1.1298-2  Rules for certain corporations changing businesses.

    (a) Overview. This section provides rules under section 1298(b)(3) 
and 1298(g) that apply to certain foreign corporations that dispose of 
one or more active trades or businesses for purposes of determining 
whether a foreign corporation is treated as a passive foreign investment 
company (PFIC). Paragraph (b) of this section provides a rule that 
applies to certain foreign corporations that dispose of one or more 
active trades or businesses. Paragraph (c) of this section provides 
special rules. Paragraph (d) of this section provides a rule for the 
treatment of the disposition of the stock of a look-through subsidiary 
(as defined in Sec.  1.1297-2(g)(3)) or partnership interests in a look-
through partnership (as defined in Sec.  1.1297-2(g)(4)). Paragraph (e) 
of this section provides guidance on when a tested foreign corporation 
can apply the change of business exception. Paragraph (f) provides 
examples illustrating the application of the rules in this section. 
Paragraph (g) provides the applicability date for this section.
    (b) Change of business exception. A corporation is not treated as a 
PFIC for a taxable year if--
    (1) Neither the corporation (nor any predecessor) was a PFIC for any 
prior taxable year;

[[Page 760]]

    (2) Either--
    (i) Substantially all of the passive income of the corporation for 
the taxable year is attributable to proceeds from the disposition of one 
or more active trades or businesses; or
    (ii) Following the disposition of one or more active trades or 
businesses, substantially all of the passive assets of the corporation 
on each of the measuring dates that occur during the taxable year and 
after the disposition are attributable to proceeds from the disposition; 
and
    (3) The corporation reasonably does not expect to be and is not a 
PFIC for either of the first two taxable years following the taxable 
year.
    (c) Special rules. The rules in this paragraph (c) apply for 
purposes of section 1298(b)(3) and this section.
    (1) Income is attributable to proceeds from the disposition of one 
or more active trades or businesses to the extent the income is derived 
from the investment of the proceeds from the disposition of assets used 
in the active trades or businesses.
    (2) Assets are attributable to proceeds from the disposition of one 
or more active trades or businesses only to the extent the assets are 
the proceeds of the disposition of assets used in the active trades or 
businesses, or are derived from the investment of the proceeds.
    (3) The determination of the existence of an active trade or 
business and whether assets are used in an active trade or business is 
made under Sec.  1.367(a)-2(d)(2), (3), and (5), except that officers 
and employees do not include the officers and employees of related 
entities as provided in Sec.  1.367(a)-2(d)(3). However, if activities 
performed by the officers and employees of a look-through subsidiary of 
a corporation or of a look-through partnership (including a look-through 
subsidiary or a look-through partnership with respect to which paragraph 
(d) of this section applies) would be taken into account by the 
corporation pursuant to Sec.  1.1297-2(e) if it applied, such activities 
are taken into account for purposes of the determination of the 
existence of an active trade or business and the determination of 
whether assets are used in an active trade or business.
    (4) In the case of a corporation that satisfies the condition in 
paragraph (b)(2)(ii) of this section, the condition in paragraph (b)(3) 
of this section is deemed to be satisfied if the corporation completely 
liquidates by the end of the taxable year following the year with 
respect to which the tested foreign corporation applies the exception in 
paragraph (b) of this section.
    (d) Disposition of stock of a look-through subsidiary or partnership 
interests in a look-through partnership. For purposes of paragraph (b) 
of this section, the proceeds from a tested foreign corporation's 
disposition of the stock of a look-through subsidiary or of partnership 
interests in a look-through partnership are treated as proceeds from the 
disposition of a proportionate share of the assets held by the look-
through subsidiary or look-through partnership on the date of the 
disposition, based on the method (value or adjusted bases) used to 
measure the assets of the tested foreign corporation for purposes of 
section 1297(a)(2). The proceeds attributable to assets used by the 
look-through subsidiary or look-through partnership in an active trade 
or business are treated as proceeds attributable to the disposition of 
an active trade or business.
    (e) Application of change of business exception. A tested foreign 
corporation can apply the exception in paragraph (b) of this section 
with respect to a taxable year of a disposition of an active trade or 
business or an immediately succeeding taxable year, but cannot apply the 
exception with respect to more than one taxable year for a disposition.
    (f) Examples. The following examples illustrate the rules of this 
section. For purposes of these examples: USP is a domestic corporation; 
TFC and FS are foreign corporations that are not controlled foreign 
corporations (within the meaning of section 957(a)); each corporation 
has outstanding a single class of stock; USP has owned its interest in 
TFC since the formation of TFC; each of USP, TFC, and FS have a calendar 
taxable year; and for purposes of section 1297(a)(2), TFC measures the 
amount of its assets based on value.
    (1) Example 1--(i) Facts. (A) USP owns 15% of the outstanding stock 
of TFC.

[[Page 761]]

TFC owns 30% of the outstanding stock of FS. FS operates an active trade 
or business and 100% of its assets are used in the active trade or 
business. The value of FS's non-passive assets (as defined in Sec.  
1.1297-1(f)(3)) is $900x; the value of FS's passive assets (which 
include cash and cash equivalents) is $100x. TFC has not been treated as 
a PFIC for any taxable year before Year 1 and has no predecessor. In 
addition to holding the FS stock, TFC directly conducts its own active 
trade or business. The value of TFC's non-passive assets (other than FS 
stock) is $50x; the value of TFC's passive assets (other than FS stock 
and assets received during Year 1) is $30x. TFC earns $1x of non-passive 
income (as defined in Sec.  1.1297-1(f)(4)) from its directly conducted 
active trade or business.
    (B) On January 1, Year 1, TFC sells all of its FS stock for $300x. 
The residual gain computed under Sec.  1.1297-2(f)(2) on the sale of the 
FS stock is $10x. Under Sec.  1.1297-2(f)(3), $9x of residual gain is 
characterized as non-passive income and $1x of residual gain is 
characterized as passive income. TFC earned $5x of passive income from 
the investment of the proceeds from the disposition of the FS stock 
during each quarter of Year 1, and TFC maintained those earnings ($20x 
in total) as well as the disposition proceeds in cash for the remainder 
of the year. TFC reinvests the proceeds of the FS stock sale in an 
active trade or business during Year 2, and, thus, TFC is not a PFIC in 
Year 2 and Year 3. Less than 75% of TFC's gross income in Year 1 is 
passive income (($20x + $1x)/($10x + $20x + $1x) = 68%). However, 
subject to the application of section 1298(b)(3) and this section, TFC 
would be a PFIC in Year 1 under section 1297(a)(2) because the proceeds 
from the sale of the FS stock ($300x) together with TFC's other passive 
assets exceed 50% of TFC's total assets on each quarterly measuring 
date. For example, on the first quarterly measuring date TFC's ratio of 
passive assets to total assets is (($300x + $30x + $5x)/($300x + $30x + 
$5x + $50x)) and on the fourth quarterly measuring date TFC's ratio of 
passive assets to total assets is (($300x + $30x + $20x)/($300x + $30x + 
$20x + $50x)), each of which exceeds 87%. Therefore, TFC chooses to 
apply the change of business exception in paragraph (b) of this section 
to Year 1.
    (ii) Results. (A) Under paragraph (d) of this section, for purposes 
of applying section 1298(b)(3)(B)(i) in Year 1, TFC's proceeds from the 
disposition of the stock of FS that are attributable to assets used by 
FS in an active trade or business are considered as from the disposition 
of an active trade or business. Because 100% of FS's assets are used in 
its active trade or business, all of TFC's proceeds are considered as 
from the disposition of an active trade or business. Therefore, under 
paragraph (c)(1) of this section, the passive income considered 
attributable to proceeds from a disposition of one or more active trades 
or businesses is $20x (from investment of disposition proceeds). Because 
TFC reasonably does not expect to be a PFIC in Year 2 and Year 3, and 
TFC is not, in fact, a PFIC for those years, TFC will not be treated as 
a PFIC in Year 1 by reason of section 1298(b)(3) and paragraph (b) of 
this section, based on the satisfaction of the condition in paragraph 
(b)(2)(i) of this section, because the 95% ($20x/($20x + $1x)) of TFC's 
passive income for Year 1 that is attributable to proceeds of the 
disposition of FS's active trade or business constitutes substantially 
all of its passive income.
    (B) TFC would also not be treated as a PFIC in Year 1 by reason of 
section 1298(b)(3) and paragraph (b) of this section, based on the 
satisfaction of the condition in paragraph (b)(2)(ii) of this section, 
because the over 91% of TFC's passive assets on the quarterly measuring 
dates during Year 1 following the disposition of the stock of FS that is 
attributable to proceeds of the disposition of FS's active trade or 
business constitutes substantially all of its passive assets. For 
example, on the first quarterly measuring date TFC's ratio of passive 
assets attributable to the proceeds of the disposition of FS's active 
trade or business to its total passive assets is 91% ($305x/($305x + 
$30x)), and the same ratio for the fourth quarterly measuring date is 
91.4% ($320x/($320x + $30x)).
    (C) Under paragraph (e) of this section, TFC cannot claim the 
section 1298(b)(3) exception in relation to the

[[Page 762]]

income attributable to the proceeds of the FS stock sale in Year 2 
because TFC already claimed the exception for Year 1.
    (2) Example 2--(i) Facts. The facts are the same as in paragraph 
(f)(1)(i) of this section (the facts in Example 1), except that during 
the first quarter of Year 1, TFC earned only $4x of passive income ($1x 
per quarter) from the investment of the proceeds from the disposition of 
the FS stock and earned $12x of passive income ($3x per quarter) from 
its other passive assets and maintained such earnings in cash for the 
remainder of the year.
    (ii) Results. The results are the same as in paragraph (f)(1)(ii) of 
this section (the results in Example 1), except that under paragraph 
(c)(1) of this section, the passive income considered attributable to 
proceeds from a disposition of one or more active trades or businesses 
is $4x (from investment of disposition proceeds). Because 24% ($4x/($4x 
+ $12x + $1x)) of TFC's passive income for Year 1 is attributable to 
proceeds of the disposition of FS's active trade or business, and 24% 
does not constitute substantially all of TFC's passive income for Year 
1, TFC does not qualify for the exception from treatment as a PFIC in 
section 1298(b)(3) and paragraph (b)(2)(i) of this section for Year 1. 
However, under paragraphs (b)(2)(ii) and (d) of this section, more than 
$300x ($300x disposition proceeds + amounts earned from investment of 
disposition proceeds) of TFC's passive assets held on each quarterly 
measuring date after the disposition is considered attributable to the 
disposition of an active trade or business. Because TFC reasonably does 
not expect to be a PFIC in Year 2 and Year 3, and TFC is not, in fact, a 
PFIC for those years, TFC will not be treated as a PFIC in Year 1 by 
reason of paragraph (b) of this section, based on the satisfaction of 
the condition in paragraph (b)(2)(ii) of this section, assuming that the 
average 89% of TFC's passive assets on the quarterly measuring dates 
during Year 1 following the disposition of the stock of FS that is 
attributable to proceeds of the disposition of FS's active trade or 
business constitutes substantially all of its passive assets.
    (g) Applicability date. The rules of this section apply to taxable 
years of shareholders beginning on or after January 14, 2021. A 
shareholder may choose to apply such rules for any open taxable year 
beginning before January 14, 2021, provided that, with respect to the 
tested foreign corporation, the shareholder consistently applies the 
provisions of this section and Sec.  1.1291-1(b)(8)(iv) and 
(b)(8)(v)(A), (B), (C), and (D) and Sec. Sec.  1.1297-1 (except that 
consistent treatment is not required with respect to Sec.  1.1297-
1(c)(1)(i)(A)), 1.1297-2, and 1.1298-4 for such year and all subsequent 
years.

[T.D. 9936, 86 FR 4576, Jan. 15, 2021, as at 86 FR 13648, Mar. 10, 2021]



Sec.  1.1298-3  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a former PFIC.

    (a) In general. A shareholder (as defined in Sec.  1.1291-9(j)(3)) 
of a foreign corporation that is a former PFIC, (as defined in Sec.  
1.1291-9(j)(2)(iv)) with respect to such shareholder, shall be treated 
for tax purposes as holding stock in a PFIC and therefore continues to 
be subject to taxation under section 1291 unless the shareholder makes a 
purging election under section 1298(b)(1). A purging election under 
section 1298(b)(1) is made under rules similar to the rules of section 
1291(d)(2). Section 1291(d)(2) allows a shareholder to purge the 
continuing PFIC taint by making either a deemed sale election or a 
deemed dividend election.
    (b) Application of deemed sale election rules--(1) Eligibility to 
make the deemed sale election. A shareholder of a foreign corporation 
that is a former PFIC with respect to such shareholder may make a deemed 
sale election under section 1298(b)(1) by applying the rules of this 
paragraph (b).
    (2) Effect of deemed sale election. A shareholder making the deemed 
sale election with respect to a former PFIC shall be treated as having 
sold all its stock in the former PFIC for its fair market value on the 
termination date, as defined in paragraph (d) of this section. A deemed 
sale is treated as a disposition subject to taxation under section 1291. 
Thus, gain from the deemed sale is taxed under section 1291 as an

[[Page 763]]

excess distribution received on the termination date. In the case of an 
election made by an indirect shareholder, the amount of gain to be 
recognized and taxed as an excess distribution is the amount of gain 
that the direct owner of the stock of the PFIC would have realized on an 
actual sale or disposition of the stock of the PFIC indirectly owned by 
the shareholder. Any loss realized on the deemed sale is not recognized. 
After the deemed sale election, the shareholder's stock with respect to 
which the election was made under this paragraph (b) shall not be 
treated as stock in a PFIC and the shareholder shall not be subject to 
taxation under section 1291 with respect to such stock unless the 
foreign corporation thereafter qualifies as a PFIC under section 
1297(a).
    (3) Time for making the deemed sale election. Except as provided in 
paragraph (e) of this section, the shareholder shall make the deemed 
sale election under this paragraph (b) and section 1298(b)(1) in the 
shareholder's original or amended return for the taxable year that 
includes the termination date (election year). If the deemed sale 
election is made in an amended return, the return must be filed by a 
date that is within three years of the due date, as extended under 
section 6081, of the original return for the election year.
    (4) Manner of making the deemed sale election. A shareholder makes 
the deemed sale election under this paragraph (b) by filing Form 8621 
(``Return by a Shareholder of a Passive Foreign Investment Company or 
Qualified Electing Fund'') with the return of the shareholder for the 
election year, reporting the gain as an excess distribution pursuant to 
section 1291(a) as if such deemed sale occurred under section 
1291(d)(2), and paying the tax and interest due on the excess 
distribution. A shareholder that makes the deemed sale election after 
the due date of the return (determined without regard to extensions) for 
the election year must pay additional interest, pursuant to section 
6601, on the amount of underpayment of tax for that year. An electing 
shareholder that realizes a loss shall report the loss on Form 8621, but 
shall not recognize the loss.
    (5) Adjustments to basis. A shareholder that makes the deemed sale 
election increases its adjusted basis of the PFIC stock owned directly 
by the amount of gain recognized on the deemed sale. If the shareholder 
makes the deemed sale election with respect to a PFIC of which it is an 
indirect shareholder, the shareholder's adjusted basis of the stock or 
other property owned directly by the shareholder, through which 
ownership of the PFIC is attributed to the shareholder, is increased by 
the amount of gain recognized by the shareholder. In addition, solely 
for purposes of determining the subsequent treatment under the Code and 
regulations of a shareholder of the stock of the PFIC, the adjusted 
basis of the direct owner of the stock of the PFIC is increased by the 
amount of gain recognized on the deemed sale. A shareholder shall not 
adjust the basis of any stock with respect to which the shareholder 
realized a loss on the deemed sale, but which loss is not recognized 
under paragraph (b)(2) of this section.
    (6) Treatment of holding period. If a shareholder of a foreign 
corporation has made a deemed sale election, then, for purposes of 
applying sections 1291 through 1298 to such shareholder after the deemed 
sale, the shareholder's holding period in the stock of the foreign 
corporation begins on the day following the termination, without regard 
to whether the shareholder recognized gain on the deemed sale. For other 
purposes of the Code and regulations, this holding period rule does not 
apply.
    (c) Application of deemed dividend election rules--(1) Eligibility 
to make the deemed dividend election. A shareholder of a foreign 
corporation that is a former PFIC with respect to such shareholder may 
make the deemed dividend election under the rules of this paragraph (c) 
provided the foreign corporation was a controlled foreign corporation 
(as defined in section 957(a) (CFC)) during its last taxable year as a 
PFIC. A shareholder may make the deemed dividend election without regard 
to whether the shareholder is a United States shareholder within the 
meaning of section 951(b). A deemed dividend election may be made by a 
shareholder whose pro rata share of the post-1986 earnings and profits 
of the

[[Page 764]]

PFIC attributable to the PFIC stock held on the termination date is 
zero.
    (2) Effect of the deemed dividend election. A shareholder making the 
deemed dividend election with respect to a former PFIC shall include in 
income as a dividend its pro rata share of the post-1986 earnings and 
profits of the PFIC attributable to all of the stock it held, directly 
or indirectly on the termination date, as defined in paragraph (d) of 
this section. The deemed dividend is taxed under section 1291 as an 
excess distribution received on the termination date. The excess 
distribution determined under this paragraph (c) is allocated under 
section 1291(a)(1)(A) only to each day of the shareholder's holding 
period of the stock during which the foreign corporation qualified as a 
PFIC. For purposes of the preceding sentence, the shareholder's holding 
period of the PFIC stock ends on the termination date. After the deemed 
dividend election, the shareholder's stock with respect to which the 
election was made under this paragraph (c) shall not be treated as stock 
in a PFIC and the shareholder shall not be subject to taxation under 
section 1291 with respect to such stock unless the foreign corporation 
thereafter qualifies as a PFIC under section 1297(a).
    (3) Post-1986 earnings and profits defined: (i) In general. For 
purposes of this section, the term post-1986 earnings and profits means 
the post-1986 undistributed earnings, within the meaning of section 
902(c)(1) (determined without regard to section 902(c)(3)), as of the 
close of the taxable year that includes the termination date. For 
purposes of this computation, only earnings and profits accumulated in 
taxable years during which the foreign corporation was a PFIC shall be 
taken into account, without regard to whether the earnings relate to a 
period during which the PFIC was a CFC.
    (ii) Pro rata share of post-1986 earnings and profits attributable 
to shareholder's stock: (A) In general. A shareholder's pro rata share 
of the post-1986 earnings and profits of the PFIC attributable to the 
stock held by the shareholder on the termination date is the amount of 
post-1986 earnings and profits of the PFIC accumulated during any 
portion of the shareholder's holding period ending at the close of the 
termination date and attributable, under the principles of section 1248 
and the regulations under that section, to the PFIC stock held on the 
termination date.
    (B) Reduction for previously taxed amounts. A shareholder's pro rata 
share of the post-1986 earnings and profits of the PFIC does not include 
any amount that the shareholder demonstrates to the satisfaction of the 
Commissioner (in the manner provided in paragraph (c)(5)(ii) of this 
section) was, pursuant to another provision of the law, previously 
included in the income of the shareholder, or of another U.S. person if 
the shareholder's holding period of the PFIC stock includes the period 
during which the stock was held by that other U.S. person.
    (4) Time for making the deemed dividend election. Except as provided 
in paragraph (e) of this section, the shareholder shall make the deemed 
dividend election under this paragraph (c) and section 1298(b)(1) in the 
shareholder's original or amended return for the taxable year that 
includes the termination date (election year). If the deemed dividend 
election is made in an amended return, the return must be filed by a 
date that is within three years of the due date, as extended under 
section 6081, of the original return for the election year.
    (5) Manner of making the deemed dividend election: (i) In general. A 
shareholder makes the deemed dividend election by filing Form 8621 and 
the attachment to Form 8621 described in paragraph (c)(5)(ii) of this 
section with the return of the shareholder for the election year, 
reporting the deemed dividend as an excess distribution pursuant to 
section 1291(a)(1), and paying the tax and interest due on the excess 
distribution. A shareholder that makes the deemed dividend election 
after the due date of the return (determined without regard to 
extensions) for the election year must pay additional interest, pursuant 
to section 6601, on the amount of underpayment of tax for that year.
    (ii) Attachment to Form 8621. The shareholder must attach a schedule 
to Form 8621 that demonstrates the calculation of the shareholder's pro 
rata

[[Page 765]]

share of the post-1986 earnings and profits of the PFIC that is treated 
as distributed to the shareholder on the termination date pursuant to 
this paragraph (c). If the shareholder is claiming an exclusion from its 
pro rata share of the post-1986 earnings and profits for an amount 
previously included in its income or the income of another U.S. person, 
the shareholder must include the following information:
    (A) The name, address, and taxpayer identification number of each 
U.S. person that previously included an amount in income, the amount 
previously included in income by each such U.S. person, the provision of 
law pursuant to which the amount was previously included in income, and 
the taxable year or years of inclusion of each amount.
    (B) A description of the transaction pursuant to which the 
shareholder acquired, directly or indirectly, the stock of the PFIC from 
another U.S. person, and the provision of law pursuant to which the 
shareholder's holding period includes the period the other U.S. person 
held the CFC stock.
    (6) Adjustments to basis. A shareholder that makes the deemed 
dividend election increases its adjusted basis of the stock of the PFIC 
owned directly by the shareholder by the amount of the deemed dividend. 
If the shareholder makes the deemed dividend election with respect to a 
PFIC of which it is an indirect shareholder, the shareholder's adjusted 
basis of the stock or other property owned directly by the shareholder, 
through which ownership of the PFIC is attributed to the shareholder, is 
increased by the amount of the deemed dividend. In addition, solely for 
purposes of determining the subsequent treatment under the Code and 
regulations of a shareholder of the stock of the PFIC, the adjusted 
basis of the direct owner of the stock of the PFIC is increased by the 
amount of the deemed dividend.
    (7) Treatment of holding period. If the shareholder of a foreign 
corporation has made a deemed dividend election, then, for purposes of 
applying sections 1291 through 1298 to such shareholder after the deemed 
dividend, the shareholder's holding period of the stock of the foreign 
corporation begins on the day following the termination date. For other 
purposes of the Code and regulations, this holding period rule does not 
apply.
    (8) Coordination with section 959(e). For purposes of section 
959(e), the entire deemed dividend is treated as having been included in 
gross income under section 1248(a).
    (d) Termination date. For purposes of this section, the termination 
date is the last day of the last taxable year of the foreign corporation 
during which it qualified as a PFIC under section 1297(a).
    (e) Late purging elections requiring special consent--(1) In 
general. This section prescribes the exclusive rules under which a 
shareholder of a former PFIC may make a section 1298(b)(1) election 
after the time prescribed in paragraph (b)(3) or (c)(4) of this section 
for making a deemed sale or a deemed dividend election has elapsed (late 
purging election). Therefore, a shareholder may not seek such relief 
under any other provisions of the law, including Sec.  301.9100-3 of 
this chapter. A shareholder may request the consent of the Commissioner 
to make a late purging election for the taxable year of the shareholder 
that includes the termination date provided the shareholder satisfies 
the requirements set forth in this paragraph (e). The Commissioner may, 
in his discretion, grant relief under this paragraph (e) only if--
    (i) In a case where the shareholder is requesting consent under this 
paragraph (e) after December 31, 2005, the shareholder requests such 
consent before a representative of the Internal Revenue Service raises 
upon audit the PFIC status of the foreign corporation for any taxable 
year of the shareholder;
    (ii) The shareholder has agreed in a closing agreement with the 
Commissioner, described in paragraph (e)(3) of this section, to 
eliminate any prejudice to the interests of the U.S. government, as 
determined under paragraph (e)(2) of this section, as a consequence of 
the shareholder's inability to file amended returns for its taxable year 
in which the termination date falls or an earlier closed taxable year in 
which the shareholder has taken a position that

[[Page 766]]

is inconsistent with the treatment of the foreign corporation as a PFIC; 
and
    (iii) The shareholder satisfies the procedural requirements set 
forth in paragraph (e)(3) of this section.
    (2) Prejudice to the interests of the U.S. government. The interests 
of the U.S. government are prejudiced if granting relief would result in 
the shareholder having a lower tax liability (other than by a de minimis 
amount), taking into account applicable interest charges, for the 
taxable year that includes the termination date (or a prior taxable year 
in which the taxpayer took a position on a return that was inconsistent 
with the treatment of the foreign corporation as a PFIC) than the 
shareholder would have had if the shareholder had properly made the 
section 1298(b)(1) election in the time prescribed in paragraph (b)(2) 
or (c)(3) of this section (or had not taken a position in a return for 
an earlier year that was inconsistent with the status of the foreign 
corporation as a PFIC). The time value of money is taken into account 
for purposes of this computation.
    (3) Procedural requirements--(i) In general. The amount due with 
respect to a late purging election is determined in the same manner as 
if the purging election had been timely filed. However, the shareholder 
is also liable for interest on the amount due, pursuant to section 6601, 
determined for the period beginning on the due date (without extensions) 
for the taxpayer's income tax return for the year in which the 
termination date falls and ending on the date the late purging election 
is filed with the IRS.
    (ii) Filing instructions. A late purging election is made by filing 
a completed Form 8621-A, ``Return by a Shareholder Making Certain Late 
Elections to End Treatment as a Passive Foreign Investment Company.''
    (4) Time and manner of making late election--(i) Time for making a 
late purging election. A shareholder may make a late purging election in 
the manner provided in paragraph (e)(4)(ii) of this section at any time. 
The date the election is filed with the IRS will determine the amount of 
interest due under paragraph (e)(3) of this section.
    (ii) Manner of making a late purging election. A shareholder makes a 
late purging election by completing Form 8621-A in the manner required 
by that form and this section and filing that form with the Internal 
Revenue Service, DP 8621-A, Ogden, UT 84201.
    (5) Multiple late elections. For rules regarding the circumstances 
under which a shareholder of a foreign corporation may make multiple 
late purging elections under this paragraph (e) or Sec.  1.1297-3(e), 
see Sec.  1.1297-3(e)(5).
    (f) Effective/applicability date. The rules of this section are 
applicable as of December 8, 2005.

[T.D. 9231, 70 FR 72915, Dec. 8, 2005, as amended by T.D. 9360, 72 FR 
54824, Sept. 27, 2007]



Sec.  1.1298-4  Rules for certain foreign corporations owning stock 
in 25-percent-owned domestic corporations.

    (a) Overview. This section provides rules under section 1298(b)(7) 
that apply to certain foreign corporations that own stock in 25-percent-
owned domestic corporations (as defined in paragraph (b) of this 
section) for purposes of determining whether a foreign corporation is a 
passive foreign investment company (PFIC). Paragraph (b) of this section 
provides the general rule. Paragraph (c) of this section provides rules 
concerning ownership of 25-percent-owned domestic corporations or 
qualified stock (as defined in paragraph (b)(2) of this section) through 
partnerships. Paragraph (d) of this section provides rules for 
determining whether a foreign corporation is subject to the tax imposed 
by section 531 (the section 531 tax) and for waiving treaty benefits 
that would prevent the imposition of such tax. Paragraph (e) of this 
section provides an anti-abuse rule for the application of section 
1298(b)(7). Paragraph (f) provides the applicability date for this 
section.
    (b) Treatment of certain foreign corporations owning stock in a 25-
percent-owned domestic corporation--(1) General rule. Except as 
otherwise provided in paragraph (e) of this section, when a tested 
foreign corporation (as defined in Sec.  1.1297-1(f)) is subject to the 
section 531 tax (or waives any benefit under any treaty that would 
otherwise prevent the imposition of the tax), and owns (directly or 
indirectly under the rules in paragraph (c) of this section)

[[Page 767]]

at least 25 percent (by value) of the stock of a domestic corporation (a 
25-percent-owned domestic corporation), for purposes of determining 
whether the foreign corporation is a PFIC, any qualified stock held 
directly or indirectly under the rules in paragraph (c) of this section 
by the 25-percent-owned domestic corporation is treated as an asset that 
does not produce passive income (and is not held for the production of 
passive income), and any amount included in gross income with respect to 
the qualified stock is not treated as passive income.
    (2) Qualified stock and second-tier domestic corporation. For 
purposes of this section, the term qualified stock means any stock in a 
C corporation that is a domestic corporation and that is not a regulated 
investment company or real estate investment trust and the term second-
tier corporation means the corporation.
    (c) Indirect ownership of stock through a partnership. For purposes 
of paragraph (b)(1) of this section, a tested foreign corporation that 
is a partner in a partnership is considered to own its proportionate 
share of any stock of a domestic corporation held by the partnership, 
and a domestic corporation that is a partner in a partnership is 
considered to own its proportionate share of any qualified stock held by 
the partnership. An upper-tier partnership's attributable share of the 
stock of a domestic corporation or of qualified stock held by a lower-
tier partnership is treated as held by the upper-tier partnership for 
purposes of applying the rule in this paragraph (c).
    (d) Section 531 tax--(1) Subject to section 531 tax. For purposes of 
paragraph (b) of this section, a tested foreign corporation is 
considered subject to the section 531 tax regardless of whether the tax 
is imposed on the corporation and of whether the requirements of Sec.  
1.532-1(c) are met.
    (2) Waiver of treaty benefits--(i) Tested foreign corporation that 
files, or is required to file, a Federal income tax return. For purposes 
of paragraph (b) of this section, a tested foreign corporation that 
files, or is required to file, a Federal income tax return waives the 
benefit under a treaty that would otherwise prevent the imposition of 
the section 531 tax by attaching to its original or amended return for 
the taxable year for which section 1298(b)(7) and paragraph (b)(1) of 
this section are applied or any prior taxable year a statement that it 
irrevocably waives treaty protection against the imposition of the 
section 531 tax, effective for all prior, current, and future taxable 
years, provided the taxable year for which the return is filed and all 
subsequent taxable years are not closed by the period of limitations on 
assessments under section 6501.
    (ii) Tested foreign corporation that is not required to file a 
Federal income tax return. For purposes of paragraph (b) of this 
section, a tested foreign corporation that is not required to file a 
Federal income tax return waives the benefit under a treaty that would 
otherwise prevent the imposition of the section 531 tax by a date no 
later than nine months following the close of the taxable year for which 
section 1298(b)(7) and paragraph (b)(1) of this section are applied by--
    (A) Adopting a resolution or similar governance document that 
confirms that it has irrevocably waived any treaty protection against 
the imposition of the section 531 tax, effective for all prior, current, 
and future taxable years, and maintaining a copy of the resolution (or 
other governance document) in its records; or
    (B) In the case of a tested foreign corporation described in section 
1297(e)(3), including in its public filings a statement that it 
irrevocably waives treaty protection against the imposition of the 
section 531 tax, effective for all prior, current, and future taxable 
years.
    (e) Anti-abuse rule--(1) General rule. Paragraph (b) of this section 
does not apply with respect to qualified stock in a second-tier domestic 
corporation owned by a 25-percent-owned domestic corporation if a 
principal purpose for the formation of, acquisition of, or holding of 
stock of the 25-percent-owned domestic corporation or the second-tier 
domestic corporation, or for the capitalization or other funding of the 
second-tier domestic corporation, is to hold passive assets (as defined 
in Sec.  1.1297-1(f)(5)) through the second-tier

[[Page 768]]

domestic corporation to avoid classification of the tested foreign 
corporation as a PFIC.
    (2) [Reserved]
    (3) [Reserved]
    (f) Applicability date. The rules of this section apply to taxable 
years of shareholders beginning on or after January 14, 2021. A 
shareholder may choose to apply such rules for any open taxable year 
beginning before January 14, 2021, provided that, with respect to a 
tested foreign corporation, the shareholder consistently applies the 
provisions of this section and Sec.  1.1291-1(b)(8)(iv) and 
(b)(8)(v)(A), (B), (C), and (D) and Sec. Sec.  1.1297-1 (except that 
consistent treatment is not required with respect to Sec.  1.1297-
1(c)(1)(i)(A)), 1.1297-2, and 1.1298-2 for such year and all subsequent 
years.

[T.D. 9936, 86 FR 4578, Jan. 15, 2021, as amended at 86 FR 13648, Mar. 
10, 2021]

                            Income Averaging



Sec.  1.1301-1  Averaging of farm and fishing income.

    (a) Overview. An individual engaged in a farming or fishing business 
may make a farm income averaging election to compute current year 
(election year) income tax liability under section 1 by averaging, over 
the prior three-year period (base years), all or a portion of the 
individual's current year electible farm income as defined in paragraph 
(e) of this section. Electible farm income includes income from both 
farming and fishing businesses. An individual who makes a farm income 
averaging election--
    (1) Designates all or a portion of the individual's electible farm 
income for the election year as elected farm income; and
    (2) Determines the election year section 1 tax by calculating the 
sum of--
    (i) The section 1 tax that would be imposed for the election year if 
taxable income for the year were reduced by elected farm income; plus
    (ii) The amount by which the section 1 tax would be increased if 
taxable income for each base year were increased by one-third of elected 
farm income.
    (b) Individual engaged in a farming or fishing business--(1) In 
general--(i) Farming or fishing business. ``Farming business'' has the 
same meaning as provided in section 263A(e)(4) and the regulations under 
that section. Fishing business means the conduct of commercial fishing 
as defined in section 3 of the Magnuson-Stevens Fishery Conservation and 
Management Act (16 U.S.C. 1802(4)). Accordingly, a fishing business is 
fishing in which the fish harvested are intended to or do enter commerce 
through sale, barter, or trade. Fishing means the catching, taking, or 
harvesting of fish; the attempted catching, taking, or harvesting of 
fish; any activities that reasonably can be expected to result in the 
catching, taking, or harvesting of fish; or any operations at sea in 
support of or in preparation for the catching, taking, or harvesting of 
fish. Fishing does not include any scientific research activity 
conducted by a scientific research vessel. Fish means finfish, mollusks, 
crustaceans, and all other forms of marine animal and plant life, other 
than marine mammals and birds. Catching, taking, or harvesting includes 
activities that result in the killing of fish or the bringing of live 
fish on board a vessel.
    (ii) Exxon Valdez settlement payments. For purposes of this section, 
a qualified taxpayer who receives qualified settlement income in any 
taxable year is treated as engaged in a fishing business, and the income 
is treated as income attributable to a fishing business, for that 
taxable year. A qualified taxpayer is an individual plaintiff in the 
civil action In re Exxon Valdez, No. 89-095-CV (HRH) (Consolidated) (D. 
Alaska). Qualified taxpayer also means any individual who is a 
beneficiary of the estate of such a plaintiff, was the spouse or 
immediate relative of that plaintiff, and acquired the right to receive 
the settlement income from that plaintiff. Qualified settlement income 
means any interest and punitive damage awards that are received in 
connection with the civil action In re Exxon Valdez (whether as lump-sum 
or periodic payments, whether pre- or post-judgment, and whether related 
to a settlement or to a judgment) and that are otherwise includible in 
income.
    (iii) Form of business. An individual engaged in a farming or 
fishing business includes a sole proprietor of a

[[Page 769]]

farming or fishing business, a partner in a partnership engaged in a 
farming or fishing business, and a shareholder of an S corporation 
engaged in a farming or fishing business. Except as provided in 
paragraph (e)(1)(i) of this section, services performed as an employee 
are disregarded in determining whether an individual is engaged in a 
farming or fishing business for purposes of section 1301 of the Internal 
Revenue Code.
    (iv) Base years. An individual is not required to have been engaged 
in a farming or fishing business in any of the base years in order to 
make a farm income averaging election.
    (2) Certain landlords. A landlord is engaged in a farming business 
for purposes of section 1301 with respect to rental income that is based 
on a share of production from a tenant's farming business and, with 
respect to amounts received on or after January 1, 2003, is determined 
under a written agreement entered into before the tenant begins 
significant activities on the land. A landlord is not engaged in a 
farming business for purposes of section 1301 with respect to either 
fixed rent or, with respect to amounts received on or after January 1, 
2003, rental income based on a share of a tenant's production determined 
under an unwritten agreement or a written agreement entered into after 
the tenant begins significant activities on the land. Whether the 
landlord materially participates in the tenant's farming business is 
irrelevant for purposes of section 1301.
    (3) Lessors of vessels used in fishing. A lessor of a vessel is 
engaged in a fishing business for purposes of section 1301 with respect 
to payments that are received under the lease and are based on a share 
of the catch from the lessee's use of the vessel in a fishing business 
(or a share of the proceeds from the sale of the catch) if this manner 
of payment is determined under a written lease agreement entered into 
before the lessee begins any significant fishing activities resulting in 
the catch. A lessor of a vessel is not engaged in a fishing business for 
purposes of section 1301 with respect to fixed lease payments or with 
respect to lease payments based on a share of the lessee's catch (or a 
share of the proceeds from the sale of the catch) if the share is 
determined under either an unwritten agreement or a written agreement 
entered into after the lessee begins significant fishing activities 
resulting in the catch.
    (c) Making, changing, or revoking an election--(1) In general. A 
farm income averaging election is made by filing Schedule J, ``Income 
Averaging for Farmers and Fishermen,'' with an individual's Federal 
income tax return for the election year (including a late or amended 
return if the period of limitation on filing a claim for credit or 
refund has not expired).
    (2) Changing or revoking an election. An individual may change the 
amount of the elected farm income in a previous election or revoke a 
previous election if the period of limitations on filing a claim for 
credit or refund has not expired for the election year.
    (d) Guidelines for calculation of section 1 tax--(1) Actual taxable 
income not affected. Under paragraph (a)(2) of this section, a 
determination of the section 1 tax for the election year involves a 
computation of the section 1 tax that would be imposed if taxable income 
for the election year were reduced by elected farm income and taxable 
income for each of the base years were increased by one-third of elected 
farm income. The reduction and increases required for purposes of this 
computation do not affect the actual taxable income for either the 
election year or the base years. Thus, for each of those years, the 
actual taxable income is taxable income determined without regard to any 
hypothetical reduction or increase required for purposes of the 
computation under paragraph (a)(2) of this section. The following 
illustrates this principle:
    (i) Any reduction or increase in taxable income required for 
purposes of the computation under paragraph (a)(2) of this section is 
disregarded in determining the taxable year in which a net operating 
loss carryover or net capital loss carryover is applied.
    (ii) The net section 1231 gain or loss and the character of any 
section 1231 items for the election year is determined without regard to 
any reduction in taxable income required for purposes

[[Page 770]]

of the computation under paragraph (a)(2) of this section.
    (iii) The section 68 overall limitation on itemized deductions for 
the election year is determined without regard to any reduction in 
taxable income required for purposes of the computation under paragraph 
(a)(2) of this section. Similarly, the section 68 limitation for a base 
year is not recomputed to take into account any allocation of elected 
farm income to the base year for such purposes.
    (iv) If a base year had a partially used capital loss, the remaining 
capital loss may not be applied to reduce the elected farm income 
allocated to the year for purposes of the computation under paragraph 
(a)(2) of this section.
    (v) If a base year had a partially used credit, the remaining credit 
may not be applied to reduce the section 1 tax attributable to the 
elected farm income allocated to the year for purposes of the 
computation under paragraph (a)(2) of this section.
    (2) Computation in base years--(i) In general. As provided in 
paragraph (a)(2)(ii) of this section, the election year section 1 tax 
includes the amounts by which the section 1 tax for each base year would 
be increased if taxable income for the year were increased by one-third 
of elected farm income. For this purpose, all allowable deductions 
(including the full amount of any net operating loss carryover) are 
taken into account in determining the taxable income for the base year 
even if the deductions exceed gross income and the result is negative. 
If the result is negative, however, any amount that may provide a 
benefit in another taxable year is added back in determining base year 
taxable income. Amounts that may provide a benefit in another year 
include--
    (A) The net operating loss (as defined in section 172(c)) for the 
base year;
    (B) The net operating loss for any other year to the extent carried 
forward from the base year under section 172(b)(2); and
    (C) The capital loss deduction allowed for the base year under 
section 1211(b)(1) or (2) to the extent such deduction does not reduce 
the capital loss carryover from the base year because it exceeds 
adjusted taxable income (as defined in section 1212(b)(2)(B)).
    (ii) Example. The rules of this paragraph (d)(2) are illustrated by 
the following example:

    Example. In 2001, F and F's spouse on their joint return elect to 
average $24,000 of income attributable to a farming business. One-third 
of the elected farm income, $8,000, is added to the 1999 base year 
income. In 1999, F and F's spouse reported adjusted gross income of 
$7,300 and claimed a standard deduction of $7,200 and a deduction for 
personal exemptions of $8,250. Therefore, their 1999 base year taxable 
income is -$8,150 [$7,300-($7,200 + $8,250)]. After adding the elected 
farm income to the negative taxable income, their 1999 base year taxable 
income would be zero [$8,000 + (-$8,150)=-$150]. If F and F's spouse 
elected to income average in 2002, and made the adjustments described in 
paragraph (d)(3) of this section to account for the 2001 election, their 
1999 base year taxable income for the 2002 election would be -$150.

    (3) Effect on subsequent elections--(i) In general. The reduction 
and increases in taxable income assumed in computing the election year 
section 1 tax (within the meaning of paragraph (a)(2) of this section) 
for an election year are treated as having actually occurred for 
purposes of computing the election year section 1 tax for any subsequent 
election year. Thus, if a base year for a farm income averaging election 
is also an election year for another farm income averaging election, the 
increase in the section 1 tax for that base year is determined after 
reducing taxable income by the elected farm income from the earlier 
election year. Similarly, if a base year for a farm income averaging 
election is also a base year for another farm income averaging election, 
the increase in the section 1 tax for that base year is determined after 
increasing taxable income by elected farm income allocated to the year 
from the earlier election year.
    (ii) Example. The rules of this paragraph (d)(3) are illustrated by 
the following example:

    Example. (i) T is a fisherman who uses the calendar taxable year. In 
each of the years 2007, 2008, and 2009, T's taxable income is $20,000, 
none of which is electible farm income. In 2010, T has taxable income of 
$30,000 (prior to any farm income averaging election), $10,000 of which 
is electible farm income. T makes a farm income averaging election with 
respect to $9,000 of the electible

[[Page 771]]

farm income for 2010. Under paragraph (a)(2)(ii) of this section, $3,000 
of elected farm income is allocated to each of the base years 2007, 
2008, and 2009. Under paragraph (a)(2) of this section, T's 2010 tax 
liability is the sum of the following amounts:
    (A) The section 1 tax on $21,000, which is T's taxable income of 
$30,000, minus elected farm income of $9,000.
    (B) For each of the base years 2007, 2008, and 2009, the amount by 
which the section 1 tax would be increased if one-third of elected farm 
income were allocated to each year. The amount for each year is the 
section 1 tax on $23,000 (T's taxable income of $20,000, plus $3,000, 
which is one-third of elected farm income for the 2010 election year), 
minus the section 1 tax on $20,000.
    (ii) In 2011, T has taxable income of $50,000, $12,000 of which is 
electible farm income. T makes a farm income averaging election with 
respect to all $12,000 of the electible farm income for 2011. Under 
paragraph (a)(2)(ii) of this section, $4,000 of elected farm income is 
allocated to each of the base years 2008, 2009, and 2010. Under 
paragraph (a)(2) of this section, T's 2011 tax liability is the sum of 
the following amounts:
    (A) The section 1 tax on $38,000, which is T's taxable income of 
$50,000, minus elected farm income of $12,000.
    (B) For each of the base years 2008 and 2009, the amount by which 
section 1 tax would be increased if, after adjustments for previous farm 
income averaging elections pursuant to paragraph (d)(3)(i) of this 
section, one-third of 2011 elected farm income were allocated to each 
year. The amount for each year is the section 1 tax on $27,000 (T's 
taxable income of $20,000 increased by $3,000 for T's 2010 farm income 
averaging election and further increased by $4,000, which is one-third 
of elected farm income for the 2011 election year), minus the section 1 
tax on $23,000 (T's taxable income of $20,000 increased by $3,000 for 
T's 2010 farm income averaging election).
    (C) For base year 2010, the amount by which section 1 tax would be 
increased if, after adjustments for previous farm income averaging 
elections pursuant to paragraph (d)(3)(i) of this section, one-third of 
elected farm income were allocated to that year. This amount is the 
section 1 tax on $25,000 (T's 2010 taxable income of $30,000 reduced by 
$9,000 for T's 2010 farm income averaging election and increased by 
$4,000, which is one-third of elected farm income for the 2011 election 
year), minus the section 1 tax on $21,000 (T's taxable income of $30,000 
reduced by $9,000 for T's 2010 farm income averaging election).

    (4) Deposits into Merchant Marine Capital Construction Fund--(i) 
Reductions to taxable income and electible farm income. Under section 
7518(c)(1)(A), certain deposits to a Merchant Marine Capital 
Construction Fund (CCF) reduce taxable income for purposes of the 
Internal Revenue Code (the CCF reduction). The amount of the CCF 
reduction is limited under section 7518(a)(1)(A) to the taxpayer's 
taxable income (determined without regard to the reduction) attributable 
to specified maritime operations including operations in fisheries of 
the United States. The CCF reduction is taken into account in 
determining the taxable income used in computations under this section. 
In addition, except to the extent the amount described in section 
7518(a)(1)(A) is not attributable to the individual's fishing business, 
the CCF reduction is treated in computing electible farm income as an 
item of deduction attributable to the individual's fishing business.
    (ii) Example. The rules of this paragraph (d)(4) are illustrated by 
the following example:

    Example. (i) T is a fisherman who uses the calendar taxable year. In 
each of the years 2007, 2008, and 2009, T's taxable income (before 
taking any CCF reduction into account) is $20,000. For taxable year 
2008, all of T's income is described in section 7518(a)(1)(A) and is 
attributable to T's fishing business. T makes a $5,000 deposit into a 
CCF for taxable year 2008. In 2010, T has total taxable income of 
$30,000 (before taking any CCF reduction into account). T's electible 
farm income for 2010 (before taking the CCF reduction into account) is 
$10,000, all of which is described in section 7518(a)(1)(A) and is 
attributable to T's fishing business. For taxable year 2010, T makes a 
$4,000 deposit into a CCF.
    (ii) The amount of the 2010 CCF deposit reduces taxable income. 
Accordingly, T's taxable income for 2010 is $26,000 ($30,000-$4,000). In 
addition, the entire amount of the CCF reduction is treated as an item 
of deduction attributable to T's fishing business. Accordingly, T's 
electible farm income for 2010 is $6,000 ($10,000-$4,000). Similarly, 
the amount of the 2008 CCF deposit reduces T's taxable income for 2008. 
Accordingly, T's taxable income for 2008 is $15,000 ($20,000-$5,000).
    (iii) T makes an income averaging election with respect to all 
$6,000 of the electible farm income for 2010. Under paragraph (a)(2)(ii) 
of this section, $2,000 of elected farm income is allocated to each of 
the base years 2007, 2008, and 2009. Under paragraph (a)(2) of this 
section, T's 2010 tax liability is the sum of the following amounts:
    (A) The section 1 tax on $20,000, which is T's taxable income of 
$26,000 ($30,000 reduced by the $4,000 CCF deposit), minus elected farm 
income of $6,000.

[[Page 772]]

    (B) For each of the base years 2007, 2008, and 2009, the amount by 
which section 1 tax would be increased if one-third of elected farm 
income were allocated to each year. The amount for base years 2007 and 
2009 is the section 1 tax on $22,000, (T's taxable income of $20,000, 
plus $2,000, which is one-third of elected farm income for the election 
year), minus the section 1 tax on $20,000. The amount for base year 2008 
is the section 1 tax on $17,000, which is T's taxable income of $15,000 
($20,000 reduced by the $5,000 CCF deposit), plus $2,000 (one-third of 
elected farm income for the election year), minus the section 1 tax on 
$15,000.

    (e) Electible farm income--(1) Identification of items attributable 
to a farming or fishing business--(i) In general. Farm and fishing 
income includes items of income, deduction, gain, and loss attributable 
to an individual's farming or fishing business. Farm and fishing losses 
include, to the extent attributable to a farming or fishing business, 
any net operating loss carryover or carryback or net capital loss 
carryover to an election year. Income, gain, or loss from the sale of 
development rights, grazing rights, and other similar rights is not 
treated as attributable to a farming business. In general, farm and 
fishing income does not include compensation received as an employee. 
However, a shareholder of an S corporation engaged in a farming or 
fishing business may treat compensation received from the corporation as 
farm or fishing income if the compensation is paid by the corporation in 
the conduct of the farming or fishing business. If a crewmember on a 
vessel engaged in commercial fishing (within the meaning of section 3 of 
the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1802(4)) is compensated by a share of the boat's catch of fish or a 
share of the proceeds from the sale of the catch, the crewmember is 
treated for purposes of section 1301 as engaged in a fishing business 
and the compensation is treated for such purposes as income from a 
fishing business.
    (ii) Gain or loss on sale or other disposition of property--(A) In 
general. Gain or loss from the sale or other disposition of property 
that was regularly used in the individual's farming or fishing business 
for a substantial period of time is treated as attributable to a farming 
or fishing business. For this purpose, the term property does not 
include land, but does include structures affixed to land. Property that 
has always been used solely in the farming or fishing business by the 
individual is deemed to meet both the regularly used and substantial 
period tests. Whether property not used solely in the farming or fishing 
business was regularly used in the farming or fishing business for a 
substantial period of time depends on all of the facts and 
circumstances.
    (B) Cessation of a farming or fishing business. If gain or loss 
described in paragraph (e)(1)(ii)(A) of this section is realized after 
cessation of a farming or fishing business, the gain or loss is treated 
as attributable to a farming or fishing business only if the property is 
sold within a reasonable time after cessation of the farming or fishing 
business. A sale or other disposition within one year of cessation of 
the farming or fishing business is presumed to be within a reasonable 
time. Whether a sale or other disposition that occurs more than one year 
after cessation of the farming or fishing business is within a 
reasonable time depends on all of the facts and circumstances.
    (2) Determination of amount that may be elected farm income--(i) 
Electible farm income. (A) The maximum amount of income that an 
individual may elect to average (electible farm income) is the sum of 
any farm and fishing income and gains, minus any farm and fishing 
deductions or losses (including loss carryovers and carrybacks) that are 
allowed as a deduction in computing the individual's taxable income.
    (B) Individuals conducting both a farming business and a fishing 
business must calculate electible farm income by combining income, 
gains, deductions, and losses derived from the farming business and the 
fishing business.
    (C) Except as otherwise provided in paragraph (d)(4) of this 
section, the amount of any CCF reduction is treated as a deduction from 
income attributable to a fishing business in calculating electible farm 
income.
    (D) Electible farm income may not exceed taxable income, and 
electible

[[Page 773]]

farm income from net capital gain attributable to a farming or fishing 
business may not exceed total net capital gain. Subject to these 
limitations, an individual who has both ordinary income and net capital 
gain from a farming or fishing business may elect to average any 
combination of the ordinary income and net capital gain.
    (ii) Examples. The rules of this paragraph (e)(2) are illustrated by 
the following examples:

    Example 1. A has ordinary income from a farming business of $200,000 
and deductible expenses from a farming business of $50,000. A's taxable 
income is $150,000 ($200,000-$50,000). Under paragraph (e)(2)(i) of this 
section, A's electible farm income is $150,000, all of which is ordinary 
income.
    Example 2. B has capital gain of $20,000 that is not from a farming 
or fishing business, capital loss from a farming business of $30,000, 
and ordinary income from a farming business of $100,000. Under section 
1211(b), B's allowable capital loss is limited to $23,000. B's taxable 
income is $97,000 (($20,000-$23,000) + $100,000). B has a capital loss 
carryover from a farming business of $7,000 ($30,000 total loss - 
$23,000 allowable loss). Under paragraph (e)(2)(i) of this section, B's 
electible farm income is $77,000 ($100,000 ordinary income from a 
farming business, minus $23,000 capital loss from a farming business), 
all of which is ordinary income.
    Example 3. C has ordinary income from a fishing business of $200,000 
and ordinary loss from a farming business of $60,000. C's taxable income 
is $140,000 ($200,000 - $60,000). Under paragraph (e)(2)(i)(B) of this 
section, C must deduct the farm loss from the fishing income in 
determining C's electible farm income. Therefore, C's electible farm 
income is $140,000 ($200,000-$60,000), all of which is ordinary income.
    Example 4. D has ordinary income from a farming business of $200,000 
and ordinary loss of $50,000 that is not from a farming or fishing 
business. D's taxable income is $150,000 ($200,000 - $50,000). Under 
paragraph (e)(2)(i)(D) of this section, electible farm income may not 
exceed taxable income. Therefore, D's electible farm income is $150,000, 
all of which is ordinary income.
    Example 5. E has capital gain from a farming business of $50,000, 
capital loss of $40,000 that is not from a farming or fishing business, 
and ordinary income from a farming business of $60,000. E's taxable 
income is $70,000 (($50,000 - $40,000) + $60,000). Under paragraph 
(e)(2)(i)(D) of this section, electible farm income may not exceed 
taxable income, and electible farm income from net capital gain 
attributable to a farming or fishing business may not exceed total net 
capital gain. Therefore, E's electible farm income is $70,000 of which 
$10,000 is capital gain and $60,000 is ordinary income.

    (f) Miscellaneous rules--(1) Short taxable year--(i) In general. If 
a base year or an election year is a short taxable year, the rules of 
section 443 and the regulations thereunder apply for purposes of 
calculating the section 1 tax.
    (ii) Base year is a short taxable year. If a base year is a short 
taxable year, elected farm income is allocated to such year for purposes 
of paragraph (a)(2) of this section after the taxable income for such 
year has been annualized.
    (iii) Election year is a short taxable year. In applying paragraph 
(a)(2) of this section for purposes of determining tax computed on the 
annual basis (within the meaning of section 443(b)(1)) for an election 
year that is a short taxable year--
    (A) The taxable income and the electible farm income for the year 
are annualized; and
    (B) The taxpayer may designate all or any part of the annualized 
electible farm income as elected farm income.
    (2) Changes in filing status. An individual is not prohibited from 
making a farm income averaging election solely because the individual's 
filing status is not the same in an election year and the base years. 
For example, an individual who is married and files a joint return in 
the election year, who filed as single in one or more of the base years, 
may elect to average farm or fishing income, by using the single filing 
status to compute the increase in section 1 taxes for the base years in 
which the individual filed as single.
    (3) Employment tax. A farm income averaging election has no effect 
in determining the amount of wages for purposes of the Federal Insurance 
Contributions Act (FICA), the Federal Unemployment Tax Act (FUTA), and 
the Collection of Income Tax at Source on Wages (Federal income tax 
withholding), or the amount of net earnings from self-employment for 
purposes of the Self-Employment Contributions Act (SECA).
    (4) Alternative minimum tax. A farm income averaging election is 
disregarded in computing the tentative minimum tax and the regular tax 
under section 55 for the election year

[[Page 774]]

or any base year. The election is taken into account, however, in 
determining the regular tax liability under section 53(c) for the 
election year.
    (5) Unearned income of minor child. In an election year, if a minor 
child's investment income is taxable under section 1(g) and a parent 
makes a farm income averaging election, the tax rate used for purposes 
of applying section 1(g) is the rate determined after application of the 
election. In a base year, however, the tax on a minor child's investment 
income is not affected by a farm income averaging election.
    (g) Effective/applicability date. This section applies for taxable 
years beginning after December 15, 2010. See the provisions of 
Sec. Sec.  1.1301-1 and 1.1301-1T as in effect on December 14, 2010 for 
rules that apply for taxable years beginning on or before December 15, 
2010. In addition, a taxpayer may apply paragraph (b)(1)(ii) of this 
section in taxable years beginning after December 31, 2003.

[T.D. 8972, 67 FR 819, Jan. 8, 2002; 67 FR 5203, Feb. 5, 2002; T.D. 
9417, 73 FR 42523, July 22, 2008; T.D. 9509, 75 FR 78157, Dec. 15, 2010]

        Readjustment of Tax Between Years and Special Limitations

        Mitigation of Effect of Limitations and Other Provisions



Sec.  1.1311(a)-1  Introduction.

    (a) Part II (section 1311 and following), subchapter Q, chapter 1 of 
the Code, provides certain rules for the correction of the effect of an 
erroneous treatment of an item in a taxable year which is closed by the 
statute of limitations or otherwise, in cases where, in connection with 
the ascertainment of the tax for another taxable year, it has been 
determined that there was an erroneous treatment of such item in the 
closed year.
    (b) In most situations falling within this part the correction of 
the effect of the error on a closed year can be made only if either the 
Commissioner or the taxpayer has taken a position in another taxable 
year which is inconsistent with the erroneous treatment of the item in 
the closed year. If a refund or credit would result from the correction 
of the error in the closed year, then the Commissioner must be the one 
maintaining the inconsistent position. For example, if the taxpayer 
erroneously included an item of income on his return for an earlier year 
which is now closed and the Commissioner successfully requires it to be 
included in a later year, then the correction of the effect of the 
erroneous inclusion of that item in the closed year may be made since 
the Commissioner has maintained a position inconsistent with the 
treatment of such item in such closed year. On the other hand, if an 
additional assessment would result from the correction of the error in 
the closed year, then the taxpayer must be the one maintaining the 
inconsistent position. For example, if the taxpayer deducted an item in 
an earlier year which is now closed and he successfully contends that 
the item should be deducted in a later year, then the correction of the 
effect of the erroneous deduction of that item in the closed year may be 
made since the taxpayer has taken a position inconsistent with the 
treatment of such item in such earlier year.
    (c) There are two special circumstances which fall within this part 
but which do not require that an inconsistent position be maintained. 
One of these circumstances relates to the inclusion of an item of income 
in the correct year and the other relates to the allowance of a 
deduction in the correct year. In the first situation, if the 
Commissioner takes the position by a deficiency notice or before the Tax 
Court that an item of income should be included in the gross income of a 
taxpayer for a particular year and it is ultimately determined that such 
item was not so includible, then such item can be included in the income 
of the proper year if that year was not closed at the time the 
Commissioner took his position. In the second situation, if the taxpayer 
claims that a deduction should be allowed for a particular year and it 
is ultimately determined that the deduction was not allowable in that 
year, then the taxpayer may take the deduction in the proper year if 
that year was not closed at the time the taxpayer first claimed a 
deduction.

[T.D. 6500, 25 FR 12031, Nov. 26, 1960]

[[Page 775]]



Sec.  1.1311(a)-2  Purpose and scope of section 1311.

    (a) Section 1311 provides for the correction of the effect of 
certain errors under circumstances specified in section 1312 when one or 
more provisions of law, such as the statute of limitations, would 
otherwise prevent such correction. Section 1311 may be applied to 
correct the effect of certain errors if, on the date of a determination 
(as defined in section 1313(a) and the regulations thereunder), 
correction is prevented by the operation of any provision of law other 
than sections 1311 through 1315 and section 7122 (relating to 
compromises) and the corresponding provisions of prior revenue laws. 
Examples of provisions preventing such corrections are sections 6501, 
6511, 6532, and 6901 (c), (d) and (e), relating to periods of 
limitations; section 6212(c) and 6512 relating to the effect of petition 
to the Tax Court of the United States on further deficiency letters and 
on credits or refunds; section 7121 relating to closing agreements; and 
sections 6401 and 6514 relating to payments, refunds, or credits after 
the period of limitations has expired. Section 1311 may also be applied 
to correct the effect of an error if, on the date of the determination, 
correction of the error is prevented by the operation of any rule of 
law, such as res judicata or estoppel.
    (b) The determination (including a determination under section 1313 
(a)(4)) may be with respect to any of the taxes imposed by subtitle A of 
the Internal Revenue Code of 1954, by chapter 1 and subchapters A, B, D, 
and E of chapter 2 of the Internal Revenue Code of 1939, or by the 
corresponding provisions of any prior revenue act, or by more than one 
of such provisions. Section 1311 may be applied to correct the effect of 
the error only as to the tax or taxes with respect to which the error 
was made which correspond to the tax or taxes with respect to which the 
determination relates. Thus, if the determination relates to a tax 
imposed by chapter 1 of the Internal Revenue Code of 1954, the 
adjustment may be only with respect to the tax imposed by such chapter 
or by the corresponding provisions of prior law.
    (c) Section 1311 is not applicable if, on the date of the 
determination, correction of the effect of the error is permissible 
without recourse to said section.
    (d) If the tax liability for the year with respect to which the 
error was made has been compromised under section 7122 or the 
corresponding provisions of prior revenue laws, no adjustment may be 
made under section 1311 with respect to said year.
    (e) No adjustment may be made under section 1311 for any taxable 
year beginning prior to January 1, 1932. See section 1314(d).
    (f) Section 1311 applies only to a determination (as defined in 
section 1313(a) and Sec. Sec.  1.1313(a)-1 to 1.1313 (a)-4, inclusive) 
made after November 14, 1954. Section 3801 of the Internal Revenue Code 
of 1939 and the regulations thereunder apply to determinations, as 
defined therein, made on or before November 14, 1954. See section 1315.

[T.D. 6500, 25 FR 12031, Nov. 26, 1960]



Sec.  1.1311(b)-1  Maintenance of an inconsistent position.

    (a) In general. Under the circumstances stated in Sec.  1.1312-1, 
Sec.  1.1312-2, paragraph (a) of Sec.  1.1312-3, Sec.  1.1312-5, Sec.  
1.1312-6, and Sec.  1.1312-7, the maintenance of an inconsistent 
position is a condition necessary for adjustment. The requirement in 
such circumstances is that a position maintained with respect to the 
taxable year of the determination and which is adopted in the 
determination be inconsistent with the erroneous inclusion, exclusion, 
omission, allowance, disallowance, recognition, or nonrecognition, as 
the case may be, with respect to the taxable year of the error. That is, 
a position successfully maintained with respect to the taxable year of 
the determination must be inconsistent with the treatment accorded an 
item which was the subject of an error in the computation of the tax for 
the closed taxable year. Adjustments under the circumstances stated in 
paragraph (b) of Sec.  1.1312-3 and in Sec.  1.1312-4 are made without 
regard to the maintenance of an inconsistent position.
    (b) Adjustments resulting in refund or credit. (1) An adjustment 
under any of the circumstances stated in Sec.  1.1312-1, Sec.  1.1312-5, 
Sec.  1.1312-6, or Sec.  1.1312-7 which

[[Page 776]]

would result in the allowance of a refund or credit is authorized only 
if (i) the Commissioner, in connection with a determination, has 
maintained a position which is inconsistent with the erroneous 
inclusion, omission, disallowance, recognition, or nonrecognition, as 
the case may be, in the year of the error, and (ii) such inconsistent 
position is adopted in the determination.

    Example: A taxpayer who keeps his books on the cash method 
erroneously included as income on his return for 1954 an item of accrued 
interest. After the period of limitations on refunds for 1954 had 
expired, the district director, on behalf of the Commissioner, proposed 
an adjustment for the year 1955 on the ground that the item of interest 
was received in 1955 and, therefore, was properly includible in gross 
income for that year. The taxpayer and the district director entered 
into an agreement which meets all of the requirements of Sec.  
1.1313(a)-4 and which determines that the interest item was includible 
in gross income for 1955. The Commissioner has maintained a position 
inconsistent with the inclusion of the interest item for 1954. As the 
determination (the agreement pursuant to Sec.  1.1313(a)-4) adopted such 
inconsistent position, an adjustment is authorized for the year 1954.

    (2) An adjustment under circumstances stated in Sec.  1.1312-1, 
Sec.  1.1312-5, Sec.  1.1312-6, or Sec.  1.1312-7 which would result in 
the allowance of a refund or credit is not authorized if the taxpayer 
with respect to whom the determination is made, and not the 
Commissioner, has maintained such inconsistent position.

    Example: In the example in subparagraph (1) of this paragraph, 
assume that the Commissioner asserted a deficiency for 1955 based upon 
other items for that year but, in computing the net income upon which 
such deficiency was based, did not include the item of interest. The 
taxpayer appealed to the Tax Court and in his petition asserted that the 
interest item should be included in gross income for 1955. The Tax Court 
in 1960 included the item of interest in its redetermination of tax for 
the year 1955. In such case no adjustment would be authorized for 1954 
as the taxpayer, and not the Commissioner, maintained a position 
inconsistent with the erroneous inclusion of the item of interest in the 
gross income of the taxpayer for that year.

    (c) Adjustments resulting in additional assessments. (1) An 
adjustment under any of the circumstances stated in Sec.  1.1312-2, 
paragraph (a) of Sec.  1.1312-3, Sec.  1.1312-5, Sec.  1.1312-6, or 
Sec.  1.1312-7 which would result in an additional assessment is 
authorized only if (i) the taxpayer with respect to whom the 
determination is made has, in connection therewith, maintained a 
position which is inconsistent with the erroneous exclusion, omission, 
allowance, recognition, or nonrecognition, as the case may be, in the 
year of the error, and (ii) such inconsistent position is adopted in the 
determination.

    Example: A taxpayer in his return for 1950 claimed and was allowed a 
deduction for a loss arising from a casualty. After the taxpayer had 
filed his return for 1951 and after the period of limitations upon the 
assessment of a deficiency for 1950 had expired, it was discovered that 
the loss actually occurred in 1951. The taxpayer, therefore, filed a 
claim for refund for the year 1951 based upon the allowance of a 
deduction for the loss in that year, and the claim was allowed by the 
Commissioner in 1955. The taxpayer thus has maintained a position 
inconsistent with the allowance of the deduction for 1950 by filing a 
claim for refund for 1951 based upon the same deduction. As the 
determination (the allowance of the claim for refund) adopts such 
inconsistent position, an adjustment is authorized for the year 1950.

    (2) An adjustment under the circumstances stated in Sec.  1.1312-2, 
paragraph (a) of Sec.  1.1312-3, Sec.  1.1312-5, Sec.  1.1312-6, or 
Sec.  1.1312-7 which would result in an additional assessment is not 
authorized if the Commissioner, and not the taxpayer, has maintained 
such inconsistent position.

    Example: In the example in subparagraph (1) of this paragraph, 
assume that the taxpayer did not file a claim for refund for 1951 but 
the Commissioner issued a notice of deficiency for 1951 based upon other 
items. The taxpayer filed a petition with the Tax Court of the United 
States and the Commissioner in his answer voluntarily proposed the 
allowance for 1951 of a deduction for the loss previously allowed for 
1950. The Tax Court took the deduction into account in its 
redetermination in 1955 of the tax for the year 1951. In such case no 
adjustment would be authorized for the year 1950 as the Commissioner, 
and not the taxpayer, has maintained a position inconsistent with the 
allowance of a deduction for the loss in that year.

[T.D. 6500, 25 FR 12032, Nov. 26, 1960, as amended by T.D. 6617, 27 FR 
10823, Nov. 7, 1962]

[[Page 777]]



Sec.  1.1311(b)-2  Correction not barred at time of erroneous action.

    (a) An adjustment under the circumstances stated in paragraph (b) of 
Sec.  1.1312-3 (relating to the double exclusion of an item of gross 
income) which would result in an additional assessment, is authorized 
only if assessment of a deficiency against the taxpayer or related 
taxpayer for the taxable year in which the item is includible was not 
barred by any law or rule of law at the time the Commissioner first 
maintained, in a notice of deficiency sent pursuant to section 6212 (or 
section 272(a) of the Internal Revenue Code of 1939) or before the Tax 
Court of the United States, that the item described in paragraph (b) of 
Sec.  1.1312-3 should be included in the gross income of the taxpayer in 
the taxable year to which the determination relates.
    (b) An adjustment under the circumstances stated in Sec.  1.1312-4 
(relating to the double disallowance of a deduction or credit), which 
would result in the allowance of a credit or refund, is authorized only 
if a credit or refund to the taxpayer or related taxpayer, attributable 
to such adjustment, was not barred by any law or rule of law when the 
taxpayer first maintained in writing before the Commissioner or the Tax 
Court that he was entitled to such deduction or credit for the taxable 
year to which the determination relates. The taxpayer will be considered 
to have first maintained in writing before the Commissioner or the Tax 
Court that he was entitled to such deduction or credit when he first 
formally asserts his right to such deduction or credit as, for example, 
in a return, in a claim for refund, or in a petition (or an amended 
petition) before the Tax Court.
    (c) Under the circumstances of adjustment with respect to which the 
conditions stated in this section are applicable, the conditions stated 
in Sec.  1.1311(b)-1 (maintenance of an inconsistent position) are not 
required. See paragraph (b) of Sec.  1.1312-3 and Sec.  1.1312-4 for 
examples of the application of this section.

[T.D. 6500, 25 FR 12032, Nov. 26, 1960]



Sec.  1.1311(b)-3  Existence of relationship in case of adjustment 
by way of deficiency assessment.

    (a) Except for cases described in paragraph (b) of Sec.  1.1312-3, 
no adjustment by way of a deficiency assessment shall be made, with 
respect to a related taxpayer, unless the relationship existed both at 
some time during the taxable year with respect to which the error was 
made and at the time the taxpayer with respect to whom the determination 
is made first maintained the inconsistent position with respect to the 
taxable year to which the determination relates. In the case of an 
adjustment by way of a deficiency assessment under the circumstance 
described in paragraph (b) of Sec.  1.1312-3 (where the maintenance of 
an inconsistent position is not required), the relationship need exist 
only at some time during the taxable year in which the error was made.
    (b) If the inconsistent position is maintained in a return, claim 
for refund, or petition (or amended petition) to the Tax Court of the 
United States for the taxable year in respect to which the determination 
is made, the requisite relationship must exist on the date of filing 
such document. If the inconsistent position is maintained in more than 
one of such documents, the requisite date is the date of filing of the 
document in which it was first maintained. If the inconsistent position 
was not thus maintained, then the relationship must exist on the date of 
the determination as, for example, where at the instance of the taxpayer 
a deduction is allowed, the right to which was not asserted in a return, 
claim for refund, or petition to the Tax Court, and a determination is 
effected by means of a closing agreement or an agreement under section 
1313(a)(4).

[T.D. 6500, 25 FR 12033, Nov. 26, 1960]



Sec.  1.1312-1  Double inclusion of an item of gross income.

    (a) Paragraph (1) of section 1312 applies if the determination 
requires the inclusion in a taxpayer's gross income of an item which was 
erroneously included in the gross income of the same taxpayer for 
another taxable year or of a related taxpayer for the same or another 
taxable year.

[[Page 778]]

    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. A taxpayer who keeps his books on the cash method 
erroneously included in income on his return for 1947 an item of accrued 
rent. In 1952, after the period of limitation on refunds for 1947 had 
expired, the Commissioner discovered that the taxpayer received this 
rent in 1948 and asserted a deficiency for the year 1948 which is 
sustained by the Tax Court of the United States in 1955. An adjustment 
in favor of the taxpayer is authorized with respect to the year 1947. If 
the taxpayer had returned the rent for both 1947 and 1948 and by a 
determination was denied a refund claim for 1948 on account of the rent 
item, a similar adjustment is authorized.
    Example 2. A husband assigned to his wife salary to be earned by him 
in the year 1952. The wife included such salary in her separate return 
for that year and the husband omitted it. The Commissioner asserted a 
deficiency against the wife for 1952 with respect to a different item; 
she contested that deficiency, and the Tax Court entered an order in her 
case which became final in 1955. The wife would therefore be barred by 
section 6512(a) from claiming a refund for 1952. Thereafter, the 
Commissioner asserted a deficiency against the husband on account of the 
omission of such salary from his return for 1952. In 1955 the husband 
and the Commissioner enter into a closing agreement for the year 1952 in 
which the salary is taxed to the husband. An adjustment is authorized 
with respect to the wife's tax for 1952.

[T.D. 6500, 25 FR 12033, Nov. 26, 1960]



Sec.  1.1312-2  Double allowance of a deduction or credit.

    (a) Paragraph (2) of section 1312 applies if the determination 
allows the taxpayer a deduction or credit which was erroneously allowed 
the same taxpayer for another taxable year or a related taxpayer for the 
same or another taxable year.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. A taxpayer in his return for 1950 claimed and was allowed 
a deduction for destruction of timber by a forest fire. Subsequently, it 
was discovered that the forest fire occurred in 1951 rather than 1950. 
After the expiration of the period of limitations for the assessment of 
a deficiency for 1950, the taxpayer filed a claim for refund for 1951 
based upon a deduction for the fire loss in that year. The Commissioner 
in 1955 allows the claim for refund. An adjustment is authorized with 
respect to the year 1950.
    Example 2. The beneficiary of a testamentary trust in his return for 
1949 claimed, and was allowed, a deduction for depreciation of the trust 
property. The Commissioner asserted a deficiency against the beneficiary 
for 1949 with respect to a different item and a final decision of the 
Tax Court of the United States was rendered in 1951, so that the 
Commissioner was thereafter barred by section 272(f) of the Internal 
Revenue Code of 1939 from asserting a further deficiency against the 
beneficiary for 1949. The trustee thereafter filed a timely refund claim 
contending that, under the terms of the will, the trust, and not the 
beneficiary, was entitled to the allowance for depreciation. The court 
in 1955 sustains the refund claim. An adjustment is authorized with 
respect to the beneficiary's tax for 1949.

[T.D. 6500, 25 FR 12033, Nov. 26, 1960]



Sec.  1.1312-3  Double exclusion of an item of gross income.

    (a) Items included in income or with respect to which a tax was 
paid. (1) Paragraph (3)(A) of section 1312 applies if the determination 
requires the exclusion, from a taxpayer's gross income, of an item 
included in a return filed by the taxpayer, or with respect to which tax 
was paid, and which was erroneously excluded or omitted from the gross 
income of the same taxpayer for another taxable year or of a related 
taxpayer for the same or another taxable year.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example 1. (i) A taxpayer received payments in 1951 under a contract 
for the performance of services and included the payments in his return 
for that year. After the expiration of the period of limitations for the 
assessment of a deficiency for 1950, the Commissioner issued a notice of 
deficiency to the taxpayer for the year 1951 based upon adjustments to 
other items, and the taxpayer filed a petition with the Tax Court of the 
United States and maintained in the proceedings before the Tax Court 
that he kept his books on the accrual basis and that the payments 
received in 1951 were on income that had accrued and was properly 
taxable in 1950. A final decision of the Tax Court was rendered in 1955 
excluding the payments from 1951 income. An adjustment in favor of the 
Commissioner is authorized with respect to the year 1950, whether or not 
a tax had been paid on the income reported in the 1951 return.

[[Page 779]]

    (ii) Assume the same facts as in (i), except that the taxpayer had 
not included the payments in any return and had not paid a tax thereon. 
No adjustment would be authorized under section 1312(3)(A) with respect 
to the year 1950. If the taxpayer, however, had paid a deficiency 
asserted for 1951 based upon the inclusion of the payments in 1951 
income and thereafter successfully sued for refund thereof, an 
adjustment would be authorized with respect to the year 1950. (See 
paragraph (b) of this section for circumstances under which correction 
is authorized with respect to items not included in income and on which 
a tax was not paid.)
    Example 2. A father and son conducted a partnership business, each 
being entitled to one-half of the net profits. The father included the 
entire net income of the partnership in his return for 1948, and the son 
included no portion of this income in his return for that year. Shortly 
before the expiration of the period of limitations with respect to 
deficiency assessments and refund claims for both father and son for 
1948, the father filed a claim for refund of that portion of his 1948 
tax attributable to the half of the partnership income which should have 
been included in the son's return. The court sustains the claim for 
refund in 1955. An adjustment is authorized with respect to the son's 
tax for 1948.

    (b) Items not included in income and with respect to which the tax 
was not paid. (1) Paragraph (3)(B) of section 1312 applies if the 
determination requires the exclusion from gross income of an item not 
included in a return filed by the taxpayer and with respect to which a 
tax was not paid, but which is includible in the gross income of the 
same taxpayer for another taxable year, or in the gross income of a 
related taxpayer for the same or another taxable year. This is one of 
the two circumstances in which the maintenance of an inconsistent 
position is not a requirement for an adjustment, but the requirements in 
paragraph (a) of Sec.  1.1311(b)-2 must be fulfilled (correction not 
barred at time of erroneous action).
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example 1. The taxpayer, A, who computes his income by use of the 
accrual method of accounting, performed in 1949 services for which he 
received payments in 1949 and 1950. He did not include in his return for 
either 1949 or 1950 the payments which he received in 1950, and he paid 
no tax with respect to such payments. In 1952 the Commissioner sent a 
notice of deficiency to A with respect to the year 1949, contending that 
A should have included all of such payments in his return for that year. 
A contested the deficiency on the basis that in 1949 he had no accruable 
right to the payments which he received in 1950. In 1955 (after the 
expiration of the period of limitations for assessing deficiencies with 
respect to 1950), the Tax Court sustains A's position. The Commissioner 
may assess a deficiency for 1950, since a deficiency assessment for that 
year was not barred when he sent the notice of deficiency with respect 
to 1949.
    Example 2. B and C were partners in 1950, each being entitled to 
one-half of the profits of the partnership business. During 1950, B 
received an item of income which he treated as partnership income so 
that his return for that year reflected only 50 percent of such item. C, 
however, included no part of such item in any return and paid no tax 
with respect thereto. In 1952, the Commissioner sent to C a notice of 
deficiency with respect to 1950, contending that his return for that 
year should have reflected 50 percent of such item. C contested the 
deficiency on the basis that such item was not partnership income. In 
1955, after the expiration of the period of limitations for assessing 
deficiencies with respect to 1950, the Tax Court sustained C's position. 
The Commissioner may assess a deficiency against B with respect to 1950 
requiring him to include the entire amount of such item in his income 
since assessment of the deficiency was not barred when the Commissioner 
sent the notice of deficiency with respect to such item to C.

[T.D. 6500, 25 FR 12034, Nov. 26, 1960]



Sec.  1.1312-4  Double disallowance of a deduction or credit.

    (a) Paragraph (4) of section 1312 applies if the determination 
disallows a deduction or credit which should have been, but was not, 
allowed to the same taxpayer for another taxable year or to a related 
taxpayer for the same or another taxable year. This is one of the two 
circumstances in which the maintenance of an inconsistent position is 
not a requirement for an adjustment but the requirements in paragraph 
(b) of Sec.  1.1311(b)-2 must be fulfilled (correction not barred at 
time of erroneous action).
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. The taxpayer, A, who computes his income by use of the 
accrual method of accounting, deducted in his return for the taxable 
year 1951 an item of expense which

[[Page 780]]

he paid in such year. At the time A filed his return for 1951, the 
statute of limitations for 1950 had not expired. Subsequently, the 
Commissioner asserted a deficiency for 1951 based on the position that 
the liability for such expense should have been accrued for the taxable 
year 1950. In 1955, after the period of limitations on refunds for 1950 
had expired, there was a determination by the Tax Court disallowing such 
deduction for the taxable year 1951. A is entitled to an adjustment for 
the taxable year 1950. However, if such liability should have been 
accrued for the taxable year 1946 instead of 1950, A would not be 
entitled to an adjustment, if a credit or refund with respect to 1946 
was already barred when he deducted such expense for the taxable year 
1951.
    Example 2. The taxpayer, B, in his return for 1951 claimed a 
deduction for a charitable contribution. The Commissioner asserted a 
deficiency for such year contending that 50 percent of the deduction 
should be disallowed, since the contribution was made from community 
property 50 percent of which was attributable to B's spouse. The 
deficiency is sustained by the Tax Court in 1956, subsequent to the 
period of limitations within which B's spouse could claim a refund with 
respect to 1951. An adjustment is permitted to B's spouse, a related 
taxpayer, since a refund attributable to a deduction by her of such 
contribution was not barred when B claimed the deduction.

[T.D. 6500, 25 FR 12034, Nov. 26, 1960]



Sec.  1.1312-5  Correlative deductions and inclusions for trusts 
or estates and legatees, beneficiaries, or heirs.

    (a) Paragraph (5) of section 1312 applies to distributions by a 
trust or an estate to the beneficiaries, heirs, or legatees. If the 
determination relates to the amount of the deduction allowed by sections 
651 and 661 or the inclusion in taxable income of the beneficiary 
required by sections 652 and 662 (including amounts falling within 
subpart D, subchapter J, chapter 1 of the Code, relating to treatment of 
excess distributions by trusts), or if the determination relates to the 
additional deduction (or inclusion) specified in section 162 (b) and (c) 
of the Internal Revenue Code of 1939 (or the corresponding provisions of 
a prior revenue act), with respect to amounts paid, credited, or 
required to be distributed to the beneficiaries, heirs, and legatees, 
and such determination requires:
    (1) The allowance to the estate or trust of the deduction when such 
amounts have been erroneously omitted or excluded from the income of the 
beneficiaries, heirs, or legatees; or
    (2) The inclusion of such amounts in the income of the 
beneficiaries, heirs, or legatees when the deduction has been 
erroneously disallowed to or omitted by the estate or trust; or
    (3) The disallowance to an estate or trust of the deduction when 
such amounts have been erroneously included in the income of the 
beneficiaries, heirs, or legatees; or
    (4) The exclusion of such amounts from the income of the 
beneficiaries, heirs, or legatees when the deduction has been 
erroneously allowed to the estate or trust.
    (b) The application of paragraph (a)(1) of this section may be 
illustrated by the following example:

    Example: For the taxable year 1954, a trustee, directed by the trust 
instrument to accumulate the trust income, made no distribution to the 
beneficiary and returned the entire income as taxable to the trust. 
Accordingly the beneficiary did not include the trust income in his 
return for the year 1954. In 1957, a State court holds invalid the 
clause directing accumulation and determines that the income is required 
to be currently distributed. It also rules that certain extraordinary 
dividends which the trustee in good faith allocated to corpus in 1954 
were properly allocable to income. In 1958, the trustee, relying upon 
the court decision, files a claim for refund of the tax paid on behalf 
of the trust for the year 1954 and thereafter files a suit in the 
District Court. The claim is sustained by the court (except as to the 
tax on the extraordinary dividends) in 1959 after the expiration of the 
period of limitations upon deficiency assessments against the 
beneficiary for the year 1954. An adjustment is authorized with respect 
to the beneficiary's tax for the year 1954. The treatment of the 
distribution to the beneficiary of the extraordinary dividends shall be 
determined under subpart D of subchapter J.

    (c) The application of paragraph (a)(2) of this section may be 
illustrated by the following example:

    Example: Assume the same facts as in the example in paragraph (b) of 
this section, except that, instead of the trustee's filing a refund 
claim, the Commissioner, relying upon the decision of the State court, 
asserts a deficiency against the beneficiary for 1954. The deficiency is 
sustained by final decision of the Tax Court of the United States in 
1959, after the expiration of the period for filing claim for refund on 
behalf of the trust for

[[Page 781]]

1954. An adjustment is authorized with respect to the trust for the year 
1954.

    (d) The application of paragraph (a)(3) of this section may be 
illustrated by the following example:

    Example: A trustee claimed in the trust return for 1954 for amounts 
paid to the beneficiary a deduction to the extent of distributable net 
income. This amount was included by the beneficiary in gross income in 
his return for 1954. In computing distributable net income the trustee 
had included short and long-term capital gains. In 1958, the 
Commissioner asserts a deficiency against the trust on the ground that 
the capital gains were not includible in distributable net income, and 
that, therefore, the gains were taxable to the trust, not the 
beneficiary. The deficiency is sustained by a final decision of the Tax 
Court in 1960, after the expiration of the period for filing claims for 
refund by the beneficiary for 1954. An adjustment is authorized with 
respect to the beneficiary's tax for the year 1954, based on the 
exclusion from 1954 gross income of the capital gains previously 
considered distributed by the trust under section 662.

    (e) The application of paragraph (a)(4) of this section may be 
illustrated by the following example:

    Example: Assume the same facts as in the example in paragraph (d) of 
this section, except that, instead of the Commissioner's asserting a 
deficiency, the beneficiary filed a refund claim for 1954 on the same 
ground. The claim is sustained by the court in 1960 after the expiration 
of the period of limitations upon deficiency assessments against the 
trust for 1954. An adjustment is authorized with respect to the trust 
for the year 1954.

[T.D. 6500, 25 FR 12034, Nov. 26, 1960]



Sec.  1.1312-6  Correlative deductions and credits for certain 
related corporations.

    (a) Paragraph (6) of section 1312 applies if the determination 
allows or disallows a deduction (including a credit) to a corporation, 
and if a correlative deduction or credit has been erroneously allowed, 
omitted, or disallowed in respect of a related taxpayer described in 
section 1313(c)(7).
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. X Corporation is a wholly-owned subsidiary of Y 
Corporation. In 1955, X Corporation paid $5,000 to Y Corporation and 
claimed an interest deduction for this amount in its return for 1955. Y 
Corporation included this amount in its gross income for 1955. In 1958, 
the Commissioner asserted a deficiency against X Corporation for 1955, 
contending that the deduction for interest paid should be disallowed on 
the ground that the payment was in reality the payment of a dividend to 
Y Corporation. X Corporation contested the deficiency, and ultimately in 
June 1959, a final decision of the Tax Court sustained the Commissioner. 
Since the amount of the payment is a dividend, Y Corporation should have 
been allowed for 1955 the corporate dividends-received deduction under 
section 243 with respect to such payment. However, the Tax Court's 
decision sustaining the deficiency against X Corporation occurred after 
the expiration of the period for filing claim for refund by Y 
Corporation for 1955. An adjustment is authorized with respect to Y 
Corporation for 1955.
    Example 2. Assume the same facts as in example (1) except that, 
instead of the Commissioner asserting a deficiency against X Corporation 
for 1955, Y Corporation filed a claim for refund in 1958, alleging that 
the payment received in 1955 from X Corporation was in reality a 
dividend to which the corporate dividends-received deduction (section 
243) applies. The Commissioner denied the claim, and ultimately in June 
1959, the district court, in a final decision, sustained Y Corporation. 
Since the amount of the payment is a dividend, X Corporation should not 
have been allowed an interest deduction for the amount paid to Y 
Corporation. However, the district court's decision sustaining the claim 
for refund occurred after the expiration of the period of limitations 
for assessing a deficiency against X Corporation for the year 1955. An 
adjustment is authorized with respect to X Corporation's tax for 1955.

[T.D. 6617, 27 FR 10823, Nov. 7, 1962]



Sec.  1.1312-7  Basis of property after erroneous treatment 
of a prior transaction.

    (a) Paragraph (7) of section 1312 applies if the determination 
establishes the basis of property, and there occurred one of the 
following types of errors in respect of a prior transaction upon which 
such basis depends, or in respect of a prior transaction which was 
erroneously treated as affecting such basis:
    (1) An erroneous inclusion in, or omission from, gross income, or
    (2) An erroneous recognition or nonrecognition of gain or loss, or
    (3) An erroneous deduction of an item properly chargeable to capital 
account or an erroneous charge to capital account of an item properly 
deductible.

[[Page 782]]

    (b)(1) For this section to apply, the taxpayer with respect to whom 
the erroneous treatment occurred must be:
    (i) The taxpayer with respect to whom the determination is made; or
    (ii) A taxpayer who acquired title to the property in the 
erroneously treated transaction and from whom, mediately or immediately, 
the taxpayer with respect to whom the determination is made derived 
title in such a manner that he will have a basis ascertained by 
reference to the basis in the hands of the taxpayer who acquired title 
to the property in the erroneously treated transaction; or
    (iii) A taxpayer who had title to the property at the time of the 
erroneously treated transaction and from whom, mediately or immediately, 
the taxpayer with respect to whom the determination is made derived 
title, if the basis of the property in the hands of the taxpayer with 
respect to whom the determination is made is determined under section 
1015(a) (relating to the basis of property acquired by gift) or section 
1022 (relating to the basis of property acquired from certain decedents 
who died in 2010).
    (2) No adjustment is authorized with respect to the transferor of 
the property in a transaction upon which the basis of the property 
depends, when the determination is with respect to the original 
transferee or a subsequent transferee of the original transferee.
    (c) The application of this section may be illustrated by the 
following examples:

    Example 1. In 1949 taxpayer A transferred property which had cost 
him $5,000 to the X Corporation in exchange for an original issue of 
shares of its stock having a fair market value of $10,000. In his return 
for 1949 taxpayer A treated the exchange as one in which the gain or 
loss was not recognizable:
    (i) In 1955 the X Corporation maintains that the gain should have 
been recognized in the exchange in 1949 and therefore the property it 
received had a $10,000 basis for depreciation. Its position is adopted 
in a closing agreement. No adjustment is authorized with respect to the 
tax of the X Corporation for 1949, as none of the three types of errors 
specified in paragraph (a) of this section occurred with respect to the 
X Corporation in the treatment of the exchange in 1949. Moreover, no 
adjustment is authorized with respect to taxpayer A, as he is not within 
any of the three classes of taxpayers described in paragraph (b) of this 
section.
    (ii) In 1953 taxpayer A sells the stock which he received in 1949 
and maintains that, as gain should have been recognized in the exchange 
in 1949, the basis for computing the profit on the sale is $10,000. His 
position is confirmed in a closing agreement executed in 1955. An 
adjustment is authorized with respect to his tax for the year 1949 as 
the basis for computing the gain on the sale depends upon the 
transaction in 1949, and in respect of that transaction there was an 
erroneous nonrecognition of gain to taxpayer A, the taxpayer with 
respect to whom the determination is made.
    Example 2. In 1950 taxpayer A was the owner of 10 shares of the 
common stock of the Z Corporation which had a basis of $1,500. In that 
year he received as a dividend thereon 10 shares of the preferred stock 
of the same corporation having a fair market value of $1,000. On his 
books, entries were made reducing the basis of the common stock by 
allocating $500 of the basis to the preferred stock, and on his return 
for 1950 he did not include the dividend in gross income.
    (i) In 1951 taxpayer A made a gift of the preferred stock of the Z 
Corporation to taxpayer B, an unrelated individual. Taxpayer B sold the 
stock in 1953 and on his return for that year he reported the sale and 
claimed a basis of $1,000, contending that the dividend of preferred 
stock was taxable to A in 1950 at its fair market value of $1,000. The 
basis of $1,000 is confirmed by a closing agreement executed in 1955. An 
adjustment is authorized with respect to taxpayer A's tax for 1950, as 
the closing agreement determines basis of property, and in a prior 
transaction upon which such basis depends there was an erroneous 
omission from gross income of taxpayer A, a taxpayer who acquired title 
to the property in the erroneously treated transaction and from whom, 
immediately, the taxpayer with respect to whom the determination is made 
derived title.
    (ii) Assuming the same facts as in (i) except that the common stock 
instead of the preferred stock was the subject of the gift, and the 
basis claimed by taxpayer B and confirmed in the closing agreement was 
$1,500. An adjustment is authorized with respect to taxpayer A's tax for 
1950, as the closing agreement determines the basis of property, and in 
a prior transaction which was erroneously treated as affecting such 
basis there was an erroneous omission from gross income of taxpayer A, a 
taxpayer who had title to the property at the time of the erroneously 
treated transaction, and from whom, immediately, taxpayer B, with 
respect to whom the determination is made, derived title. The basis of 
the property in taxpayer

[[Page 783]]

B's hands with respect to whom the determination is made is determined 
under section 1015(a) (relating to the basis of property acquired by 
gift).
    Example 3. In 1950 taxpayer A sold property acquired at a cost of 
$5,000 to taxpayer B for $10,000. In his return for 1950 taxpayer A 
failed to include the profit on such sale. In 1953 taxpayer B sold the 
property for $12,000, and in his return for 1953 reported a gain of 
$2,000 upon the sale, which is confirmed by a closing agreement executed 
in 1955. No adjustment is authorized with respect to the tax of taxpayer 
A for 1950, as he does not come within any of the three classes of 
taxpayers described in paragraph (b) of this section.
    Example 4. In 1950 a taxpayer who owned 100 shares of stock in 
Corporation Y received $1,000 from the corporation which amount the 
taxpayer reported on his return for 1950 as a taxable dividend. In 1952 
Corporation Y was completely liquidated and the taxpayer received in 
that year liquidating distributions totalling $8,000. In his return for 
1952 the taxpayer reported the receipt of the $8,000 and computed his 
gain or loss upon the liquidation by using as a basis the amount which 
he paid for the stock. The Commissioner maintained that the distribution 
in 1950 was a distribution out of capital and that in computing the 
taxpayer's gain or loss upon the liquidation in 1952, the basis of the 
stock should be reduced by the $1,000. This position is adopted in a 
closing agreement executed in 1955 with respect to the year 1952. An 
adjustment is authorized with respect to the year 1950 as the basis for 
computing gain or loss in 1952 depends upon the transaction in 1950, and 
in respect of the 1950 transaction (upon which the basis of the property 
depends) there was an erroneous inclusion in gross income of the 
taxpayer with respect to whom the determination is made.
    Example 5. In 1946 a taxpayer received 100 shares of stock of the X 
Corporation having a fair market value of $5,000, in exchange for shares 
of stock in the Y Corporation which he had acquired at a cost of 
$12,000. In his return for 1946 the taxpayer treated the exchange as one 
in which gain or loss was not recognizable. The taxpayer sold 50 shares 
of the X Corporation stock in 1947 and in his return for that year 
treated such shares as having a $6,000 basis. In 1952, the taxpayer sold 
the remaining 50 shares of stock of the X Corporation for $7,500 and 
reported $1,500 gain in his return for 1952. After the expiration of the 
period of limitations on deficiency assessments and on refund claims for 
1946 and 1947, the Commissioner asserted a deficiency for 1952 on the 
ground that the loss realized on the exchange in 1946 was erroneously 
treated as nonrecognizable, and the basis for computing gain upon the 
sale in 1952 was $2,500, resulting in a gain of $5,000. The deficiency 
is sustained by the Tax Court in 1955. An adjustment is authorized with 
respect to the year 1946 as to the entire $7,000 loss realized on the 
exchange, as the Court's decision determines the basis of property, and 
in a prior transaction upon which such basis depends there was an 
erroneous nonrecognition of loss to the taxpayer with respect to whom 
the determination was made. No adjustment is authorized with respect to 
the year 1947 as the basis for computing gain upon the sale of the 50 
shares in 1952 does not depend upon the transaction in 1947 but upon the 
transaction in 1946.
    (d) Effective/applicability date. This section applies on and after 
January 19, 2017. For rules before January 19, 2017, see Sec.  1.1312-7 
as contained in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 6500, 25 FR 12035, Nov. 26, 1960, as amended by T.D. 6617, 27 FR 
10824, Nov. 7, 1962; T.D. 9811, 82 FR 6242, Jan. 19, 2017]



Sec.  1.1312-8  Law applicable in determination of error.

    The question whether there was an erroneous inclusion, exclusion, 
omission, allowance, disallowance, recognition, or nonrecognition is 
determined under the provisions of the internal revenue laws applicable 
with respect to the year as to which the inclusion, exclusion, omission, 
allowance, disallowance, recognition, or nonrecognition, as the case may 
be, was made. The fact that the inclusion, exclusion, omission, 
allowance, disallowance, recognition, or nonrecognition, as the case may 
be, was in pursuance of an interpretation, either judicial or 
administrative, accorded such provisions of the internal revenue laws at 
the time of such action is not necessarily determinative of this 
question. For example, if a later judicial decision authoritatively 
alters such interpretation so that such action was contrary to such 
provisions of the internal revenue laws as later interpreted, the 
inclusion, exclusion, omission, allowance, disallowance, recognition, or 
nonrecognition, as the case may be, is erroneous within the meaning of 
section 1312.

[T.D. 6500, 25 FR 12036, Nov. 26, 1960. Redesignated by T.D. 6617, 27 FR 
10824, Nov. 7, 1962]



Sec.  1.1313(a)-1  Decision by Tax Court or other court as a determination.

    (a) A determination may take the form of a decision by the Tax Court 
of

[[Page 784]]

the United States or a judgment, decree, or other order by any court of 
competent jurisdiction, which has become final.
    (b) The date upon which a decision by the Tax Court becomes final is 
prescribed in section 7481.
    (c) The date upon which a judgment of any other court becomes final 
must be determined upon the basis of the facts in the particular case. 
Ordinarily, a judgment of a United States district court becomes final 
upon the expiration of the time allowed for taking an appeal, if no such 
appeal is duly taken within such time; and a judgment of the United 
States Court of Claims becomes final upon the expiration of the time 
allowed for filing a petition for certiorari if no such petition is duly 
filed within such time.

[T.D. 6500, 25 FR 12036, Nov. 26, 1960]



Sec.  1.1313(a)-2  Closing agreement as a determination.

    A determination may take the form of a closing agreement authorized 
by section 7121. Such an agreement may relate to the total tax liability 
of the taxpayer for a particular taxable year or years or to one or more 
separate items affecting such liability. A closing agreement becomes 
final for the purpose of this section on the date of its approval by the 
Commissioner.

[T.D. 6500, 25 FR 12036, Nov. 26, 1960]



Sec.  1.1313(a)-3  Final disposition of claim for refund as a determination.

    (a) In general. A determination may take the form of a final 
disposition of a claim for refund. Such disposition may result in a 
determination with respect to two classes of items, i.e., items included 
by the taxpayer in a claim for refund and items applied by the 
Commissioner to offset the alleged overpayment. The time at which a 
disposition in respect of a particular item becomes final may depend not 
only upon what action is taken with respect to that item but also upon 
whether the claim for refund is allowed or disallowed.
    (b) Items with respect to which the taxpayer's claim is allowed. (1) 
The disposition with respect to an item as to which the taxpayer's 
contention in the claim for refund is sustained becomes final on the 
date of allowance of the refund or credit if:
    (i) The taxpayer's claim for refund is unqualifiedly allowed; or
    (ii) The taxpayer's contention with respect to an item is sustained 
and with respect to other items is denied, so that the net result is an 
allowance of refund or credit; or
    (iii) The taxpayer's contention with respect to an item is 
sustained, but the Commissioner applies other items to offset the amount 
of the alleged overpayment and the items so applied do not completely 
offset such amount but merely reduce it so that the net result is an 
allowance of refund or credit.
    (2) If the taxpayer's contention in the claim for refund with 
respect to an item is sustained but the Commissioner applies other items 
to offset the amount of the alleged overpayment so that the net result 
is a disallowance of the claim for refund, the date of mailing, by 
registered mail, of the notice of disallowance (see section 6532) is the 
date of the final disposition as to the item with respect to which the 
taxpayer's contention is sustained.
    (c) Items with respect to which the taxpayer's claim is disallowed. 
The disposition with respect to an item as to which the taxpayer's 
contention in the claim for refund is denied becomes final upon the 
expiration of the time allowed by section 6532 for instituting suit on 
the claim for refund, unless the suit is instituted prior to the 
expiration of such period, if:
    (1) The taxpayer's claim for refund is unqualifiedly disallowed; or
    (2) The taxpayer's contention with respect to an item is denied and 
with respect to other items is sustained so that the net result is an 
allowance of refund or credit; or
    (3) The taxpayer's contention with respect to an item is sustained 
in part and denied in part. For example, assume that the taxpayer 
claimed a deductible loss of $10,000 and a consequent overpayment of 
$2,500 and the Commissioner concedes that a deductible loss was 
sustained, but only in the amount of $5,000. The disposition of the 
claim for refund with respect to the allowance of the $5,000 and the 
disallowance of the remaining $5,000 becomes final upon the expiration 
of the time

[[Page 785]]

for instituting suit on the claim for refund unless suit is instituted 
prior to the expiration of such period.
    (d) Items applied by the Commissioner in reduction of the refund or 
credit. If the Commissioner applies an item in reduction of the 
overpayment alleged in the claim for refund, and the net result is an 
allowance of refund or credit, the disposition with respect to the item 
so applied by the Commissioner becomes final upon the expiration of the 
time allowed by section 6532 for instituting suit on the claim for 
refund, unless suit is instituted prior to the expiration of such 
period. If such application of the item results in the assertion of a 
deficiency, such action does not constitute a final disposition of a 
claim for refund within the meaning of Sec.  1.1313(a)-3, but subsequent 
action taken with respect to such deficiency may result in a 
determination under Sec. Sec.  1.1313(a)-1, 1.1313(a)-2, or 1.1313(a)-4.
    (e) Elimination of waiting period. The necessity of waiting for the 
expiration of the 2-year period of limitations provided in section 6532 
may be avoided in such cases as are described in paragraph (c) or (d) of 
this section by the use of a closing agreement (see Sec.  1.1313(a)-2) 
or agreement under Sec.  1.1313(a)-4 to effect a determination.

[T.D. 6500, 25 FR 12036, Nov. 26, 1960]



Sec.  1.1313(a)-4  Agreement pursuant to section 1313(a)(4) as a determination.

    (a) In general. (1) A determination may take the form of an 
agreement made pursuant to this section. This section is intended to 
provide an expeditious method for obtaining an adjustment under section 
1311 and for offsetting deficiencies and refunds whenever possible. The 
provisions of part II (section 1311 and following), subchapter Q, 
chapter 1 of the Code, must be strictly complied with in any such 
agreement.
    (2) An agreement made pursuant to this section will not, in itself, 
establish the tax liability for the open taxable year to which it 
relates, but it will state the amount of the tax, as then determined, 
for such open year. The tax may be the amount of tax shown on the return 
as filed by the taxpayer, but if any changes in the amount have been 
made, or if any are being made by documents executed concurrently with 
the execution of said agreement, such changes must be taken into 
account. For example, an agreement pursuant to this section may be 
executed concurrently with the execution of a waiver of restrictions on 
assessment and collection of a deficiency or acceptance of an 
overassessment with respect to the open taxable year, or concurrently 
with the execution and filing of a stipulation in a proceeding before 
the Tax Court of the United States, where an item which is to be the 
subject of an adjustment under section 1311 is disposed of by the 
stipulation and is not left for determination by the court.
    (b) Contents of agreement. An agreement made pursuant to this 
section shall be so designated in the heading of the agreement, and it 
shall contain the following:
    (1) A statement of the amount of the tax determined for the open 
taxable year to which the agreement relates, and if said liability is 
established or altered by a document executed concurrently with the 
execution of the agreement, a reference to said document.
    (2) A concise statement of the material facts with respect to the 
item that was the subject of the error in the closed taxable year or 
years, and a statement of the manner in which such item was treated in 
computing the tax liability set forth pursuant to subparagraph (1) of 
this paragraph.
    (3) A statement as to the amount of the adjustment ascertained 
pursuant to Sec.  1.1314(a)-1 for the taxable year with respect to which 
the error was made and, where applicable, a statement as to the amount 
of the adjustment or adjustments ascertained pursuant to Sec.  
1.1314(a)-2 with respect to any other taxable year or years; and
    (4) A waiver of restrictions on assessment and collection of any 
deficiencies set forth pursuant to subparagraph 3 of this paragraph.
    (c) Execution and effect of agreement. An agreement made pursuant to 
this section shall be signed by the taxpayer with respect to whom the 
determination is made, or on the taxpayer's behalf by an agent or 
attorney acting pursuant to a power of attorney on file with the 
Internal Revenue Service. If an adjustment is to be made in a case

[[Page 786]]

of a related taxpayer, the agreement shall be signed also by the related 
taxpayer, or on the related taxpayer's behalf by an agent or attorney 
acting pursuant to a power of attorney on file with the Internal Revenue 
Service. It may be signed on behalf of the Commissioner by the district 
director, or such other person as is authorized by the Commissioner. 
When duly executed, such agreement will constitute the authority for an 
allowance of any refund or credit agreed to therein, and for the 
immediate assessment of any deficiency agreed to therein for the taxable 
year with respect to which the error was made, or any closed taxable 
year or years affected, or treated as affected, by a net operating loss 
deduction or capital loss carryover determined with reference to the 
taxable year with respect to which the error was made.
    (d) Finality of determination. A determination made by an agreement 
pursuant to this section becomes final when the tax liability for the 
open taxable year to which the determination relates becomes final. 
During the period, if any, that a deficiency may be assessed or a refund 
or credit allowed with respect to such year, either the taxpayer or the 
Commissioner may properly pursue any of the procedures provided by law 
to secure a further modification of the tax liability for such year. For 
example, if the taxpayer subsequently files a claim for refund, or if 
the Commissioner subsequently issues a notice of deficiency with respect 
to such year, either may adopt a position with respect to the item that 
was the subject of the adjustment that is at variance with the manner in 
which said item was treated in the agreement. Any assessment, refund, or 
credit that is subsequently made with respect to the tax liability for 
such open taxable year, to the extent that it is based upon a revision 
in the treatment of the item that was the subject of the adjustment, 
shall constitute an alteration or revocation of the determination for 
the purpose of a redetermination of the adjustment pursuant to paragraph 
(d) of Sec.  1.1314(b)-1.

[T.D. 6500, 25 FR 12037, Nov. 26, 1960]



Sec.  1.1313(c)-1  Related taxpayer.

    An adjustment in the case of the taxpayer with respect to whom the 
error was made may be authorized under section 1311 although the 
determination is made with respect to a different taxpayer, provided 
that such taxpayers stand in one of the relationships specified in 
section 1313(c). The concept of related taxpayer has application to all 
of the circumstances of adjustment specified in Sec.  1.1312-1 through 
Sec.  1.1312-5 if the related taxpayer is one described in section 
1313(c); it has application to the circumstances of adjustment specified 
in Sec.  1.1312-6 only if the related taxpayer is one described in 
section 1313(c)(7); it does not apply in the circumstances specified in 
Sec.  1.1312-7. If such relationship exists, it is not essential that 
the error involve a transaction made possible only by reason of the 
existence of the relationship. For example, if the error with respect to 
which an adjustment is sought under section 1311 grew out of an 
assignment of rents between taxpayer A and taxpayer B, who are partners, 
and the determination is with respect to taxpayer A, an adjustment with 
respect to taxpayer B may be permissible despite the fact that the 
assignment had nothing to do with the business of the partnership. The 
relationship need not exist throughout the entire taxable year with 
respect to which the error was made, but only at some time during that 
taxable year. For example, if a taxpayer on February 15 assigns to his 
fiancee the net rents of a building which the taxpayer owns, and the two 
are married before the end of the taxable year, an adjustment may be 
permissible if the determination relates to such rents despite the fact 
that they were not husband and wife at the time of the assignment. See 
Sec.  1.1311(b)-3 for the requirement in certain cases that the 
relationship exist at the time an inconsistent position is first 
maintained.

[T.D. 6617, 27 FR 10824, Nov. 7, 1962]



Sec.  1.1314(a)-1  Ascertainment of amount of adjustment in year of error.

    (a) In computing the amount of the adjustment under sections 1311 to 
1315, inclusive, there must first be

[[Page 787]]

ascertained the amount of the tax previously determined for the taxpayer 
as to whom the error was made for the taxable year with respect to which 
the error was made. The tax previously determined for any taxable year 
may be the amount of tax shown on the taxpayer's return, but if any 
changes in that amount have been made, they must be taken into account. 
In such cases, the tax previously determined will be the sum of the 
amount shown as the tax by the taxpayer upon his return and the amounts 
previously assessed (or collected without assessment) as deficiencies, 
reduced by the amount of any rebates made. The amount shown as the tax 
by the taxpayer upon his return and the amount of any rebates or 
deficiencies shall be determined in accordance with the provisions of 
section 6211 and the regulations thereunder.
    (b)(1) The tax previously determined may consist of tax for any 
taxable year beginning after December 31, 1931, imposed by subtitle A of 
the Internal Revenue Code of 1954, by chapter 1 and subchapters A, B, D, 
and E of chapter 2 of the Internal Revenue Code of 1939, or by the 
corresponding provisions of prior internal revenue laws, or by any one 
or more of such provisions.
    (2) After the tax previously determined has been ascertained, a 
recomputation must then be made under the laws applicable to said 
taxable year to ascertain the increase or decrease in tax, if any, 
resulting from the correction of the error. The difference between the 
tax previously determined and the tax as recomputed after correction of 
the error will be the amount of the adjustment.
    (c) No change shall be made in the treatment given any item upon 
which the tax previously determined was based other than in the 
correction of the item or items with respect to which the error was 
made. However, due regard shall be given to the effect that such 
correction may have on the computation of gross income, taxable income, 
and other matters under chapter 1 of the Code. If the treatment of any 
item upon which the tax previously determined was based, or if the 
application of any provisions of the internal revenue laws with respect 
to such tax, depends upon the amount of income (e.g. charitable 
contributions, foreign tax credit, dividends received credit, medical 
expenses, and percentage depletion), readjustment in these particulars 
will be necessary as part of the recomputation in conformity with the 
change in the amount of the income which results from the correct 
treatment of the item or items in respect of which the error was made.
    (d) Any interest or additions to the tax collected as a result of 
the error shall be taken into account in determining the amount of the 
adjustment.
    (e) The application of this section may be illustrated by the 
following example:

    Example: (1) For the taxable year 1949 a taxpayer with no 
dependents, who kept his books on the cash receipts and disbursements 
method, filed a joint return with his wife disclosing adjusted gross 
income of $42,000 deductions amounting to $12,000, and a net income of 
$30,000. Included among other items in the gross income were salary in 
the amount of $15,000 and rents accrued but not yet received in the 
amount of $5,000. During the taxable year he donated $10,000 to the 
American Red Cross and in his return claimed a deduction of $6,300 on 
account thereof, representing the maximum deduction allowable under the 
15-percent limitation imposed by section 23(o) of the Internal Revenue 
Code of 1939 as applicable to the year 1949. In computing his net income 
he omitted interest income amounting to $6,000 and neglected to take a 
deduction for interest paid in the amount of $4,500. The return 
disclosed a tax liability of $7,788, which was assessed and paid. After 
the expiration of the period of limitations upon the assessment of a 
deficiency or the allowance of a refund for 1949, the Commissioner 
included the item of rental income amounting to $5,000 in the taxpayer's 
gross income for the year 1950 and asserted a deficiency for that year. 
As a result of a final decision of the Tax Court of the United States in 
1955 sustaining the deficiency for 1950, an adjustment is authorized for 
the year 1949.
    (2) The amount of the adjustment is computed as follows:

Tax previously determined for 1949..........................      $7,788
                                                             ===========
Net income for 1949 upon which tax previously determined was      30,000
 based......................................................
Less: Rents erroneously included............................       5,000
                                                             -----------
    Balance.................................................      25,000
Adjustment for contributions (add 15 percent of $5,000).....         750
                                                             -----------
    Net income as adjusted..................................      25,750
                                                             ===========
Tax as recomputed...........................................       6,152

[[Page 788]]

 
Tax previously determined...................................       7,788
                                                             -----------
    Difference..............................................       1,636
Amount of adjustment to be refunded or credited.............       1,636
 

    (3) In accordance with the provisions of paragraph (c) of this 
section, the recomputation to determine the amount of the adjustment 
does not take into consideration the item of $6,000 representing 
interest received, which was omitted from gross income, or the item of 
$4,500 representing interest paid, for which no deduction was allowed.

[T.D. 6500, 25 FR 12038, Nov. 26, 1960]



Sec.  1.1314(a)-2  Adjustment to other barred taxable years.

    (a) An adjustment is authorized under section 1311 with respect to a 
taxable year or years other than the year of the error, but only if all 
of the following requirements are met:
    (1) The tax liability for such other year or years must be affected, 
or must have been treated as affected, by a net operating loss deduction 
(as defined in section 172) or by a capital loss carryback or carryover 
(as defined in section 1212).
    (2) The net operating loss deduction or capital loss carryback or 
carryover must be determined with reference to the taxable year with 
respect to which the error was made.
    (3) On the date of the determination the adjustment with respect to 
such other year or years must be prevented by some law or rule of law, 
other than sections 1311 through 1315 and section 7122 and the 
corresponding provisions of prior revenue laws.
    (b) The amount of the adjustment for such other year or years shall 
be computed in a manner similar to that provided in Sec.  1.1314(a)-1. 
The tax previously determined for such other year or years shall be 
ascertained. A recomputation must then be made to ascertain the increase 
or decrease in tax, if any, resulting solely from the correction of the 
net operating loss deduction or capital loss carryback or carryover. The 
difference between the tax previously determined and the tax as 
recomputed is the amount of the adjustment. In the recomputation, no 
consideration shall be given to items other than the following:
    (1) The items upon which the tax previously determined for such 
other year or years was based, and
    (2) The net operating loss deduction or capital loss carryback or 
carryover as corrected.

In determining the correct net operating loss deduction or capital loss 
carryback or carryover, no changes shall be made in taxable income (net 
income in the case of taxable years subject to the provisions of the 
Internal Revenue Code of 1939 or prior revenue laws), net operating loss 
or capital loss, for any barred taxable year, except as provided in 
section 1314. Section 172 and the corresponding provisions of prior 
revenue laws, and the regulations promulgated thereunder, prescribe the 
methods of computing the net operating loss deduction. Section 1212 and 
the corresponding provisions of prior revenue laws, and the regulations 
promulgated thereunder, prescribe the methods for computing the capital 
loss carryback and carryover.
    (c) A net operating loss deduction or a capital loss carryback or 
carryover determined with reference to the year of the error may affect, 
or may have been treated as affecting, a taxable year with respect to 
which an adjustment is not prevented by the operation of any law or rule 
of law. In such case, the appropriate adjustment shall be made with 
respect to such open taxable year. However, the redetermination of the 
tax for such open taxable year is not made pursuant to part II (section 
1311 and following), subchapter Q, chapter 1 of the Code, and the 
adjustment for such open year and the method of computation are not 
limited by the provisions of said sections.
    (d) The application of this section may be illustrated by the 
following example:

    Example: The taxpayer is a corporation which makes its income tax 
returns on a calendar year basis. Its net income in 1949, computed 
without any net operating loss deduction was $10,000, but because of a 
net operating loss deduction in excess of that amount resulting from a 
carryback of a net operating loss claimed for 1950, it paid no income 
tax for 1949. On its return for 1950 it showed an excess of deductions 
over gross income of $14,000, and it paid no income tax for 1950. For 
the year 1951 its net income, computed without any net operating loss 
deduction, was $15,000, and a net operating loss deduction of $13,000 
was allowed ($4,000 of

[[Page 789]]

which was attributable to the carryover from 1950 and $9,000 of which 
was attributable to the carryback of a net operating loss of $9,000 
sustained in 1952). In 1957 the assessment of deficiencies or the 
allowance of refunds for all of said years are barred by the statute of 
limitations.
    (i) A Tax Court decision entered in 1957 with respect to the taxable 
year 1953 constituted a determination under which an adjustment is 
authorized to the taxable year 1950, the year with respect to which the 
error was made. This adjustment increases income for said year by 
$15,000, so that instead of a net operating loss of $14,000, its 
corrected net income is $1,000 for 1950, and the tax computed on that 
income will be assessed as a deficiency for 1950. An adjustment is 
authorized under this section with respect to each of the years 1949 and 
1951, as the tax liability for each year was treated as affected by a 
net operating loss deduction which was determined by a computation in 
which reference was made to the year 1950. In the recomputation of the 
tax for 1949, the net operating loss carryback from 1950 will be 
eliminated, and in the recomputation of the tax for 1951 the net 
operating loss carryover from 1950 will be eliminated; for each of the 
years 1949 and 1951 there will be an adjustment which will be treated as 
a deficiency for said year.
    (ii) Assuming the same facts, except that the correction with 
respect to the year 1950 increases the net operating loss for said year 
from $14,000 to $20,000. As a result of this correction, there will be 
no change in the tax due for 1949 and 1950. However, the net operating 
loss deduction for 1951 is recomputed to be $19,000, the aggregate of 
the $10,000 carryover from 1950 and the $9,000 carryback from 1952 (the 
carryover from 1950 is the excess of the $20,000 net operating loss for 
1950 over the $10,000 net income for 1949, such 1949 income being 
determined without any net operating loss deduction). As a result of the 
correction of the net operating loss deduction for 1951, the tax 
recomputation will show no tax due for said year, and the adjustment for 
1951 will result in a refund or credit of the tax previously paid. 
Moreover, computations resulting from this adjustment will disclose a 
net operating loss carryover from 1952 to 1953 of $4,000, that is, the 
excess of the $9,000 net operating loss for 1952 over the $5,000 net 
income for 1951 (such net income for 1951 being computed as the $15,000 
reduced by the carryover of $10,000 from 1950, the carryback from 1952 
not being taken into account). A further adjustment is authorized under 
section 1311 with respect to any subsequent barred year in which the tax 
liability is affected by a carryover of the net operating loss from 
1952, inasmuch as such carryover from 1952 has been determined by a 
computation in which reference was made to 1950, the taxable year of the 
error.

[T.D. 6500, 25 FR 12038, Nov. 26, 1960, as amended by T.D. 7301, 39 FR 
972, Jan. 4, 1974]



Sec.  1.1314(b)-1  Method of adjustment.

    (a) If the amount of the adjustment ascertained pursuant to Sec.  
1.1314(a)-1 or Sec.  1.1314(a)-2 represents an increase in tax, it is to 
be treated as if it were a deficiency determined by the Commissioner 
with respect to the taxpayer as to whom the error was made and for the 
taxable year or years with respect to which such adjustment was made. 
The amount of such adjustment is thus to be assessed and collected under 
the law and regulations applicable to the assessment and collection of 
deficiencies, subject, however, to the limitations imposed by Sec.  
1.1314(c)-1. Notice of deficiency, unless waived, must be issued with 
respect to such amount or amounts, and the taxpayer may contest the 
deficiency before the Tax Court of the United States or, if he chooses, 
may pay the deficiency and later file claim for refund. If the amount of 
the adjustment ascertained pursuant to Sec.  1.1314(a)-1 or Sec.  
1.1314(a)-2 represents a decrease in tax, it is to be treated as if it 
were an overpayment claimed by the taxpayer with respect to whom the 
error was made for the taxable year or years with respect to which such 
adjustment was made. Such amount may be recovered under the law and 
regulations applicable to overpayments of tax, subject, however, to the 
limitations imposed by Sec.  1.1314(c)-1. The taxpayer must file a claim 
for refund thereof, unless the overpayment is refunded without such 
claim, and if the claim is denied or not acted upon by the Commissioner 
within the prescribed time, the taxpayer may then file suit for refund.
    (b) For the purpose of the adjustments authorized by section 1311, 
the period of limitations upon the making of an assessment or upon 
refund or credit, as the case may be, for the taxable year of an 
adjustment shall be considered as if, on the date of the determination, 
one year remained before the expiration of such period. The Commissioner 
thus has one year from the date of the determination within which

[[Page 790]]

to mail a notice of deficiency in respect of the amount of the 
adjustment where such adjustment is treated as if it were a deficiency. 
The issuance of such notice of deficiency, in accordance with the law 
and regulations applicable to the assessment of deficiencies will 
suspend the running of the 1-year period of limitations provided in 
section 1314(b). In accordance with the applicable law and regulations 
governing the collection of deficiencies, the period of limitation for 
collection of the amount of the adjustment will commence to run from the 
date of assessment of such amount. (See section 6502 and corresponding 
provisions of prior revenue laws.) Similarly, the taxpayer has a period 
of one year from the date of the determination within which to file a 
claim for refund in respect of the amount of the adjustment where such 
adjustment is treated as if it were an overpayment. Where the amount of 
the adjustment is treated as if it were a deficiency and the taxpayer 
chooses to pay such deficiency and contest it by way of a claim for 
refund, the period of limitation upon filing a claim for refund will 
commence to run from the date of such payment. See section 6511 and 
corresponding provisions of prior revenue laws.
    (c) The amount of an adjustment treated as if it were a deficiency 
or an overpayment, as the case may be, will bear interest and be subject 
to additions to the tax to the extent provided by the internal revenue 
laws applicable to deficiencies and overpayments for the taxable year 
with respect to which the adjustment is made. In the case of an 
adjustment resulting from an increase or decrease in a net operating 
loss or net capital loss which is carried back to the year of 
adjustment, interest shall not be collected or paid for any period prior 
to the close of the taxable year in which the net operating loss or net 
capital loss arises.
    (d) If, as a result of a determination provided for in Sec.  
1.1313(a)-4, an adjustment has been made by the assessment and 
collection of a deficiency or the refund or credit of an overpayment, 
and subsequently such determination is altered or revoked, the amount of 
the adjustment ascertained under Sec.  1.1314(a)-1 and Sec.  1.1314(a)-2 
shall be redetermined on the basis of such alteration or revocation, and 
any overpayment or deficiency resulting from such redetermination shall 
be refunded or credited, or assessed and collected, as the case may be, 
as an adjustment under section 1311. For the circumstances under which 
such an agreement can be altered or revoked, see paragraph (d) of Sec.  
1.1313(a)-4.

[T.D. 6500, 25 FR 12039, Nov. 26, 1960, as amended by T.D. 7301, 39 FR 
972, Jan. 4, 1974]



Sec.  1.1314(c)-1  Adjustment unaffected by other items.

    (a) The amount of any adjustment ascertained under Sec.  1.1314(a)-1 
or Sec.  1.1314(a)-2 shall not be diminished by any credit or set-off 
based upon any item other than the one that was the subject of the 
adjustment.
    (b) The application of this section may be illustrated by the 
following examples:

    Example 1. In the example set forth in paragraph (e) of Sec.  
1.1314(a)-1, if, after the amount of the adjustment had been 
ascertained, the taxpayer, filed a refund claim for the amount thereof, 
the Commissioner could not diminish the amount of that claim by 
offsetting against it the amount of tax which should have been paid with 
respect to the $6,000 interest item omitted from gross income for the 
year 1949; nor could the court, if suit were brought on such claim for 
refund, offset against the amount of the adjustment the amount of tax 
which should have been paid with respect to such interest. Similarly, 
the amount of the refund could not be increased by any amount 
attributable to the taxpayer's failure to deduct the $4,500 interest 
paid in the year 1949.
    Example 2. Assume that a taxpayer included in his gross income for 
the year 1953 an item which should have been included in his gross 
income for the year 1952. After the expiration of the period of 
limitations upon the assessment of a deficiency or the allowance of a 
refund for 1952, the taxpayer filed a claim for refund for the year 1953 
on the ground that such item was not properly includible in gross income 
for that year. The claim for refund was allowed by the Commissioner and 
as a result of such determination an adjustment was authorized under 
section 1311 with respect to the tax for 1952. If, in such case, the 
Commissioner issued a notice of deficiency for the amount of the 
adjustment and the taxpayer contested the deficiency before the Tax 
Court of the United States, the taxpayer could not in such proceeding 
claim an offset based upon his failure to take an allowable deduction 
for the

[[Page 791]]

year 1952; nor could the Tax Court in its decision offset against the 
amount of the adjustment any overpayment for the year 1952 resulting 
from the failure to take such deduction.

    (c) If the Commissioner has refunded the amount of an adjustment 
under section 1311, the amount so refunded may not subsequently be 
recovered by the Commissioner in any suit for erroneous refund based 
upon any item other than the one that was the subject of the adjustment,

    Example: In the example set forth in paragraph (e) of Sec.  
1.1314(a)-1, if the Commissioner had refunded the amount of the 
adjustment, no part of the amount so refunded could subsequently be 
recovered by the Commissioner by a suit for erroneous refund based on 
the ground that there was no overpayment for 1949, as the taxpayer had 
failed to include in gross income the $6,000 item of interest received 
in that year.

    (d) If the Commissioner has assessed and collected the amount of an 
adjustment under section 1311, no part thereof may be recovered by the 
taxpayer in any suit for refund based upon any item other than the one 
that was the subject of the adjustment.

    Example: In example (2) of paragraph (b) of this section, if the 
taxpayer had paid the amount of the adjustment, he could not 
subsequently recover any part of such payment in a suit for refund based 
upon the failure to take an allowable deduction for the year 1952.

    (e) If the amount of the adjustment is considered an overpayment, it 
may be credited, under applicable law and regulations, together with any 
interest allowed thereon, against any liability in respect of an 
internal revenue tax on the part of the person who made such 
overpayment. Likewise, if the amount of the adjustment is considered as 
a deficiency, any overpayment by the taxpayer of any internal revenue 
tax may be credited against the amount of such adjustment in accordance 
with the applicable law and regulations thereunder. (See section 6402 
and the corresponding provisions of prior revenue laws.) Accordingly, it 
may be possible in one transaction between the Commissioner and the 
taxpayer to settle the taxpayer's tax liability for the year with 
respect to which the determination is made and to make the adjustment 
under section 1311 for the year with respect to which the error was made 
or for a year which is affected, or treated as affected, by a net 
operating loss deduction or a capital loss carryover from the year of 
the error.

[T.D. 6500, 25 FR 12040, Nov. 26, 1960]

       Involuntary Liquidation and Replacement of Lifo Inventories



Sec.  1.1321-1  Involuntary liquidation of lifo inventories.

    (a) Section 22(d)(6)(B) of the Internal Revenue Code of 1939 
provides as follows:

    Sec. 22. Gross income. * * *
    (d) * * *
    (6) Involuntary liquidation and replacement of inventory. * * *
    (B) Definition of involuntary liquidation. The term involuntary 
liquidation, as used in this paragraph, means the sale or other 
disposition of goods inventoried under the method described in this 
subsection, either voluntary or involuntary, coupled with a failure on 
the part of the taxpayer to purchase, manufacture, or otherwise produce 
and have on hand at the close of the taxable year in which such sale or 
other disposition occurred such goods as would, if on hand at the close 
of such taxable year, be subject to the application of the provisions of 
this subsection, if such failure on the part of the taxpayer is due, 
directly and exclusively, (i) to enemy capture or control of sources of 
limited foreign supply; (ii) to shipping or other transportation 
shortages; (iii) to material shortages resulting from priorities or 
allocations; (iv) to labor shortages; or (v) to other prevailing war 
conditions beyond the control of the taxpayer.

    (b)(1) If, during any taxable year ending after June 30, 1950, and 
before January 1, 1955, the disruption of normal trade relations between 
countries, or one or more of the conditions attributable to a state of 
national preparedness and beyond the control of the taxpayer, as 
prescribed by section 22(d)(6)(B) of the Internal Revenue Code of 1939, 
as modified by section 1321(b) of the Internal Revenue Code of 1954, 
should render it impossible during such period for a taxpayer using the 
last-in first-out inventory method to have on hand at the close of the 
taxable year a stock of merchandise in kind and description like that 
included in the opening inventory for the year, or in a quantity equal 
to that of the

[[Page 792]]

opening inventory, the resulting inventory decrease for the year will be 
regarded, at the election of the taxpayer, as reflecting an involuntary 
liquidation subject to replacement. If the taxpayer notifies the 
Commissioner within the period prescribed below that he intends to 
effect a replacement of the liquidated stock, in whole or in part, and 
that he desires to have applied in his case the involuntary liquidation 
and replacement provisions of section 1321, and if he establishes to the 
satisfaction of the Commissioner the involuntary character of the 
liquidation to which his stock has been subjected, effect shall be 
given, when replacement has been made, in whole or in part, but only to 
the extent made in taxable years ending before January 1, 1956, to an 
adjustment of taxable income for the year of liquidation in the amount 
of the difference between the replacement costs incurred and the 
original inventory cost of the liquidated base stock inventory that is 
replaced. The notification is to be given within 6 months after the 
filing by the taxpayer of his income tax return for the year of the 
liquidation. However, if the liquidation occurs in a taxable year ending 
after December 31, 1953, the notification may be given at any time 
within 3 months after the promulgation of regulations under section 
1321, or prior to the expiration of the 6-month period following the 
filing of the return, whichever expiration date later occurs.
    (2) If the replacement costs exceed such inventory costs, the 
taxable income of the taxpayer otherwise computed for the year of 
liquidation shall be reduced by an amount equal to such excess. If the 
replacement costs are less than the inventory costs, taxable income 
otherwise computed for the year of liquidation shall be increased to the 
extent of such difference. Any deficiency in the income or excess 
profits tax of the taxpayer, or any overpayment of such taxes, 
attributable to such adjustment shall be assessed and collected or 
credited or refunded to the taxpayer without interest.
    (c)(1) A failure on the part of the taxpayer to have on hand in his 
closing inventory for the taxable year merchandise of the kind, 
description, and quantity of that reflected in his opening inventory 
will be considered as an involuntary liquidation only if it is 
established to the satisfaction of the Commissioner that such failure is 
due wholly to his inability to purchase, manufacture, or otherwise 
produce and procure delivery of such merchandise during the taxable year 
of liquidation by reason of the disruption of normal trade relations 
between countries or by reason of certain war conditions, described in 
section 22(d)(6)(B) of the Internal Revenue Code of 1939, as modified by 
section 1321(b). Such war conditions are (i) shortages in the source of 
foreign supply by reason of capture or control by an enemy; (ii) 
shipping or other transportation shortages; (iii) material shortages 
resulting from priorities or allocations; (iv) labor shortages; and (v) 
similar war conditions beyond the control of the taxpayer. For the 
purpose of the preceding sentence, the words enemy and war shall be 
interpreted to apply to circumstances, occurrences, and conditions 
lacking a state of war, which are similar, by reason of a state of 
national preparedness, to those which would exist under a state of war.
    (2) The various directives, orders, regulations, and allotments 
issued by the Federal Government in connection with national 
preparedness are among such circumstances and conditions which might be 
recognized as effecting an involuntary liquidation under this section. 
Likewise, a voluntary compliance with a request of an authorized 
representative of the Federal Government made upon an industry or an 
important segment thereof, or a voluntary allocation of materials by an 
industry or important segment thereof sanctioned by the Federal 
Government, if made in connection with the national preparedness 
program, might be considered as such a circumstance or condition. 
Similarly, so much of an inventory decrease as is directly and 
exclusively attributable to the Federal Government's stockpiling program 
for periods during which an item is not subject to allotment shall also 
be considered as subject to the provisions of section 1321. Thus, so 
much of an inventory decrease as is due wholly to the effect of 
directives, orders, regulations, or allotments issued pursuant to

[[Page 793]]

the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et 
seq.), or to any other circumstance or condition which is solely 
dependent upon other action taken by the Federal Government in 
furtherance of the national preparedness program, ordinarily shall be 
considered as an involuntary liquidation under section 1321 and this 
section; however, to the extent that such a decrease is due to the 
disposition of goods acquired in violation of such directives, orders, 
regulations, or allotments, such decrease shall not be considered as 
such an involuntary liquidation. An inventory decrease due directly and 
exclusively to a disruption of normal trade relations between countries 
shall be considered as an involuntary liquidation subject to the rules 
and requirements prescribed in this section, including the requirement 
that the taxpayer establish to the satisfaction of the Commissioner the 
cause of the involuntary liquidation. A disruption of normal trade 
relations between countries may be reflected by unusual export 
limitations imposed by a foreign government, by unusual exchange 
restrictions, or by other unusual circumstances or conditions beyond the 
control of the taxpayer.
    (3) A voluntary shift by the taxpayer, in the exercise of business 
judgment, to merchandise of a different character, description, or use, 
or to merchandise processed out of a substantially different kind of raw 
materials while raw materials of the type originally used are still 
available will not be considered as an involuntary liquidation 
notwithstanding the fact that such a shift in merchandise stocked was 
prompted by a shifting market demand attributable to the above 
conditions. The term involuntary liquidation presupposes a physical 
inability to maintain a normal inventory as distinguished from a 
financial or business disinclination on the part of the taxpayer to do 
so.
    (d) If the taxpayer would have the involuntary liquidation and 
replacement provisions applicable with respect to any inventory 
decrease, he must so elect within the time prescribed by this section. 
In making such election, the taxpayer shall attach to his return and 
make a part thereof, or he shall furnish separately to the Commissioner, 
a statement setting forth the following matters:
    (1) The desire of the taxpayer to invoke the involuntary liquidation 
and replacement provisions;
    (2) A detailed list or other identifying description of the items of 
merchandise claimed to have been subjected to involuntary liquidation 
and the extent to which replacement is intended;
    (3) The circumstances relied upon as rendering the taxpayer unable 
to maintain throughout the taxable year a normal inventory of the items 
involved, including evidence of the applicable inventory control figures 
for the beginning and the close of the taxable year submitted to the 
appropriate Federal agency in control of defense production (or if none, 
a statement to that effect), allotments applied for, allotments 
received, and reason for failure to place allotments received;
    (4) Detailed proof of such circumstances to the extent that they may 
not be the subject-matter of common knowledge;
    (5) A full description of what efforts were made on the part of the 
taxpayer to effect replacement during the taxable year and the result of 
such efforts; and
    (6) In the case of an election made pursuant to an extension of time 
granted by the Commissioner, the circumstances relied upon as justifying 
the election at such time, together with a disclosure of the extent, if 
any, to which replacements have already been made.
    (e) The election of the taxpayer to treat an involuntary decrease of 
inventory as subject to the replacement adjustments is to be exercised 
separately for each taxable year reflecting such a decrease and the 
election, once exercised with respect to a given year, shall be 
irrevocable with respect to the particular decrease involved and its 
replacement, and shall be binding for the year of liquidation, the year 
of replacement, and all prior, intervening, and subsequent years to the 
extent that such prior, intervening, and subsequent years are affected 
by the adjustments authorized. The ultimate replacement and the 
resulting adjustment for the

[[Page 794]]

year of liquidation may have consequences, among others, in the earnings 
and profits of intervening years and the inventory accounts of 
subsequent years. They may have consequences in the prior years by 
reason of adjustments in net operating loss or unused excess profits 
credit carrybacks, and in intervening and subsequent taxable years by 
reason of adjustments in carryovers. Adjustments are to be made for the 
several years affected consistent with the adjustments made for the year 
of liquidation. Detailed records shall be maintained such as will enable 
the Commissioner, in his examination of the taxpayer's return for the 
year of replacement, readily to verify the extent of the inventory 
decrease claimed to be involuntary in character and the facts upon which 
such claim is based, all subsequent inventory increases and decreases, 
and all other facts material to the replacement adjustment authorized. 
For taxable years subject to the Internal Revenue Code of 1939, an 
election under 26 CFR (1939) 39.22(d)-7(e) (Regulations 118) or 26 CFR 
(1939) 29.22(d)-7 (Regulations 111) to have the involuntary liquidation 
and replacement provisions of section 22(d)(6) of the Internal Revenue 
Code of 1939 apply with respect to any inventory decrease for taxable 
years to which such section applies, shall be given the same effect as 
if such election had been made under this section. (See section 
7807(b)(2).)
    (f) Notwithstanding the ultimate purchase price or the cost of 
production ultimately incurred by the taxpayer in effecting replacement 
of a stock involuntarily liquidated, the merchandise reflecting the 
replacement shall be taken into purchases and included in the closing 
inventory for the year of replacement, and shall be included in the 
inventories of subsequent taxable years, at the inventory cost figure of 
the merchandise replaced.
    (g) The goods reflected in any inventory increase in a year 
subsequent to a year of involuntary liquidation, to the extent that they 
constitute items of the kind and description liquidated in prior years, 
whether or not in a year of involuntary liquidation, shall be deemed, in 
the order of their acquisition, as having been acquired by the taxpayer 
in replacement of like goods most recently liquidated and not previously 
replaced. In a case involving involuntary liquidations of goods of the 
same class subject to the provisions of both section 22(d)(6)(A) of the 
Internal Revenue Code of 1939 and section 1321 of the Internal Revenue 
Code of 1954, the involuntary liquidations of such goods subject to the 
provisions of section 1321 shall, for the purpose of replacements made 
in taxable years ending before January 1, 1953, be considered as having 
occurred prior to the involuntary liquidations of such goods subject to 
the provisions of section 22(d)(6)(A) of the Internal Revenue Code of 
1939. To the extent that the items of increase are allocated to items 
liquidated voluntarily, no adjustment will be required or permitted. 
Such replacement merchandise will be carried in the inventory at its 
actual cost of acquisition. To the extent that replacements are 
allocated to items involuntarily liquidated, however, the provisions of 
this section shall apply, both with respect to adjustments for the year 
of liquidation and other taxable years affected and with respect to 
inventory computations for the year of replacement and all subsequent 
taxable years.
    (h) In some cases it may appear that, at the time of the filing of 
the income tax return for the year of replacement, or within three years 
thereafter, an adjustment with respect to the income or excess profits 
taxes for the year of the involuntary liquidation, or for some prior, 
intervening, or subsequent taxable year, is prevented by the running of 
the statute of limitations, by the execution of a closing agreement, by 
virtue of a court decision which has become final, or by reason of some 
other provision or rule of law other than section 7122 (relating to 
compromises) and other than the inventory replacement provisions. The 
adjustments provided for in connection with the involuntary liquidation 
and replacement of inventory shall nevertheless be made, but only if, 
within a period of three years after the date of the filing of the 
income tax return for the year of replacement, a notice of deficiency is 
mailed or a claim for refund is filed. No credit or refund will be 
allowed under such

[[Page 795]]

circumstances, whether within or without such three-year period, in the 
absence of a claim for refund duly filed; nor will a resulting 
deficiency be assessed or collected under section 6213(d) relating to 
waivers of restrictions. The issuance of the statutory notice of 
deficiency or the filing of a claim for refund are statutory conditions 
upon which depend the provisions of section 22(d)(6)(E) of the Internal 
Revenue Code of 1939, referred to in section 1321(c) of the Internal 
Revenue Code of 1954. The adjustment authorized by section 22(d)(6)(E) 
of the Internal Revenue Code of 1939 is limited further to the tax 
attributable solely to the replacement adjustments. The amount of the 
adjustment shall be computed by reference to the amount of the tax 
previously determined, and without regard to factors affecting the 
taxable year involved to which no effect was given in such prior 
determination. The tax previously determined shall be ascertained in 
accordance with the principles stated in section 452(d) of the Internal 
Revenue Code of 1939. Any deficiency paid or any overpayment credited or 
refunded under these circumstances shall not be subject to recovery on a 
claim for refund or a suit for the recovery of an erroneous refund in 
any case in which such claim or suit is based upon factors other than 
those giving rise to the adjustments made.

[T.D. 6500, 25 FR 12040, Nov. 26, 1960]



Sec.  1.1321-2  Liquidation and replacement of lifo inventories 
by acquiring corporations.

    For additional rules in the case of certain corporate acquisitions 
referred to in section 381(a), see section 381(c)(5) and the regulations 
thereunder.

[T.D. 6500, 25 FR 12042, Nov. 26, 1960]

                           War Loss Recoveries



Sec.  1.1331-1  Recoveries in respect of war losses.

    (a)(1) The amount of any recovery in respect of war loss property 
must be included in gross income to the extent provided in section 1332 
unless, pursuant to the taxpayer's election under section 1335, the 
provisions of section 1333 are applicable to such recovery. For the 
treatment of war loss recoveries under section 1333 and the manner of 
making the election under section 1335, see Sec. Sec.  1.1333-1 and 
1.1335-1.
    (2) As used in this part, the term war loss property means property 
considered under section 127(a) of the Internal Revenue Code of 1939 as 
destroyed or seized, including any interest described in section 
127(a)(3) of the Internal Revenue Code of 1939.
    (3) For regulations governing the treatment of war losses under the 
Internal Revenue Code of 1939, see 26 CFR (1939) 29.127(a)-1 to 
29.127(a)-4, inclusive, 29.127(b)-1, and 29.127(e)-1 (Regulations 111) 
and 26 CFR (1939) 39.127(a)-1 (Regulations 118).
    (b) The recoveries in respect of any war loss property include the 
recovery of the same war loss property and the recovery of any money or 
property in lieu of such property or on account of the destruction or 
seizure of such property. For example, there is a recovery upon the 
return to the taxpayer after the termination of the war of his property 
which was treated as war loss property because it was located in a 
country at war with the United States. An award by a government on 
account of the seizure of the taxpayer's property by an enemy country is 
a recovery under this section. The amount obtained upon the sale or 
other transfer by the taxpayer of his right to any war loss property is 
also a recovery for the purpose of this section. Similarly, if a 
taxpayer who sustained a war loss upon the liquidation of a corporation 
has received the rights to any property of the corporation which was 
treated as war loss property, any recovery by the taxpayer with respect 
to such rights is a recovery by him for the purposes of this section.
    (c) For the purpose of this section, the recoveries considered are 
only those with respect to war losses sustained in prior taxable years. 
Similarly, the only deductions considered are those allowable for prior 
taxable years, and any allowable deductions for the year of the recovery 
are ignored for the purposes of applying such section to the recovery.
    (d) If a deduction was claimed under section 127(a) of the Internal 
Revenue Code of 1939 by a taxpayer in computing his tax for any taxable 
year and

[[Page 796]]

if such deduction was disallowed in whole or in part, any recovery in 
respect of the portion disallowed shall not be subject to the provisions 
of part IV (section 1331 and following), subchapter Q, chapter 1 of the 
Code.

[T.D. 6500, 25 FR 12042, Nov. 26, 1960]



Sec.  1.1332-1  Inclusion in gross income of war loss recoveries.

    (a) Amount of recovery. Except as provided in section 1333(1), the 
amount of the recovery in respect of a war loss in a previous taxable 
year is determined in the same manner for the purpose of either section 
1332 or 1333. The amount of the recovery of any money or property in 
respect of any war loss is the aggregate of the amount of such money and 
of the fair market value of such property, both determined as of the 
date of the recovery. But see paragraph (a) of Sec.  1.1333-1 for 
optional valuation where the taxpayer recovers the same war loss 
property.
    (b) Amount of gain includible. (1) A taxpayer who has sustained a 
war loss described in section 127(a) of the Internal Revenue Code of 
1939 and who has not elected to have the provisions of section 1333 
apply to any taxable year in which he recovered any money or property in 
respect of a war loss in any previous taxable year must include in his 
gross income for each taxable year, to the extent provided in section 
1332, the amount of his recoveries of money and property for such 
taxable year in respect of any war loss in a previous taxable year. 
Section 1332 provides that such recoveries for any taxable year are not 
includible in income until the taxpayer has recovered an amount equal to 
his allowable deductions in prior taxable years on account of such war 
losses which did not result in a reduction of any tax under chapter 1 or 
2 of the Internal Revenue Code of 1939. War loss recoveries are 
considered as made first on account of war losses allowable but not 
actually allowed as a deduction, and second on account of war losses 
allowed as a deduction but which did not result in a reduction of tax 
under chapter 1 or 2 of the Internal Revenue Code of 1939. If there were 
deductions allowed on account of war losses for two or more taxable 
years which did not result in a reduction of any tax under chapter 1 or 
2 of the Internal Revenue Code of 1939, a recovery on account of such 
losses is considered as made on account of such losses in the order of 
the taxable years for which they were allowed beginning with the latest. 
See Sec.  1.1337-1 for the determination of the amount of such 
deductions. Recoveries in excess of such amount are treated as ordinary 
income until such excess equals the amount of the taxpayer's allowable 
deductions in prior taxable years on account of war losses which did 
result in a reduction of any such tax under chapter 1 or 2 of the 
Internal Revenue Code of 1939. Any further recoveries in excess of all 
the taxpayer's allowable deductions in prior taxable years for war 
losses are treated as gain on an involuntary conversion of property as a 
result of its destruction or seizure, and such gain is recognized or not 
recognized under the provisions of section 1033. See section 1033 and 
the regulations thereunder. Such gain, if recognized, is included in 
gross income as ordinary income unless section 1231(a) applies to cause 
such gain to be treated as gain from the sale or exchange of a capital 
asset held for more than six months. See section 1231(a) and the 
regulations thereunder.
    (2) The determination as to whether and to what extent any 
recoveries are to be included in gross income is made upon the basis of 
the amount of all the recoveries for each day upon which there are any 
such recoveries, as follows:
    (i) The amount of the recoveries for any day is not included in 
gross income, and is not considered gain on an involuntary conversion, 
to the extent, if any, that the aggregate of the allowable deductions in 
prior taxable years on account of war losses which did not result in a 
reduction of any tax of the taxpayer under chapter 1 or 2 of the 
Internal Revenue Code of 1939, as determined under Sec.  1.1337-1, 
exceeds the amount of all previous recoveries in the same and prior 
taxable years.
    (ii) The amount of the recoveries for any day which is not excluded 
from gross income under subdivision (i) of this subparagraph is included 
in gross income as ordinary income, and is not considered gain on an 
involuntary conversion, to the extent, if any, that the

[[Page 797]]

aggregate of all the allowable deductions in prior taxable years on 
account of war losses (both those which resulted in a reduction of a tax 
of the taxpayer and those which did not) exceeds the sum of the amount 
of all previous recoveries in the same and prior taxable years and of 
that portion, if any, of the amount of the recoveries for such day which 
is not included in gross income under subdivision (i) of this 
subparagraph.
    (iii) The amount of the recoveries for any day which is not excluded 
from gross income under subdivision (i) of this subparagraph and is not 
included in gross income as ordinary income under subdivision (ii) of 
this subparagraph is considered gain on an involuntary conversion of 
property as a result of its destruction or seizure. The following 
provisions then apply to this gain:
    (a) Such gain is recognized or not recognized under the provisions 
of section 1033, relating to gain on the involuntary conversion of 
property. For the purpose of applying section 1033, such gain for any 
day is deemed to be expended in the manner provided in section 1033 to 
the extent the recovery for such day is so expended.
    (b) If such gain is recognized, it is included in gross income as 
ordinary income or, if the provisions of section 1231(a) apply and 
require such treatment, as gain on the sale or exchange of a capital 
asset held for more than six months. For the purpose of applying section 
1231(a), such recognized gain for any day is deemed to be derived from 
property described in that section to the extent of the recovery for 
such day with respect to such property, except such portion of such 
recovery as is attributable to the nonrecognized gain for such day.
    (c) Section 1336 provides that in determining the unadjusted basis 
of recovered property, the total gain and the recognized gain with 
respect to such property must be determined. For such purpose, the 
recognized gain deemed to be derived from properties described in 
section 1231(a) may be allocated among such properties in the proportion 
of the recoveries with respect to such properties, reduced for each 
property by the portion of the recovery attributable to the 
nonrecognized gain for such day, and the recoveries with respect to 
properties not described in section 1231(a) may be similarly allocated. 
The total gain derived from any recovered property is the sum of the 
nonrecognized gain attributable to the recovery of such property and of 
the recognized gain allocable to such property.
    (3) The foregoing provisions may be illustrated by the following 
examples:

    Example 1. The taxpayer sustained war losses of $3,000 on account of 
properties A, B, C, and D. Of this amount, $1,000 did not result in a 
reduction of any income tax of the taxpayer, as determined under the 
provisions of Sec.  1.1337-1. In a subsequent taxable year, he received 
an award of $800 from the Government on account of property A. This is 
not included in income since it is less than the amount by which his 
allowable deductions for prior taxable years on account of war losses 
which did not result in any tax benefit ($1,000) exceed $0, the sum of 
all his previous recoveries. On a later date the taxpayer recovers 
property B, which is worth $1,500 on the date of recovery. This recovery 
is not included in gross income to the extent of $200, the amount by 
which the aggregate of the allowable deductions for prior taxable years 
on account of war losses which did not result in any tax benefit 
($1,000) exceeds the sum of all previous recoveries ($800). The 
remaining $1,300 of the recovery is included in gross income as ordinary 
income, and is not considered gain on the involuntary conversion of 
property, since it is less than the amount by which the aggregate of all 
the allowable deductions in prior taxable years on account of war losses 
($3,000) exceeds $1,000, the sum of the $800 of previous recoveries and 
of the $200 portion of the recovery with respect to B which is not 
included in gross income. On a still later date the taxpayer sells for 
$2,500 his rights to recover C. Since the allowable deductions for prior 
taxable years on account of war losses which did not result in any tax 
benefit ($1,000) do not exceed the previous recoveries by the taxpayer 
($800 and $1,500, or $2,300), none of the recovery on account of C is 
excluded from gross income. This recovery is included in gross income as 
ordinary income, and is not considered gain on the involuntary 
conversion of property, to the extent of $700, the amount by which the 
aggregate of all the allowable deductions for prior taxable years on 
account of war losses ($3,000) exceeds $2,300, the sum of the $2,300 of 
previous recoveries and of the $0 portion of the recovery on account of 
C which is not included in gross income. The remaining $1,800 of the 
recovery is considered gain on an involuntary conversion of

[[Page 798]]

property on account of its destruction or seizure, and is not recognized 
if forthwith expended in the manner provided in section 1033. Thus, it 
is not recognized if it is forthwith expended for the acquisition of 
property related in service or use to C. On a later date the taxpayer 
recovers D, which has a fair market value of $400 at the time of the 
recovery. Since the aggregate of all the allowable deductions for prior 
taxable years on account of war losses ($3,000) does not exceed the 
previous recoveries by the taxpayer ($800 + $1,500 + $2,500, or $4,800), 
all of the recovery with respect to D is considered gain on an 
involuntary conversion of property as a result of its destruction or 
seizure. Under the provisions of section 1033, this gain is not 
recognized if D is used for the same purposes for which it was used 
before it was deemed destroyed or seized under section 127(a) of the 
Internal Revenue Code of 1939.
    Example 2. The taxpayer on one day recovers $3,000 for property A 
and $7,000 for property B, both of which were treated as war loss 
property for a prior taxable year, and $8,000 of such $10,000 recoveries 
is considered gain on the involuntary conversion of property as a result 
of its destruction or seizure. The taxpayer forthwith expends $5,000 in 
the acquisition of property similar in use to B. Therefore, $5,000 of 
the $8,000 gain is not recognized under section 1033, leaving $3,000 of 
recognized gain. Property B is within the provisions of section 1231(a), 
relating to gains and losses on the involuntary conversion of certain 
described property, but property A is not. Therefore, the provisions of 
section 1231(a) apply to $2,000 of the $3,000 gain, that is, the amount 
of the recovery with respect to B which is not attributable to the 
nonrecognized gain for such day ($7,000 minus $5,000). If the taxpayer 
forthwith expended $8,000 or more for the acquisition of property 
similar in use to B, none of the gain would be recognized. If the 
taxpayer forthwith expended the $5,000 to acquire property related in 
use to A, the $3,000 recognized gain would be considered derived from B 
to the extent of the recovery with respect to B ($7,000), not reduced by 
any nonrecognized gain since none of such recovery is attributable to 
such nonrecognized gain, and therefore all of the $3,000 recognized gain 
would be subject to the provisions of section 1231(a).

    (4) An allowable deduction with respect to a war loss is any 
deduction to which the taxpayer is entitled on account of any war loss 
property, regardless of whether or not such deduction was claimed by the 
taxpayer or otherwise allowed in computing his tax. If a deduction was 
claimed by a taxpayer in computing his tax for any taxable year and if 
such deduction was disallowed, such deduction will not be considered an 
allowable deduction for such taxable year since the previous 
determination will not be reconsidered.

[T.D. 6500, 25 FR 12043, Nov. 26, 1960]



Sec.  1.1333-1  Tax adjustment measured by prior benefits.

    (a) Amount of recovery. The amount of recovery for purposes of this 
section shall be determined in accordance with the provisions of section 
1332(a). See paragraph (a) of Sec.  1.1332-1. If, pursuant to the 
taxpayer's election under section 1335, the provisions of section 1333 
are applicable to any taxable year in which he recovers the same war 
loss property, the fair market value of such property shall, at the 
option of the taxpayer, be considered an amount equal to the adjusted 
basis (for determining loss) of such property in the hands of the 
taxpayer on the date such property was considered as destroyed or 
seized. This option is exercisable by the taxpayer with respect to each 
separate war loss property. Also, if the provisions of section 1333 are 
applicable pursuant to the taxpayer's election, the amount of the 
recovery of any money or property in respect of war loss property shall 
be reduced for the purpose of section 1333 (2) and (3) by the amount of 
the obligations or liabilities with respect to such property, if the 
taxpayer for any previous taxable year chose under section 127(b)(2) of 
the Internal Revenue Code of 1939 to treat such obligations or 
liabilities as discharged or satisfied out of such property, and such 
obligations or liabilities were not so discharged or satisfied before 
the date of the recovery. See 26 CFR (1939) 29.127(b)-1 (Regulations 
111).
    (b) Elective method; tax adjustment measured by prior benefits. (1) 
If the taxpayer elects pursuant to section 1335 and in accordance with 
the provisions of Sec.  1.1335-1 to have the provisions of section 1333 
apply to any taxable year in which he recovers any money or property in 
respect of war loss property, the amount of the recovery in respect of 
such property for any taxable year shall not be included in income until 
the taxpayer has recovered an amount equal to his allowable deductions 
in prior taxable years on account of the destruction or seizure of such

[[Page 799]]

property, whether or not such allowable deductions resulted in a 
reduction of any tax under chapter 1 or 2 of the Internal Revenue Code 
of 1939. However, for the purposes of section 6012(a)(1), relating to 
the requirement of individual returns, section 6012(a)(2), relating to 
the requirement of corporation returns, and section 1312, relating to 
the mitigation of the effect of the statute of limitations, the entire 
amount of the recovery shall be deemed to be an item includible in gross 
income for the taxable year in which the recovery is made. In lieu of 
including such amount in gross income, there shall be added to, and 
assessed and collected as a part of, the tax imposed under subtitle A of 
the Internal Revenue Code of 1954 for the taxable year of the recovery 
an adjustment on account of any tax benefits in all prior taxable years 
resulting directly or indirectly from the fact that the loss from the 
destruction or seizure of such property was an allowable deduction. The 
amount of such adjustment shall be the total increase in the tax under 
chapters 1 and 2 of the Internal Revenue Code of 1939 for all taxable 
years which would result by decreasing such allowable deductions with 
respect to the destruction or seizure of such property by an amount 
equal to that portion of the amount of the recovery which is not 
included in gross income for the taxable year of the recovery. The 
portion of the amount of the recovery which is in excess of such 
allowable deductions is included in gross income for the taxable year of 
the recovery as gain on the involuntary conversion of property as a 
result of its destruction or seizure and is recognized or not recognized 
as provided in section 1033. See section 1033 and the regulations 
thereunder. Such gain, if recognized, is included in gross income as 
ordinary income unless section 1231(a) applies to cause such gain to be 
treated as gain on the sale or exchange of capital assets held for more 
than six months. See section 1231(a) and the regulations thereunder.
    (2) The determination as to whether and to what extent the amount of 
the recovery is to be excluded from gross income is to be made upon the 
basis of the total amount of the recoveries in each taxable year in 
respect of the same war loss property, as follows:
    (i) The amount of the recovery in any taxable year is excluded from 
the gross income of such year and is not considered gain on an 
involuntary conversion to the extent that such amount does not exceed 
the aggregate of the allowable deductions in prior taxable years on 
account of the destruction or seizure of such property (whether or not 
such deductions resulted in a reduction of a tax of the taxpayer) 
reduced by the aggregate amount of any recoveries in intervening taxable 
years in respect of the same property.
    (ii) The amount of the recovery in any taxable year which is not 
excluded from gross income under subdivision (i) of this subparagraph is 
included in gross income and is considered gain on an involuntary 
conversion of property as a result of its destruction or seizure. The 
following provisions apply to this gain:
    (a) Such gain is recognized or not recognized under the provisions 
of section 1033, relating to gain on the involuntary conversion of 
property. For the purpose of applying section 1033, such gain for any 
taxable year is deemed to be expended in the manner provided in section 
1033 to the extent the recovery in such taxable year is so expended.
    (b) If such gain is recognized it is included in gross income as 
ordinary income or, if the provisions of section 1231(a) apply and 
require such treatment, as gain on the sale or exchange of a capital 
asset held for more than six months. In the case of the recovery of the 
same war loss property, any gain will not be deemed to be recognized 
under the provisions of section 1231(a) if such property is used for the 
same purpose for which it was used before it was deemed destroyed or 
seized under section 127(a) of the Internal Revenue Code of 1939.
    (3) The determination of the total increase in the tax under 
chapters 1 and 2 of the Internal Revenue Code of 1939 for all taxable 
years which would result by decreasing the deductions allowable in any 
prior taxable year with respect to the destruction or seizure of the 
property in respect of which the taxpayer has made a recovery by an

[[Page 800]]

amount equal to the part of such recovery not included in gross income 
for the taxable year of such recovery shall be made as provided in this 
subparagraph. Such total increase shall include the increases described 
in subdivisions (i), (ii), (iii), and (iv) of this subparagraph, and 
shall be added to, and assessed and collected as a part of, the tax 
under subtitle A for the taxable year of the recovery. Proper adjustment 
of such increases shall be made on account of the application of the 
provisions of this subparagraph to intervening taxable years. Proper 
adjustment shall also be made in the determination of such increases in 
the case of a taxpayer who has made a valid election under section 1020, 
relating to the adjustment of basis of property for depreciation, 
obsolescence, amortization, and depletion. The term tax previously 
determined as used in this subparagraph shall have the same meaning as 
used in section 1314(a) and shall include any tax under chapter 1 or 2 
of the Internal Revenue Code of 1939. In computing the amount of the 
increase in the tax previously determined under chapter 1 or 2 of the 
Internal Revenue Code of 1939 for any taxable year, the principles of 
section 1314(a) shall be applicable. See section 1314(a) and the 
regulations thereunder. However, the computation of the excess profits 
credit under chapter 2E of the Internal Revenue Code of 1939 for any 
taxable year shall not be affected by the adjustment provided in this 
subparagraph. All credits allowable against the tax for any year shall 
be taken into account in computing the increase in the tax previously 
determined. The increases referred to above include the following:
    (i) The increase, if any, in the tax previously determined for each 
prior taxable year in which a deduction was allowable on account of the 
destruction or seizure of the property in respect of which there is a 
recovery in the taxable year. After the tax previously determined has 
been ascertained, such tax shall be recomputed by disregarding such 
allowable deduction (to the extent that it does not exceed the sum of 
the amount of such recovery not included in gross income for the taxable 
year of such recovery, plus the aggregate amount of any recoveries in 
intervening taxable years in respect of the same property) and any other 
deductions allowable on account of other war losses or any other losses, 
expenditures or accruals in such prior taxable year in respect of which, 
and to the extent that, recoveries in intervening taxable years have 
been excluded from gross income under section 127(c)(3) or section 
22(b)(12) of the Internal Revenue Code of 1939, or section 1333 or 
section 111 of the Internal Revenue Code of 1954, or otherwise. The 
difference between the tax previously determined and the tax as 
recomputed will be the increase in the tax previously determined for the 
taxable year.
    (ii) The increase, if any, in the tax previously determined for any 
taxable year (including the taxable year of the recovery) in which a net 
operating loss deduction was allowable, if all or a part of such 
deduction was attributable to the carryover or carryback to such taxable 
year of a net operating loss from another taxable year in which a 
deduction was allowable on account of the destruction or seizure of the 
property in respect of which there is a recovery in the taxable year to 
which such increase is to be added. After the tax previously determined 
has been ascertained, such tax shall be recomputed by redetermining such 
net operating loss deduction. In the determination of such net operating 
loss deduction the net operating loss shall be recomputed by 
disregarding the deduction allowable on account of the war loss in 
respect of which there is a recovery in the taxable year to which such 
increase is to be added (to the extent that such deduction does not 
exceed the sum of the amount of such recovery not included in gross 
income for the taxable year of such recovery, plus the aggregate amount 
of any recoveries in intervening taxable years in respect of the same 
property) and by disregarding any other deductions allowable on account 
of other war losses or any other losses, expenditures, or accruals in 
the taxable year in respect of which, and to the extent that, recoveries 
in intervening taxable years have been excluded from gross income under

[[Page 801]]

section 127(c)(3) or 22(b)(12) of the Internal Revenue Code of 1939, or 
section 1333 or 111 of the Internal Revenue Code of 1954, or otherwise. 
The difference between the tax previously determined and the tax as 
recomputed will be the increase in the tax previously determined for the 
taxable year.
    (iii) The increase, if any, in the tax previously determined for any 
taxable year (including the taxable year of recovery) in which an unused 
excess profits credit was availed of in computing the unused excess 
profits credit adjustment for such taxable year, if all or a part of 
such adjustment was attributable to the carryover or carryback to such 
taxable year of an unused excess profits credit from another taxable 
year in which a deduction was allowable on account of the destruction or 
seizure of the property in respect of which there is a recovery in the 
taxable year to which such increase is to be added. After the tax 
previously determined has been ascertained, such tax shall be recomputed 
by redetermining such unused excess profits credit carryover or 
carryback. In the recomputation such carryover or carryback shall be 
redetermined by disregarding such allowable war loss deduction (to the 
extent such deduction does not exceed the sum of the amount of the 
recovery not included in gross income for the taxable year of such 
recovery, plus the aggregate amount of any recoveries in intervening 
taxable years in respect of the same property) and by disregarding any 
other deductions allowable on account of other war losses or any other 
losses, expenditures, or accruals in the taxable year in respect of 
which, and to the extent that, recoveries in intervening taxable years 
have been excluded from gross income under section 127(c)(3) or 
22(b)(12) of the Internal Revenue Code of 1939, or section 1333 or 111 
of the Internal Revenue Code of 1954, or otherwise. The difference 
between the tax previously determined and the tax as recomputed will be 
the increase in the tax previously determined for the taxable year. In 
case there is an increase in the excess profits tax under chapter 2E of 
the Internal Revenue Code of 1939 for the taxable year in which an 
unused excess profits credit was availed of in computing the unused 
excess profits credit adjustment, and a decrease in the income tax under 
chapter 1 of the Internal Revenue Code of 1939 for such taxable year, 
the increase in the tax previously determined shall be considered to be 
an amount equal to the excess of the increase in the excess profits tax 
over the decrease in the income tax.
    (iv) The increase, if any, in the tax previously determined for any 
taxable year (including the taxable year of the recovery) in which an 
unused excess profits credit was availed of in computing the unused 
excess profits credit adjustment for such taxable year, if all or a part 
of such adjustment was attributable to the carryover or carryback to 
such taxable year of an unused excess profits credit from another 
taxable year in which there was allowable a net operating loss deduction 
attributable to the carryover or carryback to such other taxable year of 
a net operating loss, and such net operating loss resulted in whole or 
in part from the deduction allowable on account of the destruction or 
seizure of the property in respect of which there is a recovery in the 
taxable year to which such increase is to be added. After the tax 
previously determined has been ascertained, such tax shall be recomputed 
by redetermining such net operating loss deduction and such unused 
excess profits credit carryover or carryback. In the redetermination of 
such net operating loss deduction the net operating loss carryover or 
carryback shall be recomputed by disregarding such allowable war loss 
deduction (to the extent that such deduction does not exceed the sum of 
the amount of such recovery not included in gross income for the taxable 
year of such recovery, plus the aggregate amount of any recoveries in 
intervening taxable years in respect of the same property) and by 
disregarding any other deductions allowable on account of other war 
losses or any other losses, expenditures, or accruals in the taxable 
year in respect of which, and to the extent that, recoveries in 
intervening taxable years have been excluded from gross income under 
section

[[Page 802]]

127(c)(3) or 22(b)(12) of the Internal Revenue Code of 1939, or section 
1333 or 111 of the Internal Revenue Code of 1954, or otherwise. The 
unused excess profits credit carryover or carryback shall then be 
recomputed to conform to the redetermination of the net operating loss 
deduction for the taxable year from which the unused credit is carried 
over or carried back. The difference between the tax previously 
determined and the tax as recomputed shall be the amount of the increase 
which shall be added to the tax for the taxable year of the recovery. In 
case there is an increase in the excess profits tax under chapter 2E of 
the Internal Revenue Code of 1939 for the taxable year in which an 
unused excess profits credit was availed of in computing the unused 
excess profits credit adjustment, and a decrease in the income tax under 
chapter 1 of the Internal Revenue Code of 1939 for such taxable year, 
the increase which shall be added to the tax for the taxable year of the 
recovery shall be considered to be an amount equal to the excess of the 
increase in the excess profits tax over the decrease in the income tax.

[T.D. 6500, 25 FR 12045, Nov. 26, 1960]



Sec.  1.1334-1  Restoration of value of investments.

    If any interest of the taxpayer in or with respect to property was 
determined to be worthless and was treated as a war loss under section 
127(a)(3) of the Internal Revenue Code of 1939 (see 26 CFR (1939) 
29.127(a)-4) (Regulations 111), or if the taxpayer retained an interest 
in a corporation with respect to which he sustained a war loss under 
section 127(e) of the Internal Revenue Code of 1939, and if the interest 
in the hands of the taxpayer is restored in value, in whole or in part, 
by reason of a recovery with respect to the underlying assets treated as 
war loss property, then such restoration in value is a recovery by the 
taxpayer for the purposes of section 1331. In the application of section 
1333, such restoration shall be treated as a recovery of the same 
interest considered as destroyed or seized. War loss property is 
considered as not being in existence from the date of the loss to the 
date of its recovery.

[T.D. 6500, 25 FR 12046, Nov. 26, 1960]



Sec.  1.1335-1  Elective method; time and manner of making election 
and effect thereof.

    (a) In general. If the taxpayer elects to have the provisions of 
section 1333 applicable to any taxable year in which any money or 
property is recovered in respect of war loss property, section 1333 will 
be applicable by virtue of that election to all taxable years of the 
taxpayer beginning after December 31, 1941. Thus, the taxpayer need not 
make an election with respect to each separate taxable year in which he 
had a recovery. An election for any taxable year in which the taxpayer 
had a recovery in respect of a prior war loss is sufficient to make the 
provisions of section 1333 applicable not only to war loss recoveries 
received by the taxpayer in any past taxable year beginning after 
December 31, 1941, but to any recoveries which may be received by the 
taxpayer in any future taxable year. Such election once made shall be 
irrevocable. The election to have the provisions of section 1333 
applicable to any taxable year cannot be made unless the taxpayer 
recovers money or property (in respect of a prior war loss) during the 
taxable year for which such election is made.
    (b) Manner of election. In all cases the election to have the 
provisions of section 1333 apply must be made by the taxpayer not later 
than six months from the last day prescribed by law for the filing of 
his income tax return for any taxable year in which a recovery of war 
loss property has occurred. The election shall be evidenced by a written 
statement, made within such 6-month period, that the taxpayer elects to 
have the provisions of section 1333 apply to any taxable year in which 
any money or property is recovered in respect of war loss property. The 
statement may be made in (or attached to):
    (1) The return or amended return filed for such taxable year;
    (2) A claim for refund or credit filed for such taxable year for an 
overpayment resulting from application of such provisions;

[[Page 803]]

    (3) A timely petition or amended petition to The Tax Court of the 
United States for a redetermination of any deficiency for any taxable 
year in which a recovery of war loss property occurred; or
    (4) A letter addressed to the district director for the district in 
which the return for such taxable year was required to be filed.

If the written statement of election is made in a letter, it shall be 
signed by the taxpayer making the election if an individual or, if the 
taxpayer is not an individual, the letter must be executed in the same 
manner as required in the case of the income tax return of such 
taxpayer. The date of the making of the election shall be the date the 
return, amended return, claim for refund or credit, or letter is filed 
in the office of the district director, or the date the petition or 
amended petition is filed with The Tax Court of the United States. In 
case the election is made in a return filed before the last day 
prescribed by law for the filing thereof (including any extension of 
time for such filing), such election shall not be considered made until 
such last day. See section 7502 and the regulations thereunder with 
respect to the timeliness of filing an election where filing is done by 
mail and section 7503 and the regulations thereunder with respect to the 
timeliness of filing where the last day for filing falls on a Saturday, 
Sunday, or legal holiday.
    (c) Effect of election. (1) If the provisions of section 1333 are 
applicable to any taxable year pursuant to an election made by the 
taxpayer in accordance with the provisions of paragraph (a) of this 
section, the period of limitations provided in chapter 66 of the Code on 
the making of assessments and the beginning of distraint or a proceeding 
in court for collection with respect to (i) the amount to be added to 
the tax for such taxable year under the provisions of section 1333 and 
(ii) any deficiency for such taxable year or for any other taxable year 
to the extent attributable to the basis of the recovered property being 
determined under the provisions of section 1336(b), shall not expire 
prior to the expiration of two years following the date of the making of 
such election. Such amount or such deficiency may be assessed at any 
time prior to the expiration of such period, notwithstanding any law or 
rule of law which would otherwise prevent such assessment and 
collection.
    (2) If the provisions of section 1333 are applicable to any taxable 
year pursuant to an election made by the taxpayer in accordance with the 
provisions of paragraph (a) of this section, and refund or credit of any 
overpayment resulting from the application of such provisions to such 
taxable year is prevented on the date of the making of such election, or 
within one year from such date, by the operation of any law or rule of 
law (other than section 7122 relating to compromises), refund or credit 
of such overpayment may nevertheless be made or allowed, provided claim 
therefor is filed within one year from such date. Thus, the amount of 
such overpayment which may be refunded or credited is not subject to the 
limitations contained in section 6511 or 6512(b).
    (3) In the case of any taxable year ending before the date of the 
making by the taxpayer of an election under section 1335, no interest 
shall be paid on any overpayment specified in subparagraph (2) of this 
paragraph for any period before the expiration of six months following 
the date of the making of such election by the taxpayer, and no interest 
shall be assessed or collected with respect to any amount or any 
deficiency specified in subparagraph (1) of this paragraph for any 
period before the expiration of six months following the date of the 
making of such election by the taxpayer.

[T.D. 6500, 25 FR 12047, Nov. 26, 1960]



Sec.  1.1336-1  Basis of recovered property.

    (a) General rule. (1) Under section 1336(a), the unadjusted basis of 
any war loss property which is recovered and the unadjusted basis of any 
property which is recovered in lieu of or on account of any such war 
loss property is considered the fair market value of such recovered 
property upon the date of its recovery with the following adjustments:
    (i) If the sum of the recoveries for the day such property is 
recovered and of all previous recoveries exceeds the aggregate of the 
allowable deductions for

[[Page 804]]

prior taxable years on account of war losses, so that a portion of the 
recoveries for such day is treated as gain on the involuntary conversion 
of property, such fair market value of the property is reduced by the 
total gain, if any, for such day derived from such recovered property as 
determined under paragraph (b) of Sec.  1.1332-1.
    (ii) Such fair market value, as reduced under subdivision (i) of 
this subparagraph, is increased by the portion, if any, of the 
recognized gain resulting from the recoveries for such day which is 
allocable to such recovered property, as determined under paragraph (b) 
of Sec.  1.1332-1.

In effect, the unadjusted basis of such property is its fair market 
value upon the date of its recovery, reduced by the amount of 
nonrecognized gain attributable to such recovery under the provisions of 
paragraph (b) of Sec.  1.1332-1.
    (2) If the respective bases of several properties of a taxpayer 
determined under section 1336(a) are greatly disproportionate to their 
adjusted bases immediately before their treatment as war loss 
properties, the taxpayer may apply to the Commissioner for the 
allocation of the aggregate of the bases of such properties among them 
in the proportion of their adjusted bases immediately before the 
destruction or seizure of such properties determined under section 
127(a) of the Internal Revenue Code of 1939. The amount so allocated to 
any such property, in an application approved by the Commissioner, shall 
be the unadjusted basis of such property in lieu of the amount 
determined under subparagraph (1) of this paragraph.
    (3) The application to the Commissioner shall set forth a list of 
all the properties of the taxpayer having an unadjusted basis determined 
under this section, a description of each such property together with a 
statement as to the amount of its adjusted basis immediately before the 
destruction or seizure of such property determined under section 127(a) 
of the Internal Revenue Code of 1939, and a statement as to whether 
there has been any substantial change in the use or nature of the 
property chosen for the allocation from its nature or use immediately 
before the time it was treated as destroyed or seized. Such application 
will be allowed unless there has been such a substantial change in the 
nature or use of such property that the allocation of the bases would 
produce an arbitrary result, or unless the taxpayer has obtained such 
tax benefits by reason of the basis determined under subparagraph (1) of 
this paragraph, that it would be inequitable to change his basis. Thus, 
the allocation will not be allowed if it would give the taxpayer an 
unadjusted basis with respect to any property which is less than the 
amount of the adjustments in reduction of the basis of such property 
which are allowable after its recovery. For example, when property A is 
recovered it has an unadjusted basis of $100. After $70 depreciation has 
been allowed on A, an allocation is sought which would give A an 
unadjusted basis of $60. Since this is less than the depreciation which 
is an adjustment against such basis, the allocation will not be 
permitted.
    (4) The amount of any adjustments to the unadjusted basis determined 
under subparagraph (1) of this paragraph shall, upon the allocation of 
the bases, be taken as an adjustment to the allocated unadjusted basis. 
Thus, if $30 depreciation was allowed upon a $100 basis determined under 
subparagraph (1) of this paragraph and if the unadjusted basis upon 
allocation is $75, such $30 depreciation is allowed against such 
allocated unadjusted basis, so that the adjusted basis of the property 
is then $45.
    (5) The taxpayer may choose any group of recovered properties for 
allocation, except that if any such recovered properties form one 
economic unit, such properties may not be separated but all or none must 
be included in the group. For example, a building may not be separated 
from the land on which it stands if both are recovered property, nor may 
one block of stock in a corporation be separated from other stock in 
such corporation or from bonds in such corporation which are also 
treated as a recovery. If the taxpayer has once been permitted to 
allocate the bases of any group of properties, he may obtain another 
allocation with respect to such properties only if all the properties in 
the original group are included together with other

[[Page 805]]

recovered properties not included in the original group. For example, if 
the bases of properties A and B are allocated, a second allocation will 
be made for properties A, B, and C, but not for A and C or B and C.
    (b) Property recovered in taxable year to which section 1333 is 
applicable. If, pursuant to an election made by the taxpayer under 
section 1335 and paragraph (a) of Sec.  1.1335-1, the provisions of 
section 1333 are applicable to any taxable year in which the taxpayer 
recovered property in respect of a war loss under section 127(a) of the 
Internal Revenue Code of 1939, the unadjusted basis of such property 
shall be the fair market value of such property determined as of the 
date of the recovery, reduced by the amount of nonrecognized gain 
attributable to such recovery under the provisions of paragraph (b) of 
Sec.  1.1333-1. However, if the property recovered is the same war loss 
property, and if the taxpayer under section 1333(1) includes such 
property in the amount of the recovery at its adjusted basis (for 
determining loss) in his hands on the date such property was considered 
under section 127(a) of the Internal Revenue Code of 1939 as destroyed 
or seized, the unadjusted basis of such property shall be such adjusted 
basis, reduced by the amount of nonrecognized gain attributable to such 
recovery under the provisions of paragraph (b) of Sec.  1.1333-1. The 
fair market value of any property recovered, or the adjusted basis for 
determining loss) of such property if the same property treated as war 
loss property is recovered, shall not be reduced in determining the 
unadjusted basis of such property by the amount of the obligations or 
liabilities with respect to such property in respect of which the 
recovery was received, if the taxpayer for any previous taxable year 
chose under section 127(b)(2) of the Internal Revenue Code of 1939 to 
treat such obligations or liabilities as discharged or satisfied out of 
such property but such obligations or liabilities were not so discharged 
or satisfied prior to the date of the recovery.

[T.D. 6500, 25 FR 12048, Nov. 26, 1960]



Sec.  1.1337-1  Determination of tax benefits from allowable deductions.

    (a) That part of the aggregate of the deductions allowed a taxpayer 
for any taxable year on account of war losses under section 127(a) of 
the Internal Revenue Code of 1939 which, if disallowed, would not result 
in an increase in the normal tax, surtax (including the tax imposed by 
section 102 of the Internal Revenue Code of 1939), or victory tax of 
taxpayer, or of any tax imposed in lieu of such taxes or of any tax 
imposed by chapter 2 of the Internal Revenue Code of 1939, for the 
taxable year in which such deductions are allowed or in any other 
taxable year, such as a taxable year in which the taxpayer's income tax 
is computed by reference to a carryover or carryback of net operating 
losses from the taxable year in which such deductions are allowed, is 
considered, for the purposes of section 127(a) of the Internal Revenue 
Code of 1939 an allowable deduction for the taxable year which did not 
result in a reduction of any tax of the taxpayer under chapter 1 or 2 of 
the Internal Revenue Code of 1939. In the case of recoveries of war 
losses and other items to which the recovery exclusion provisions of 
section 111 apply, such as bad debts, the determination of the tax 
benefit should be made in accordance with section 111(b) and the 
regulations thereunder. The deductions allowed a taxpayer for any 
taxable year on account of war losses are all the deductions on account 
of war losses which were claimed by the taxpayer in a return, in a claim 
for credit or refund of an overpayment, or in a petition to The Tax 
Court of the United States with respect to such taxable year and which 
were not disallowed, and all deductions on account of war losses which, 
although not so claimed by the taxpayer, were nevertheless allowed (for 
example, by the Commissioner, a court, or The Tax Court) in computing a 
tax of the taxpayer.
    (b) Any deduction allowable for a taxable year on account of a war 
loss under section 127(a) of the Internal Revenue Code of 1939 which was 
not claimed by the taxpayer for such year in a return, a claim for 
credit or refund of an overpayment, or a petition to the Tax Court of 
the United States and was

[[Page 806]]

not allowed as a deduction (for example, by the Commissioner, a court, 
or the Tax Court) in computing his tax for such year or for any other 
year is considered a deduction which did not result in a reduction of 
any tax of the taxpayer under chapter 1 or 2 of the Internal Revenue 
Code of 1939, since it is an allowable deduction which was not allowed 
in computing any tax of the taxpayer. If the taxpayer claimed for any 
taxable year a deduction on account of a war loss, and if such deduction 
was disallowed, the taxpayer may not subsequently contend for the 
purposes of section 1331 that such deduction was an allowable deduction 
for such taxable year.
    (c) If the taxpayer elected under section 127(b) of the Internal 
Revenue Code of 1939 to decrease the amount of a war loss by treating 
the obligations and liabilities described in that section as discharged 
or satisfied out of the property destroyed or seized, and if the 
taxpayer establishes that any of the obligations and liabilities were 
not so discharged or satisfied, then the amount by which such continuing 
obligations and liabilities decreased the war loss shall be considered 
an allowable deduction for the taxable year in which the war loss was 
sustained which did not result in a reduction of any tax of the taxpayer 
under chapter 1 or 2 of the Internal Revenue Code of 1939.

[T.D. 6500, 25 FR 12048, Nov. 26, 1960]

                             Claim of Right



Sec.  1.1341-1  Restoration of amounts received or accrued 
under claim of right.

    (a) In general. (1) If, during the taxable year, the taxpayer is 
entitled under other provisions of chapter 1 of the Internal Revenue 
Code of 1954 to a deduction of more than $3,000 because of the 
restoration to another of an item which was included in the taxpayer's 
gross income for a prior taxable year (or years) under a claim of right, 
the tax imposed by chapter 1 of the Internal Revenue Code of 1954 for 
the taxable year shall be the tax provided in paragraph (b) of this 
section.
    (2) For the purpose of this section income included under a claim of 
right means an item included in gross income because it appeared from 
all the facts available in the year of inclusion that the taxpayer had 
an unrestricted right to such item, and restoration to another means a 
restoration resulting because it was established after the close of such 
prior taxable year (or years) that the taxpayer did not have an 
unrestricted right to such item (or portion thereof).
    (3) For purposes of determining whether the amount of a deduction 
described in section 1341(a)(2) exceeds $3,000 for the taxable year, 
there shall be taken into account the aggregate of all such deductions 
with respect to each item of income (described in section 1341(a)(1)) of 
the same class.
    (b) Determination of tax. (1) Under the circumstances described in 
paragraph (a) of this section, the tax imposed by chapter 1 of the 
Internal Revenue Code of 1954 for the taxable year shall be the lesser 
of:
    (i) The tax for the taxable year computed under section 1341(a)(4), 
that is, with the deduction taken into account, or
    (ii) The tax for the taxable year computed under section 1341(a)(5), 
that is, without taking such deduction into account, minus the decrease 
in tax (net of any increase in tax imposed by section 56, relating to 
the minimum tax for tax preferences) (under chapter 1 of the Internal 
Revenue Code of 1954, under chapter 1 (other than subchapter E) and 
subchapter E of chapter 2 of the Internal Revenue Code of 1939, or under 
the corresponding provisions of prior revenue laws) for the prior 
taxable year (or years) which would result solely from the exclusion 
from gross income of all or that portion of the income included under a 
claim of right to which the deduction is attributable. For the purpose 
of this subdivision, the amount of the decrease in tax is not limited to 
the amount of the tax for the taxable year. See paragraph (i) of this 
section where the decrease in tax for the prior taxable year (or years) 
exceeds the tax for the taxable year.
    (iii) For purposes of computing, under section 1341(a)(4) and 
subdivision (i) of this subparagraph, the tax for a taxable year 
beginning after December 31, 1961, if the deduction of the amount

[[Page 807]]

of the restoration results in a net operating loss for the taxable year 
of restoration, such net operating loss shall, pursuant to section 
1341(b)(4)(A), be carried back to the same extent and in the same manner 
as is provided under section 172 (relating to the net operating loss 
deduction) and the regulations thereunder. If the aggregate decrease in 
tax for the taxable year (or years) to which such net operating loss is 
carried back is greater than the excess of:
    (a) The amount of decrease in tax for a prior taxable year (or 
years) computed under section 1341(a)(5)(B), over
    (b) The tax for the taxable year computed under section 
1341(a)(5)(A),

The tax imposed for the taxable year under chapter 1 shall be the tax 
determined under section 1341(a)(4) and subdivision (i) of this 
subparagraph. If the tax imposed for the taxable year is determined 
under section 1341(a)(4) and subdivision (i) of this subparagraph, the 
decrease in tax for the taxable year (or years) to which the net 
operating loss is carried back shall be an overpayment of tax for the 
taxable year (or years) to which the net operating loss is carried back 
and shall be refunded or credited as an overpayment for such taxable 
year (or years). See section 6511(d)(2), relating to special period of 
limitation with respect to net operating loss carrybacks.
    (2) Except as otherwise provided in section 1341(b)(4)(B) and 
paragraph (d) (1)(ii) and (4)(ii) of this section, if the taxpayer 
computes his tax for the taxable year under the provisions of section 
1341(a)(5) and subparagraph (1)(ii) of this paragraph, the amount of the 
restoration shall not be taken into account in computing taxable income 
or loss for the taxable year, including the computation of any net 
operating loss carryback or carryover or any capital loss carryover. 
However, the amount of such restoration shall be taken into account in 
adjusting earnings and profits for the current taxable year.
    (3) If the tax determined under subparagraph (1)(i) of this 
paragraph is the same as the tax determined under subparagraph (1)(ii) 
of this paragraph, the tax imposed for the taxable year under chapter 1 
shall be the tax determined under subparagraph (1)(i) of this paragraph, 
and section 1341 and this section shall not otherwise apply.
    (4) After it has been determined whether the tax imposed for a 
taxable year of restoration beginning after December 31, 1961, shall be 
computed under the provisions of section 1341(a)(4) or under the 
provisions of section 1341(a)(5), the net operating loss, if any, which 
remains after the application of section 1341(b)(4)(A) or the net 
operating loss or capital loss, if any, which remains after the 
application of section 1341(b)(4)(B) shall be taken into account in 
accordance with the following rules:
    (i) If it is determined that section 1341(a)(4) and subparagraph 
(1)(i) of this paragraph apply, then that portion, if any, of the net 
operating loss for the taxable year which remains after the application 
of section 1341(b)(4)(A) and subparagraph (1)(iii) of this paragraph 
shall be taken into account under section 172 for taxable years 
subsequent to the taxable year of restoration to the same extent and in 
the same manner as a net operating loss sustained in such taxable year 
of restoration. Thus, if the net operating loss for the taxable year of 
restoration (computed with the deduction referred to in section 
1341(a)(4)) exceeds the taxable income (computed with the modifications 
prescribed in section 172) for the taxable year (or years) to which it 
is carried back, such excess shall be available as a carryover to 
taxable years subsequent to the taxable year of restoration.
    (ii) If it is determined that section 1341(a)(5) and subparagraph 
(1)(ii) of this paragraph apply, then that portion, if any, of a net 
operating loss or capital loss which remains after the application of 
section 1341(b)(4)(B) and paragraph (d)(4) of this section shall be 
taken into account under section 172 or 1212, as the case may be, for 
taxable years subsequent to the taxable year of restoration to the same 
extent and in the same manner as a net operating loss or capital loss 
sustained in the prior taxable year (or years). For example, if the net 
operating loss for the prior taxable year (computed with the exclusion 
referred to in section

[[Page 808]]

1341(a)(5)(B)) exceeds the taxable income (computed with the 
modifications prescribed in section 172) for prior taxable years to 
which such net operating loss is carried back or carried over (including 
for this purpose the taxable year of restoration), such excess shall be 
available as a carryover to taxable years subsequent to the taxable year 
of restoration in accordance with the rules prescribed in section 172 
which are applicable to such prior taxable year (or years).
    (c) Application to deductions which are capital in nature. Section 
1341 and this section shall also apply to a deduction which is capital 
in nature otherwise allowable in the taxable year. If the deduction 
otherwise allowable is capital in nature, the determination of whether 
the taxpayer is entitled to the benefits of section 1341 and this 
section shall be made without regard to the net capital loss limitation 
imposed by section 1211. For example, if a taxpayer restores $4,000 in 
the taxable year and such amount is a long-term capital loss, the 
taxpayer will, nevertheless, be considered to have met the $3,000 
deduction requirement for purposes of applying this section, although 
the full amount of the loss might not be allowable as a deduction for 
the taxable year. However, if the tax for the taxable year is computed 
with the deduction taken into account, the deduction allowable will be 
subject to the limitation on capital losses provided in section 1211, 
and the capital loss carryover provided in section 1212.
    (d) Determination of decrease in tax for prior taxable years--(1) 
Prior taxable years. (i) Except as otherwise provided in subdivision 
(ii) of this subparagraph, the prior taxable year (or years) referred to 
in paragraph (b) of this section is the year (or years) in which the 
item to which the deduction is attributable was included in gross income 
under a claim of right and, in addition, any other prior taxable year 
(or years) the tax for which will be affected by the exclusion from 
gross income in such prior taxable year (or years) of such income.
    (ii) For purposes of applying section 1341(b)(4)(B) in computing the 
amount of the decrease referred to in paragraph (b)(1)(ii) of this 
section for any taxable year beginning after December 31, 1961, the term 
prior taxable year (or years) includes the taxable year of restoration. 
Under section 1341(b)(4)(B), for taxable years of restoration beginning 
after December 31, 1961, in any case where the exclusion referred to in 
section 1341(a)(5)(B) and paragraph (b)(1)(ii) of this section results 
in a net operating loss or capital loss for the prior taxable year (or 
years), such loss shall, for purposes of computing the decrease in tax 
for the prior taxable year (or years) under such section 1341(a)(5)(B) 
and such paragraph (b)(1)(ii) of this section, be carried back and 
carried over to the same extent and in the same manner as is provided 
under section 172 (relating to the net operating loss deduction) or 
section 1212 (relating to capital loss carryover), except that no 
carryover beyond the taxable year shall be taken into account. See 
subparagraph (4) of this paragraph for rules relating to the computation 
of the amount of decrease in tax.
    (2) Amount of exclusion from gross income in prior taxable years. 
(i) The amount to be excluded from gross income for the prior taxable 
year (or years) in determining the decrease in tax under section 
1341(a)(5)(B) and paragraph (b)(1)(ii) of this section shall be the 
amount restored in the taxable year, but shall not exceed the amount 
included in gross income in the prior taxable year (or years) under the 
claim of right to which the deduction for the restoration is 
attributable, and shall be adjusted as provided in subdivision (ii) of 
this subparagraph.
    (ii) If the amount included in gross income for the prior taxable 
year (or years) under the claim of right in question was reduced in such 
year (or years) by a deduction allowed under section 1202 (or section 
117 (b) of the Internal Revenue Code of 1939 or corresponding provisions 
of prior revenue laws), then the amount determined under subdivision (i) 
of this subparagraph to be excluded from gross income for such year (or 
years) shall be reduced in the same proportion that the amount included 
in gross income under a claim of right was reduced.
    (iii) The determination of the amount of the exclusion from gross 
income of the prior taxable year shall be

[[Page 809]]

made without regard to the capital loss limitation contained in section 
1211 applicable in computing taxable income for the current taxable 
year. The amount of the exclusion from gross income in a prior taxable 
year (or years) shall not exceed the amount which would, but for the 
application of section 1211, be allowable as a deduction in the taxable 
year of restoration.
    (iv) The rule provided in subdivision (iii) of this subparagraph may 
be illustrated as follows:

    Example: For the taxable year 1952, an individual taxpayer had long-
term capital gains of $50,000 and long-term capital losses of $10,000, a 
net long-term gain of $40,000. He also had other income of $5,000. In 
1956, taxpayer restored the $50,000 of long-term gain. He had no capital 
gains or losses in 1956 but had other income of $5,000. If his tax 
liability for 1956, the taxable year of restoration, is computed by 
taking the deduction into account, the taxpayer would be entitled to a 
deduction under section 1211 of only $1,000 on account of the capital 
loss. However, if the taxpayer computes his tax under section 1341(a)(5) 
and paragraph (b)(1)(ii) of this section, it is necessary to determine 
the decrease in tax for 1952. In such a determination, $50,000 is to be 
excluded from gross income for that year, resulting in a net capital 
loss for that year of $10,000, and a capital loss deduction of $1,000 
under section 117(d) of the Internal Revenue Code of 1939 (corresponding 
to section 1211 of the Internal Revenue Code of 1954) with carryover 
privileges. The difference between the tax previously determined and the 
tax as recomputed after such exclusion for the years affected will be 
the amount of the decrease.

    (3) Determination of amount of deduction attributable to prior 
taxable years. (i) If the deduction otherwise allowable for the taxable 
year relates to income included in gross income under a claim of right 
in more than one prior taxable year and the amount attributable to each 
such prior taxable year cannot be readily identified, then the portion 
attributable to each such prior taxable year shall be that proportion of 
the deduction otherwise allowable for the taxable year which the amount 
of the income included under the claim of right in question for the 
prior taxable year bears to the total of all such income included under 
the claim of right for all such prior taxable years.
    (ii) The rule provided in subdivision (i) of this subparagraph may 
be illustrated as follows:

    Example: Under a claim of right, A included in his gross income over 
a period of three taxable years an aggregate of $9,000 for services to a 
certain employer, in amounts as follows: $2,000 for taxable year 1952, 
$4,000 for taxable year 1953, and $3,000 for taxable year 1954. In 1955 
it is established that A must restore $6,750 of these amounts to his 
employer, and that A is entitled to a deduction of this amount in the 
taxable year 1955. The amount of the deduction attributable to each of 
the prior taxable years cannot be identified. Accordingly, the amount of 
the deduction attributable to each prior taxable year is:

1952--$6,750 x $2,000 / $9,000 = $1,500
1953--$6,750 x $4,000 / $9,000 = $3,000
1954--$6,750 x $3,000 / $9,000 = $2,250

    (4) Computation of amount of decrease in tax. (i) In computing the 
amount of decrease in tax for a prior taxable year (or years) resulting 
from the exclusion from gross income of the income included under a 
claim of right, there must first be ascertained the amount of tax 
previously determined for the taxpayer for such prior taxable year (or 
years). The tax previously determined shall be the sum of the amounts 
shown by the taxpayer on his return or returns, plus any amounts which 
have been previously assessed (or collected without assessment) as 
deficiencies or which appropriately should be assessed or collected, 
reduced by the amount of any refunds or credits which have previously 
been made or which appropriately should be made. For taxable years 
beginning after December 31, 1961, if the provisions of section 
1341(b)(4)(B) are applicable, the tax previously determined shall 
include the tax for the taxable year of restoration computed without 
taking the deduction for the amount of the restoration into account. 
After the tax previously determined has been ascertained, a 
recomputation must then be made to determine the decrease in tax, if 
any, resulting from the exclusion from gross income of all or that 
portion of the income included under a claim of right to which the 
deduction otherwise allowable in the taxable year is attributable.
    (ii) No item other than the exclusion of the income previously 
included

[[Page 810]]

under a claim of right shall be considered in computing the amount of 
decrease in tax if reconsideration of such other item is prevented by 
the operation of any provision of the internal revenue laws or any other 
rule of law. However, if the amounts of other items in the return are 
dependent upon the amount of adjusted gross income, taxable income, or 
net income (such as charitable contributions, foreign tax credit, 
deductions for depletion, and net operating loss), appropriate 
adjustment shall be made as part of the computation of the decrease in 
tax. For the purpose of determining the decrease in tax for the prior 
taxable year (or years) which would result from the exclusion from gross 
income of the item included under a claim of right, the exclusion of 
such item shall be given effect not only in the prior taxable year in 
which it was included in gross income but in all other prior taxable 
years (including the taxable year of restoration if such year begins 
after December 31, 1961, and section 1341(b)(4)(B) applies, see 
subparagraph (1)(ii) of this paragraph) affected by the inclusion of the 
item (for example, prior taxable years affected by a net operating loss 
carryback or carryover or capital loss carryover).
    (iii) The rules provided in this subparagraph may be illustrated as 
follows:

    Example 1. For the taxable year 1954, a corporation had taxable 
income of $35,000, on which it paid a tax of $12,700. Included in gross 
income for the year was $20,000 received under a claim of right as 
royalties. In 1957, the corporation is required to return $10,000 of the 
royalties. It otherwise has taxable income in 1957 of $5,000, so that 
without the application of section 1341 it has a net operating loss of 
$5,000 in that year. Facts also come to light in 1957 which entitle the 
corporation to an additional deduction of $5,000 for 1954. When a 
computation is made under paragraph (b)(1)(i) of this section, the 
corporation has no tax for the taxable year 1957. When a computation is 
made under paragraph (b)(1)(ii) of this section, the tax for 1957, 
without taking the restoration into account, is $1,500, based on a 
taxable income of $5,000. The decrease in tax for 1954 is computed as 
follows:

Tax shown on return for 1954................................     $12,700
                                                 =============
Taxable income for 1954 upon which tax shown on return was        35,000
 based......................................................
Less: Additional deduction (on account of which credit or          5,000
 refund could be made)......................................
                                                 -------------
    Total...................................................      30,000
Tax on $30,000 (adjusted taxable income for 1954)...........      10,100
                                                 =============
Tax on $30,000 (adjusted taxable income for 1954)...........      10,100
Taxable income for 1954, as adjusted............     $30,000
Less exclusion of amount restored...............      10,000
                                                 ------------
    Taxable income for 1954 by applying               20,000
     paragraph (b)(1)(ii) of this section.......
Tax on $20,000..............................................       6,000
                                                 -------------
Decrease in tax for 1954 by applying paragraph (b)(1)(ii) of      $4,100
 this section...............................................
Tax for 1957 without taking the restoration into account....       1,500
                                                 -------------
Amount by which decrease exceeds the tax for 1957 computed        $2,600
 without taking restoration into account....................
 

    (The $2,600 is treated as having been paid on the last day 
prescribed by law for the payment of the tax for 1957 and is available 
as a refund. In addition the taxpayer has made an overpayment of $2,600 
($12,700 less $10,000) for 1954 because of the additional deduction of 
$5,000.)
    Example 2. Assume the same facts as in example (1) except that, 
instead of the corporation being entitled to an additional deduction of 
$5,000 for 1954, it is determined that the corporation failed to include 
an item of $5,000 in gross income for that year. The decrease in tax for 
1954 is computed as follows:

Tax shown on return for 1954................................     $12,700
                                                 =============
Taxable income for 1954 upon which tax shown on return was        35,000
 based......................................................
Plus: Additional income (on account of which deficiency           $5,000
 assessment could be made)..................................
                                                 -------------
    Total...................................................      40,000
Tax on $40,000 (adjusted taxable income for 1954)...........      15,300
                                                 =============
Tax on $40,000 (adjusted taxable income for 1954)...........      15,300
Taxable income for 1954 as adjusted.............     $40,000
Less exclusion of amount restored...............      10,000
                                                 ------------
Taxable income for 1954 by applying paragraph         30,000
 (b)(1)(ii) of this section.....................
Tax on $30,000..............................................      10,100
                                                 -------------
Decrease in tax for 1954 by applying paragraph (b)(1)(ii) of       5,200
 this section...............................................
Tax for 1957 without taking the restoration into account....       1,500
                                                 -------------
Amount by which decrease exceeds the tax for 1957 computed        $3,700
 without taking the restoration into account................
 

    (The $3,700 is treated as having been paid on the last day 
prescribed by law for the payment of the tax for 1957 and is available 
as a

[[Page 811]]

refund. In addition the taxpayer has a deficiency of $2,600 ($15,300 
less $12,700) for 1954 because of the additional income of $5,000.)
    Example 3. For the taxable year 1954, a corporation had taxable 
income of $25,000, on which it paid a tax of $7,500. Included in gross 
income for the year was $10,000 received under a claim of right as 
commissions. In 1956, the corporation is required to return $5,000 of 
the commissions. The corporation has a net operating loss of $10,000 for 
1956, excluding the deduction for the $5,000 restored. When a 
computation is made under either paragraph (b)(1)(i) or paragraph 
(b)(1)(ii) of this section, the corporation has no tax for the taxable 
year 1956. The decrease in tax for 1954 is computed as follows:

Tax shown on return for 1954................................      $7,500
                                                 =============
Taxable income for 1954 upon which tax shown on return was        25,000
 based......................................................
Less: Additional deduction (on account of net operating loss      10,000
 carryback from 1956).......................................
                                                 -------------
    Net income as adjusted..................................      15,000
Tax on $15,000 (adjusted taxable income for 1954)...........       4,500
                                                 =============
Tax on $15,000 (adjusted taxable income for 1954)...........       4,500
Taxable income for 1954, as adjusted............     $15,000
Less: exclusion of amount restored..............      $5,000
                                                 ------------
    Taxable income for 1954 by applying               10,000
     paragraph (b)(1)(ii) of this section.......
Tax on $10,000..............................................      $3,000
                                                 -------------
Decrease in tax for 1954 by applying paragraph (b)(1)(ii) of       1,500
 this section...............................................
Tax for 1956 without taking the restoration into account....        None
                                                 -------------
Amount by which decrease exceeds the tax for 1956 computed        $1,500
 without taking the restoration into account................
 


(The $1,500 is treated as having been paid on the last day prescribed by 
law for the payment of the tax for 1956 and is available as a refund. In 
addition, the taxpayer has an overpayment of $3,000 ($7,500 less $4,500) 
for 1954 because of the net operating loss deduction of $10,000.)
    Example 4. For the taxable year 1946 a married man with no 
dependents, who kept his books on the cash receipts and disbursements 
basis, filed a return (claiming two exemptions) disclosing adjusted 
gross income of $42,000, deductions amounting to $12,000, and a net 
income of $30,000. Gross income included among other items, salary in 
the amount of $15,000 and rental income in the amount of $5,000. During 
the taxable year he donated $10,000 to the American Red Cross and in his 
return claimed a deduction of $6,300 on account thereof, representing 
the maximum deduction allowable under the 15-percent limitation imposed 
by section 23(o) of the Internal Revenue Code of 1939 for the year 1946. 
In computing his net income he omitted interest income amounting to 
$6,000 and neglected to take a deduction for interest paid in the amount 
of $4,500. The return disclosed a tax liability of $11,970, which was 
assessed and paid. In 1955, after the expiration of the period of 
limitations upon the assessment of a deficiency or the allowance of a 
refund for 1946, the taxpayer had to restore the $5,000 included in his 
gross income in 1946 as rental income. The amount of the decrease in tax 
for 1946 is $2,467.62, computed as follows:

Tax previously determined for 1946..........................  $11,970.00
                                                 =============
Net income for 1946 upon which tax previously determined was   30,000.00
 based......................................................
Less: Rents included under claim of right...................    5,000.00
                                                 -------------
    Balance.................................................   25,000.00
Adjustment for contributions (add 15 percent of $5,000).....      750.00
                                                 -------------
    Net income as adjusted..................................   25,750.00
Tax on $25,750..............................................    9,502.38
                                                 =============
Amount of decrease in tax for 1946:
  Tax previously determined.................................  $11,970.00
  Tax as recomputed.........................................    9,502.38
                                                 -------------
    Decrease in tax.........................................   $2,467.62
 


The recomputation to determine the amount of the decrease in tax for 
1946 does not take into consideration the barred item of $6,000 
representing interest received, which was omitted from gross income, or 
the barred item of $4,500 representing interest paid for which no 
deduction was allowed. See subdivision (ii) of this subparagraph.
    Example 5. (a) Facts. For the taxable year 1959, a corporation 
reporting income on the calendar year basis had taxable income of 
$20,000 on which it paid a tax of $6,000. Included in gross income for 
such year was $100,000 received under a claim of right as royalties. For 
each of its taxable years 1956, 1957, 1958, 1960, 1961, and 1962, the 
corporation had taxable income of $10,000 on which it paid tax of $3,000 
for each year. In 1963, the corporation returns the entire amount of 
$100,000 of the royalties. In such taxable year the corporation has 
taxable income of $25,000 (without taking the deduction of $100,000 into 
account), and has a net operating loss of $75,000 (taking the deduction 
of $100,000 into account). In determining whether section 1341(a)(4) or 
section 1341(a)(5) applies, the corporation will compute the lesser 
amount of tax referred to in section 1341(a) by applying the rules 
provided in section 1341(b)(4).
    (b) Tax under section 1341 (a)(4) and (b)(4)(A). The net operating 
loss of $75,000 for 1963 (taking into account the deduction of $100,000) 
is carried back to the three taxable years (1960, 1961, and 1962) in the 
manner provided under section 172. For purposes of this example it is 
assumed that no modifications under section 172 are necessary. Since the

[[Page 812]]

aggregate taxable income for such three taxable years is only $30,000 
the entire taxable income for such years is eliminated by the carryback, 
and the corporation would be entitled to a refund of the tax for such 
years in the aggregate amount of $9,000. (In addition, the remaining 
$45,000 of the net operating loss for 1963 would be available as a 
carryover to taxable years after the taxable year (1963) to the extent 
and in the manner provided by section 172.)
    (c) Tax under section 1341 (a)(5) and (b)(4)(B). The tax for the 
taxable year (1963) on $25,000 of taxable income (computed without the 
deduction of $100,000) is $7,500. The exclusion of $100,000 from gross 
income for the taxable year 1959 (the year in which the item was 
included) results in a net operating loss of $80,000 for such year 
($20,000 taxable income minus the $100,000 exclusion, no adjustments 
under section 172 being necessary), thus decreasing the tax for such 
year by the entire amount of $6,000 paid. The resulting net operating 
loss of $80,000 for 1959 is available as a carryback to 1956, 1957, and 
1958, and as a carryover to 1960, 1961, 1962, and 1963. For purposes of 
this example it is assumed that no modifications under section 172 are 
necessary. Since the aggregate taxable income for such taxable years is 
$85,000, all except $5,000 of the 1963 taxable income is eliminated by 
such carryback and carryover. The tax on such remaining $5,000 of 
taxable income for 1963 is $1,500, thus decreasing the tax determined 
for such year by $6,000 ($7,500 minus $1,500). Under section 1341 (a)(5) 
and (b)(4)(B), the decrease in tax for the prior taxable years exceeds 
the tax for the taxable year of restoration computed without the 
deduction of the amount of the restoration by $22,500, computed as 
follows:

Tax for taxable year 1963 (on taxable income of     .........     $7,500
 $25,000 without the deduction)...................
Decrease in tax for prior taxable years:
Due to exclusion (1959)...........................     $6,000
Due to net operating loss carryback:
    1956...............................     $3,000
    1957...............................      3,000
    1958...............................      3,000
                                        -----------
                                         .........      9,000
Due to net operating loss carryover:
    1960...............................     $3,000
    1961...............................      3,000
    1962...............................      3,000
    1963...............................      6,000
                                        -----------
                                         .........     15,000
                                         .........       ____     30,000
                                                              ----------
Excess of the decrease in tax for the    .........  .........     22,500
 prior taxable years over the tax for
 taxable year 1963 ($30,000 less $7,500
 tax for the taxable year).............
 

    (d) Application of section 1341(a)(4) or section 1341(a)(5). Since 
the computation under section 1341 (a)(4) and (b)(4)(A) results in an 
available refund of only $9,000 tax for the taxable years to which the 
net operating loss for 1963 is carried back, and since the computation 
under section 1341 (a)(5) and (b)(4)(B) results in an overpayment of 
$22,500, it is determined that section 1341(a)(5) applies. Accordingly, 
the $22,500 is treated as having been paid on the last day prescribed by 
law for the payment of tax for 1963 and is available as a refund.

    (e) Method of accounting. The provisions of section 1341 and this 
section shall be applicable in the case of a taxpayer on the cash 
receipts and disbursements method of accounting only to the taxable year 
in which the item of income included in a prior year (or years) under a 
claim of right is actually repaid. However, in the case of a taxpayer on 
the cash receipts and disbursements method of accounting who 
constructively received an item of income under a claim of right and 
included such item of income in gross income in a prior year (or years), 
the provisions of section 1341 and this section shall be applicable to 
the taxable year in which the taxpayer is required to relinquish his 
right to receive such item of income. Such provisions shall be 
applicable in the case of other taxpayers only to the taxable year which 
is the proper taxable year (under the method of accounting used by the 
taxpayer in computing taxable income) for taking into account the 
deduction resulting from the restoration of the item of income included 
in a prior year (or years) under a claim of right. For example, if the 
taxpayer is on an accrual method of accounting, the provisions of this 
section shall apply to the year in which the obligation properly accrues 
for the repayment of the item included under a claim of right.
    (f) Inventory items, stock in trade, and property held primarily for 
sale in the ordinary course of trade or business. (1) Except for amounts 
specified in subparagraphs (2) and (3) of this paragraph, the provisions 
of section 1341 and this section do not apply to deductions attributable 
to items which were included in gross income by reason of the sale or 
other disposition of stock in trade of the taxpayer (or other property 
of a kind which would properly have been

[[Page 813]]

included in the inventory of the taxpayer if on hand at the close of the 
prior taxable year) or property held by the taxpayer primarily for sale 
to customers in the ordinary course of the taxpayer's trade or business. 
This section is, therefore, not applicable to sales returns and 
allowances and similar items.
    (2)(i) In the case of taxable years beginning after December 31, 
1957, the provisions of section 1341 and this section apply to 
deductions which arise out of refunds or repayments with respect to 
rates made by a regulated public utility, as defined in section 
7701(a)(33) without regard to the limitation contained in the last two 
sentences thereof (for taxable years beginning before January 1, 1964, 
as defined in section 1503(c) (1) or (3) and paragraph (g) of Sec.  
1.1502-2A (as contained in the 26 CFR edition revised as of April 1, 
1996)), if such refunds or repayments are required to be made by the 
Government, political subdivision, agency, or instrumentality referred 
to in such section, or are required to be made by an order of a court, 
or are made in settlement of litigation or under threat or imminence of 
litigation. Thus, deductions attributable to refunds of charges for the 
sale of natural gas under rates approved temporarily by a proper 
governmental authority are, in the case of taxable years beginning after 
December 31, 1957, eligible for the benefits of section 1341 and this 
section, if such refunds are required by the governmental authority, or 
by an order of a court, or are made in settlement of litigation or under 
threat or imminence of litigation.
    (ii) In the case of taxable years beginning before January 1, 1958, 
the provisions of section 1341 and this section apply to deductions 
which arise out of refunds or repayments (whether or not with respect to 
rates) made by a regulated public utility, as defined in section 
7701(a)(33) without regard to the limitation contained in the last two 
sentences thereof (for taxable years beginning before January 1, 1964, 
as defined in section 1503(c) (1) or (3) and paragraph (g) of Sec.  
1.1502-2A), if such refunds or repayments are required to be made by the 
Government, political subdivision, agency, or instrumentality referred 
to in such section. Thus, in the case of taxable years beginning before 
January 1, 1958, deductions attributable to refunds or repayments may be 
eligible for the benefits of section 1341 and this section, even though 
such refunds or repayments are not with respect to rates. On the other 
hand, in the case of such taxable years, section 1341 and this section 
do not apply to any deduction which arises out of a refund or repayment 
(whether or not with respect to rates) which is required to be made by 
an order of a court, or which is made in settlement of litigation or 
under threat or imminence of litigation.
    (3) The provisions of section 1341 and this section apply to a 
deduction which arises out of a payment or repayment made pursuant to a 
price redetermination provision in a subcontract:
    (i) If such subcontract was entered into before January 1, 1958, 
between persons other than those bearing a relationship set forth in 
section 267(b);
    (ii) If such subcontract is subject to statutory renegotiation; and
    (iii) If section 1481 (relating to mitigation of effect of 
renegotiation of Government contracts) does not apply to such payment or 
repayment solely because such payment or repayment is not paid or repaid 
to the United States or any agency thereof.

Thus, a taxpayer who enters into a subcontract to furnish items to a 
prime contractor with the United States may, pursuant to a price 
redetermination provision in the subcontract, be required to refund an 
amount to the prime contractor or to another subcontractor. Since the 
refund would be made directly to the prime contractor or to another 
subcontractor, and not directly to the United States, the taxpayer would 
be unable to avail himself of the benefits of section 1481. However, the 
provisions of section 1341 and this section will apply in such a case, 
if the conditions set forth in subdivisions (i), (ii), and (iii) of this 
subparagraph are met. For provisions relating to the mitigation of the 
effect of a redetermination of price with respect to subcontracts 
entered into after December 31, 1957, when repayment is made to a party 
other than the United States or any agency thereof, see section 1482.

[[Page 814]]

    (g) Bad debts. The provisions of sections 1341 and this section do 
not apply to deductions attributable to bad debts.
    (h) Legal fees and other expenses. Section 1341 and this section do 
not apply to legal fees or other expenses incurred by a taxpayer in 
contesting the restoration of an item previously included in income. 
This rule may be illustrated by the following example:

    Example: A sold his personal residence to B in a prior taxable year 
and realized a capital gain on the sale. C claimed that under an 
agreement with A he was entitled to a 5-percent share of the purchase 
price since he brought the parties together and was instrumental in 
closing the sale. A rejected C's demand and included the entire amount 
of the capital gain in gross income for the year of sale. C instituted 
action and in the taxable year judgment is rendered against A who pays C 
the amount involved. In addition, A pays legal fees in the taxable year 
which were incurred in the defense of the action. Section 1341 applies 
to the payment of the 5-percent share of the purchase price to C. 
However, the payment of the legal fees, whether or not otherwise 
deductible, does not constitute an item restored for purposes of section 
1341(a) and paragraph (a) of this section.

    (i) Refunds. If the decrease in tax for the prior taxable year (or 
years) determined under section 1341(a)(5)(B) and paragraph (b)(1)(ii) 
of this section exceeds the tax imposed by chapter 1 of the Code for the 
taxable year computed without the deduction, and for taxable years 
beginning after December 31, 1961, if such excess is greater than the 
decrease in tax for the taxable year (or years) to which the net 
operating loss described in section 1341(b)(4)(A) and paragraph 
(b)(1)(iii) of this section is carried back, such excess shall be 
considered to be a payment of tax for the taxable year of restoration. 
Such payment is deemed to have been made on the last day prescribed by 
law for the payment of tax for the taxable year and shall be refunded or 
credited in the same manner as if it were an overpayment of tax for such 
taxable year. However, no interest shall be allowed or paid if such an 
excess results from the application of section 1341(a)(5)(B) in the case 
of a deduction described in paragraph (f)(3) of this section (relating 
to payments or repayments pursuant to price redetermination). If the tax 
for the taxable year of restoration is computed under section 1341(a)(4) 
and results in a decrease in tax for the taxable year (or years) to 
which a net operating loss described in section 1341(b)(4)(A) is carried 
back, see paragraph (b)(1)(iii) of this section.

[T.D. 6500, 25 FR 12049, Nov. 26, 1960, as amended by T.D. 6617, 27 FR 
10824, Nov. 7, 1962; T.D. 6747, 29 FR 9790, July 21, 1964; T.D. 7244, 37 
FR 28897, Dec. 30, 1972; T.D. 7564, 43 FR 40496, Sept. 12, 1978; T.D. 
8677, 61 FR 33323, June 27, 1996]



Sec.  1.1342-1  Computation of tax where taxpayer recovers substantial amount 
held by another under claim of right; effective date.

    Section 1342 shall apply with respect to taxable years beginning 
after December 31, 1954.

[T.D. 6500, 25 FR 12052, Nov. 26, 1960]

                            Other Limitations



Sec.  1.1346-1  Recovery of unconstitutional taxes.

    (a) In general. (1) A taxpayer who recovers unconstitutional Federal 
taxes which were paid or accrued and for which a deduction was allowed 
in a prior taxable year may elect, as provided in paragraph (b) of this 
section, to exclude the income (exclusive of interest) attributable to 
such recovery from his gross income in the taxable year of recovery. Any 
such exclusion of income is subject to the requirements of section 1346 
and this section.
    (2) If a taxpayer elects to receive the benefits of section 1346, 
the income (exclusive of interest) attributable to the recovery of the 
unconstitutional Federal tax will be treated as an offset to the 
deduction allowed therefor in a prior taxable year (or years). The 
taxpayer's return for the prior taxable year (or years) with respect to 
which the statutory period for the assessment of a deficiency has 
expired will be opened only for the purpose of reducing the deduction 
allowed for the unconstitutional Federal tax and assessing the resulting 
deficiency or deficiencies, if any. (An election under section 1346 may 
be made only if the taxpayer consents in writing to such assessment. See 
paragraph (b) of this section.) No other adjustment will be allowed.

[[Page 815]]

    (3) If the disallowance of the deduction allowed in respect of a 
prior taxable year results in a deficiency for that year, the deficiency 
will be assessed against the taxpayer within the period agreed upon 
between the taxpayer and the district director with respect to the 
taxable year of the prior deduction, even though the statutory period 
for the assessment may have expired prior to the filing of the consent.
    (4) If a taxpayer does not elect under the provisions of section 
1346 and this section to exclude the tax recovered from gross income in 
the taxable year of recovery, the tax recovered shall, from the 
standpoint of its inclusion in or exclusion from gross income, be 
governed by the provisions of section 111.
    (b) Manner of making election. (1) The election provided for in 
paragraph (a) of this section shall be made by the taxpayer filing a 
statement in writing that he elects to treat the deduction allowed in a 
prior taxable year for the unconstitutional tax as not having been 
allowable for such taxable year. Such a statement must be filed with the 
taxpayer's return for the taxable year in which the recovery of the 
unconstitutional tax or taxes occurs. No other method of making the 
election is permitted. The statement of election must contain a 
description of the tax recovered, the date of recovery, the taxable year 
in which paid or accrued, and the taxable year for which the deduction 
was allowed. The statement of election must also contain a statement 
signifying the taxpayer's consent (i) to treat the deduction or portion 
thereof allowed in a prior year with respect to the unconstitutional tax 
as not allowable for that year and (ii) to the assessment, in respect of 
the taxable year for which the deduction was allowed, of any deficiency, 
together with interest thereon as provided by law, resulting from 
disallowance of the deduction or portion thereof, even though the 
statutory period for the assessment of any such deficiency may have 
expired before the filing of such consent.
    (2) The term recovery, as used in this section, includes not only 
refund or credit of taxes previously paid, but also the cancellation of 
a purported tax liability which was accrued and deducted for a prior 
taxable year but never actually paid.

[T.D. 6500, 25 FR 12052, Nov. 26, 1960]



Sec.  1.1347-1  Tax on certain amounts received from the United States.

    (a) In the case of an amount (other than interest) received from the 
United States by an individual under a claim involving acquisition of 
property and remaining unpaid for more than 15 years, the tax (or, in 
the case of taxable years beginning before January 1, 1971, the surtax) 
imposed by section 1 attributable to such amount shall not exceed 33 
percent of the amount (other than interest) so received (30 percent for 
taxable years beginning before January 1, 1971). For the purpose of 
section 1347 and this section, such amount shall not include any amount 
received from the United States which constitutes interest, whether such 
interest was included in the claim or in any judgment thereon or has 
accrued on such judgment. Section 1347 and this section shall only apply 
with respect to amounts received under a claim filed with the United 
States before January 1, 1958.
    (b) To determine the application of section 1347 and this section to 
a particular amount, the taxpayer shall first compute the tax (or, in 
the case of taxable years beginning before January 1, 1971, the surtax) 
imposed by section 1 upon his entire taxable income, including the 
amount specified in paragraph (a) of this section, without regard to the 
limitation on tax provided in section 1347. The proportion of the tax 
(or surtax), so computed, indicated by the ratio which the taxpayer's 
taxable income attributable to the amount specified in paragraph (a) of 
this section, computed as prescribed in paragraph (c) of this section, 
bears to his total taxable income, is the portion of the tax (or surtax) 
attributable to such amount. If this portion of the tax (or surtax) 
exceeds 33 percent (30 percent for taxable years beginning before 
January 1, 1971) of the amount specified in paragraph (a) of this 
section, that portion of the tax (or surtax) shall be reduced to 33 
percent (or 30 percent) of such amount.
    (c) In determining the portion of the taxable income attributable to 
any

[[Page 816]]

amount specified in paragraph (a) of this section, the taxpayer shall 
allocate to such amount received and to the gross income derived from 
all other sources, the expenses, losses, and other deductions properly 
attributable thereto, and shall apply any general expenses, losses, and 
other deductions (which cannot be properly apportioned otherwise) 
ratably to the gross income from all sources. The amount specified in 
paragraph (a) of this section, less the deductions properly attributable 
thereto and less its proportion of any general deductions, shall be the 
taxable income attributable to such amount. The taxpayer shall submit 
with his return a statement fully explaining the manner in which such 
expenses, losses, and deductions are allocated or apportioned.

[T.D. 6500, 25 FR 12052, Nov. 26, 1960, as amended by T.D. 7117, 36 FR 
9422, May 25, 1971; 36 FR 11434, June 12, 1971]



Sec.  1.1348-1  Fifty-percent maximum tax on earned income.

    Section 1348 provides generally that for taxable years beginning 
after December 31, 1971, the maximum tax rate applicable to the earned 
taxable income of an individual, estate, or trust is not to exceed 50 
percent. In the case of an estate or trust, earned income includes only 
amounts which constitute income in respect of a decedent within Sec.  
1.1348-3(a)(4). For taxable years beginning after December 31, 1970, and 
before January 1, 1972, the maximum rate is 60 percent. Section 1348 
does not apply if the taxpayer chooses the benefits of income averaging 
under sections 1301 through 1305. Section 1348 does not apply to a 
married individual who does not file a joint return with his spouse for 
the taxable year. For purposes of section 1348, an individual's marital 
status shall be determined under section 153 and the regulations 
thereunder.

[T.D. 7446, 41 FR 55337, Dec. 20, 1976]



Sec.  1.1348-2  Computation of the fifty-percent maximum tax on earned income.

    (a) Computation of tax for taxable years beginning after 1971. If, 
for a taxable year beginning after December 31, 1971, an individual has 
earned taxable income (as defined in paragraph (d) of this section) 
which exceeds the applicable amount in column (1) of table A, the tax 
imposed by section 1 for such year shall be the sum of:
    (1) The applicable amount in column (2) of table A.
    (2) 50 percent of the amount by which earned taxable income exceeds 
the applicable amount in column (1) of table A, and
    (3) The amount by which the tax imposed by chapter 1 on the entire 
taxable income exceeds a tax so computed on earned taxable income, such 
computations to be made without regard to section 1348 or 1301.

                                 Table A
------------------------------------------------------------------------
                       Status                            (1)       (2)
------------------------------------------------------------------------
Married individuals filing joint returns and           $52,000   $18,060
 surviving spouses..................................
Heads of households.................................    38,000    12,240
Unmarried individuals other than surviving spouses      38,000    13,290
 and heads of households............................
Trusts and estates..................................    26,000     9,030
------------------------------------------------------------------------

    (b) Computation of tax for taxable years beginning in 1971. If, for 
a taxable year beginning after December 31, 1970, and before January 1, 
1972, an individual has earned taxable income (as defined in paragraph 
(d) of this section) which exceeds the applicable amount in column (1) 
of table B, the tax imposed by section 1 for such year shall be the sum 
of:
    (1) The applicable amount in column (2) of table B,
    (2) 60 percent of the amount by which earned taxable income exceeds 
the applicable amount in column (1) of table B, and
    (3) The amount by which the tax imposed by chapter 1 on the entire 
taxable income exceeds a tax so computed on earned taxable income, such 
computations to be made without regard to section 1348 or 1301.

                                 Table B
------------------------------------------------------------------------
                      Status                           (1)        (2)
------------------------------------------------------------------------
Married individuals filing joint returns and         $100,000    $45,180
 surviving spouses................................
Heads of households...............................     70,000     30,260
Unmarried individuals other than surviving spouses     50,000     20,190
 and heads of households..........................
Trusts and estates................................     50,000     22,590
------------------------------------------------------------------------


[[Page 817]]

    (c) Short taxable periods. If a taxpayer is required under section 
443(a)(1) to make a return for a period of less than 12 months, the tax 
under section 1348 and this section shall be determined by placing his 
taxable income, earned net income, adjusted gross income, and items of 
tax preference on an annual basis in accordance with section 443 and the 
regulations thereunder. If a taxable year referred to in paragraph 
(d)(3)(i)(a) of this section is a period of less than 12 months for 
which a return is required under section 443(a)(1), the average 
described in such paragraph shall also be determined by placing the 
items of tax preference for such period on an annual basis in accordance 
with section 443 and the regulations thereunder. If a return for a 
period of less than 12 months is required under section 443(a)(3) for 
any taxable year referred to in paragraph (d)(3)(i)(a) of this section, 
section 1348 and this section shall not apply unless such period is 
reopened by the taxpayer as provided by section 6851(b).
    (d) Earned taxable income--(1) In general. For purposes of section 
1348 and this section, the term earned taxable income means the excess 
of (i) the portion of taxable income which, under subparagraph (2) of 
this paragraph, is attributable to earned net income over (ii) the tax 
preference offset (as defined in subparagraph (3) of this paragraph). 
For purposes of computing the alternative tax under section 1201, earned 
taxable income shall not exceed the excess of taxable income over 50 
percent of the net capital gain (net section 1201 gain for taxable years 
beginning before January 1, 1977).
    (2) Taxable income attributable to earned net income. The portion of 
taxable income which is attributable to earned net income shall be 
determined by multiplying taxable income by a fraction (not exceeding 
one), the numerator of which is earned net income, and the denominator 
of which is adjusted gross income. For purposes of this subparagraph the 
term earned net income means the excess of the total of earned income 
(as defined in Sec.  1.1343-(a)) over the total of any deductions which 
are required to be taken into account under section 62 in determining 
adjusted gross income and are properly allocable to or chargeable 
against earned income. Deductions are properly allocable to or 
chargeable against earned income if, and to the extent that, they are 
allowable in respect of expenses paid or incurred in connection with the 
production of earned income and have not been taken into account in 
determining the net profits of a trade or business in which both 
personal services and capital are material income producing factors (as 
defined in Sec.  1.1348-3(a)(3)). Except as otherwise provided, 
deductions properly allocable to or chargeable against earned income 
include:
    (i) Deductions attributable to a trade or business from which earned 
income is derived, except that if less than all the gross income from a 
trade or business constitutes earned income, only a ratable portion of 
the deductions attributable to such trade or business is allowable in 
respect of expenses paid or incurred in connection with the production 
of earned income,
    (ii) Deductions consisting of expenses paid or incurred in 
connection with the performance of services as an employee,
    (iii) The deductions described in section 62(7) and allowable by 
sections 404 and 405(c),
    (iv) The deduction allowable by section 217,
    (v) The deduction allowable by section 1379(b)(3), and
    (vi) A net operating loss deduction to the extent that the net 
operating losses carried to the taxable year are properly allocable to 
or chargeable against earned income.

A net operating loss carried to the taxable year is properly allocable 
to or chargeable against earned income in such year to the extent of the 
excess (if any) of the deductions for the loss year which are properly 
allocable to or chargeable against earned income and which are allowable 
under section 172(d) in determining a net operating loss, over the 
earned income for the loss year. If the excess described in the 
preceding sentence is less than the entire net operating loss, such 
excess and the balance of such loss shall be deemed to reduce taxable 
income ratably for any taxable year to which such loss may be carried. 
See examples (3)

[[Page 818]]

and (4) in subparagraph (4) of this paragraph.
    (3) Tax preference offset. (i) For purposes of subparagraph (1) of 
this paragraph, the tax preference offset is the amount by which the 
greater of:
    (A) The average of the taxpayer's items of tax preference for the 
taxable year and the four preceding taxable years, or
    (B) The taxpayer's items of tax preference for the taxable year,

exceeds $30,000.
    (ii) The items of tax preference to be taken into account under 
subdivision (i) of this subparagraph for any taxable year shall be those 
items of tax preference referred to in section 57(a) and the regulations 
thereunder for the taxable year, but excluding any amount not taken into 
account in computing the tax under section 56(a) and the regulations 
thereunder for such taxable year. The items of tax preference to be 
taken into account by an individual for any taxable year in which such 
individual is or was a nonresident alien shall not include items of tax 
preference which are not effectively connected with the conduct of a 
trade or business within the United States.
    (iii) Taxable years ending before January 1, 1970 shall not be 
included in computing the average described in subdivision (i)(A) of 
this subparagraph. Thus, for example, the tax preference offset for a 
taxable year ending on December 31, 1973, is the amount by which the 
average of the taxpayer's items of tax preference for 1970, 1971, 1972, 
and 1973, or the taxpayer's items of tax preference for 1973, whichever 
is greater, exceeds $30,000. Taxable years during which the taxpayer was 
not in existence shall not be included in computing the average 
described in subdivision (i)(A) of this subparagraph. A fractional part 
of a year which is treated as a taxable year under sections 441(b) and 
7701(a)(23) shall be treated as a taxable year for purposes of this 
section for special rules if a taxable year referred to in subdivision 
(i)(A) of this subparagraph is a period of less than 12 months for which 
a return is required under section 443(a)(1).
    (iv) If for the current taxable year the taxpayer and his spouse (or 
the estate of such spouse) file a joint return together, the items of 
tax preference for a preceding taxable year taken into account under 
subdivision (i)(A) of this subparagraph shall be the sum of the items of 
tax preference of the taxpayer and his spouse for such preceding year 
even though a joint return was not, or could not have been, filed by the 
taxpayer and such spouse for such preceding taxable year. If for the 
current taxable year the taxpayer (A) is no longer married to a spouse 
to whom he was married for a preceding taxable year taken into account 
under subdivision (i)(A) of this subparagraph and files a return as a 
single person, head of household, or surviving spouse for such current 
taxable year, or (B) is married to a spouse other than the spouse to 
whom he was married for a preceding taxable year taken into account 
under subdivision (i)(A) of this subparagraph, his items of tax 
preference shall be computed as if he were not married during such 
preceding taxable year.
    (v) The sum of the items of tax preference of an estate or trust 
shall, for purposes of this paragraph, be apportioned between the estate 
or trust and the beneficiary in the manner and to the extent provided by 
section 58(c)(1) and the regulations thereunder.
    (vi) If an item of gross income in respect of a decedent is 
includible in the gross income of a taxpayer and is treated as earned 
income in the hands of the taxpayer by reason of Sec.  1.1348-3(a)(4), 
the items of tax preference for a taxable year taken into account under 
subdivision (i) of this subparagraph shall be the sum of the taxpayer's 
items of tax preference for such taxable year and the decedent's items 
of tax preference for any taxable year of the decedent (including a 
short taxable year described in section 441(b)(3)) which ends with or 
within such taxable year of the taxpayer. For purposes of this 
subdivision, if a taxpayer (such as the estate of the decedent or a 
testamentary trust created by the decedent) has not been in existence 
for the number of preceding taxable years specified in subdivision 
(i)(A) or (iii) of this subparagraph, the items of tax preference for 
preceding taxable years taken into account shall be the taxpayer's items

[[Page 819]]

of tax preference for each of its preceding taxable years plus the 
decedent's items of tax preference for that number of the most recent 
taxable years of the decedent ending prior to the taxpayer's earliest 
taxable year which, when added to the taxpayer's preceding taxable 
years, equals such number of preceding taxable years specified in 
subdivision (i)(A), or (iii). The increase, if any, in the taxpayer's 
tax preference offset computed under this subdivision shall not exceed 
the amount by which the taxpayer's taxable income attributable to earned 
net income, computed as provided in Sec.  1.1348-2(d)(2) and including 
the item of gross income in respect of a decedent, exceeds the 
taxpayer's taxable income attributable to earned net income computed 
without regard to such item of gross income.
    (4) Illustrations. The provisions of this section may be illustrated 
by the following examples:

    Example 1. (i) H and W, married calendar-year taxpayers filing a 
joint return, have the following items of income, deductions, and tax 
preference for 1976:

(a) Salary........................................   $155,000
(b) Dividends and interest........................     60,000
                                                   -----------
    Total.........................................    215,000
(c) Deductible travel expenses of employee              5,000
 allocable to earned income.......................
                                                   -----------
(d) Adjusted gross income....................................   $210,000
(e) Exemptions and itemized deductions.......................     38,000
                                                   ------------
(f) Taxable income...........................................    172,000
 

    In addition, the taxpayers have tax preference items for 1976 of 
$80,000 attributable to the exercise of a qualified stock option and 
total tax preference items of $300,000 for the years 1972 through 1975. 
Since the items of tax preference for 1976 exceed the average of the 
items of tax preference for the years 1972 through 1976, the tax 
preference offset for 1976 is $50,000 ($80,000-$30,000).
    (ii) H and W have earned taxable income of $72,857 determined in the 
following manner:

(a) Earned income............................................   $155,000
(b) Earned net income ($155,000-$5,000)......................    150,000
(c) Taxable income...........................................    172,000
(d) Adjusted gross income....................................    210,000
(e) Taxable income attributable to earned net
 income:
  $172,000(c) x ($150,000(b) / $210,000(d)........   $122,857
(f) Tax preference offset.........................     50,000
                                                   -----------
(g) Earned taxable income....................................     72,857
 

    (iii) The tax imposed by section 1 is $90,938, determined pursuant 
to section 1348 in the following manner:

(a) Applicable amount from col. (2) of table A, Sec.   1.1348-   $18,060
 2(a).........................................................
(b) 50 pct of amount by which $72,857 (earned taxable income)     10,429
 exceeds $52,000 (applicable amount from col. (1) of table A,
 Sec.   1.1348-2(a))..........................................
(c) Tax computed under section 1 on $172,000           $91,740
 (taxable income)...................................
(d) Tax computed under section 1 on $72,857 (earned     29,291
 taxable income)....................................
                                                     ----------
(e) Item (c) minus item (d)...................................   962,449
(f) Tax (total of items (a), (b), and (e))....................    90,938
 

    Example 2. (i) H and W, married calendar-year taxpayers filing a 
joint return, have the following items of income, deductions, and tax 
preference for 1976:

(a) Salary........................................   $210,000
(b) Dividends and interest........................     20,000
(c) Net long-term capital gains...................    100,000
                                                   -----------
    Total.........................................    330,000
(d) Sec. 1202 deduction (\1/2\ of net long-term        50,000
 capital gains)...................................
                                                   -----------
(e) Adjusted gross income....................................   $280,000
(f) Exemptions and itemized deductions.......................     40,000
                                                   ------------
(g) Taxable income...........................................    240,000
 

    The taxpayers' tax preference item for 1976 is one-half of the net 
long-term capital gains of $100,000, or $50,000. The taxpayers have no 
items of tax preference for the years 1972 through 1975. Accordingly, 
their tax preference offset for 1976 is $20,000 ($50,000-$30,000).
    (ii) H and W have earned taxable income of $160,000, determined in 
the following manner:

(a) Earned net income........................................   $210,000
(b) Taxable income...........................................    240,000
(c) Adjusted gross income....................................    280,000
(d) Taxable income attributable to earned net income:
    $240,000(b) x ($210,000(a) / $280,000(c)).....    180,000
(e) Tax preference offset.........................    $20,000
                                                   -----------
(f) Earned taxable income....................................   $160,000
 

    (iii) The tax imposed by section 1 is $122,560, determined pursuant 
to section 1348 in the following manner:

(a) Applicable amount from col. (2) of table A, Sec.   1.1348-   $18,060
 2(a)........................................................
(b) 50 pct of amount by which $160,000 (earned taxable            54,000
 income) exceeds $52,000 (applicable amount from col. (1) of
 table A, Sec.   1.1348-2(a))................................
(c) Tax computed under section 1201(b) on $240,000
 (taxable income):
  (1) Tax under section 1201(b)(1) (tax under        $104,080
   section 1 on $190,000 (taxable income excluding
   capital gains))................................
  (2) Tax under section 1201(b)(2) (25 pct of          12,500
   subsection (d) gain of $50,000)................

[[Page 820]]

 
  (3) Tax under section 1201(b)(3) (tax under          17,500
   section 1 on $240,000 (taxable income) less tax
   under section 1 on $215,000 (amount subject to
   tax under section 1201(b)(1) plus 50 pct of
   subsection (d) gain)) ($138,980-$121,480)......
                                                   -----------
    Total.........................................    134,080
(d) Tax computed under section 1 on $160,000           83,580
 (earned taxable income)..........................
                                                   -----------
(e) Item (c) through item (d)................................     50,500
                                                   ------------
(f) Tax (total of items (a), (b), and (e))...................   $122,560
 

    Example 3. (i) A, an unmarried calendar year taxpayer engaged in the 
practice of law, has the following items of income and deductions for 
1973 and 1976:

------------------------------------------------------------------------
                                                       1973       1976
------------------------------------------------------------------------
Gross income from law practice....................   $240,000   $100,000
Dividends.........................................     60,000     20,000
Expense paid in law practice......................     50,000    160,000
Investment interest...............................     30,000     10,000
Casualty loss on personal residence (amount in excess of          50,000
 $100).......................................................
------------------------------------------------------------------------

    (ii) For 1976, A's deductions exceed his gross income, and his 
taxable income is therefore zero. In addition, A has a net operating 
loss of $100,000 (i.e., the excess of his deductions of $220,000 over 
his gross income of $120,000), which may be carried back to 1973. In 
computing his taxable income and earned taxable income for 1973, $60,000 
(i.e., the excess of the expenses paid in A's law practice of $160,000, 
over his gross income from his law practice of $100,000) of the net 
operating loss deduction is properly allocable to or chargeable against 
earned income.
    (iii) A's recomputed taxable income and earned taxable income for 
1973 are $119,250 and $103,350 respectively, determined in the following 
manner:

Gross income ($240,000 + $60,000)............................   $300,000
Adjusted gross income ($300,000 - $50,000 - $100,000)........    150,000
Taxable income ($150,000 - $30,000 - $750)...................    119,250
Earned net income ($240,000 - $50,000 - $60,000).............    130,000
Earned taxable income ($130,000 / $150,000 x $119,250).......   $103,350
 

    Example 4. The facts are the same as in example (3) except that A's 
gross income from his law practice for 1973 is $40,000. Thus, for 1973, 
A's deductions (including the net operating loss deduction) exceed his 
gross income, and his recomputed taxable income is therefore zero. The 
taxable income subtracted from the net operating loss to determine the 
carryback to 1974 is $20,000 (i.e., $40,000 + $60,000 - $50,000 - 
$30,000), and thus the net operating loss carryback to 1974 is $20,000 
(i.e., $40,000 + $60,000 - $50,000 - $30,000), and thus the net 
operating loss carryback from 1976 to 1974 is $80,000 (i.e., $100,000 - 
$20,000). Of this amount, $48,000 ($80,000 x [$60,000 (the excess of the 
expenses paid in 1976 in A's law practice over his gross income from his 
law practice) / $100,000 (A's net operating loss for 1976)]) is properly 
allocable to or chargeable against earned income, and must be taken into 
account in recomputing A's taxable income and earned taxable income for 
1974.
    Example 5. A, an unmarried calendar year taxpayer, receives a salary 
of $80,000 from Corporation X in 1975 and also owns and operates a 
laundry in which both his capital and services are material income 
producing factors. A incurs no section 62 expenses with respect to the 
salary income. In 1975 the laundry, a sole proprietorship, has gross 
income of $100,000 and business expenses deductible under section 62 of 
$80,000. A reasonable allowance as compensation for A's personal 
services rendered by him in his laundry business would be $12,000. The 
net profits of the laundry business were $20,000.
    A's earned income from the laundry business is limited to $6,000 (30 
percent of $20,000). A's total earned income is $36,000 ($80,000 + 
$60,000). Since the section 62 deductions of the laundry business have 
already been taken into account in computing net profits, they are not 
again taken into account in computing earned net income. Accordingly, 
A's earned net income for 1975 is $86,000.
    Example 6. The facts are the same as example (5) except that the 
gross income of the laundry is $130,000 and the net profits from the 
laundry are $50,000. A's earned income from the laundry is $12,000. Even 
though the 30-percent-of-net profits limitation has not resulted in a 
reduction of A's earned income from the laundry, the expenses deducted 
in computing net profits do not reduce earned income. Accordingly, both 
the earned income and the earned net income of A for 1975 are $92,000.
    Example 7. The facts are the same as example (5) except that the 
gross income of the laundry is $60,000 and the laundry has a net loss of 
$20,000. A's earned income from the laundry is $12,000. Since the 
laundry does not have net profits, the expenses of the laundry have not 
been taken into account in computing the net profits limitation. 
Accordingly, a ratable portion of deductible expenses of the laundry 
must be allocated to the earned income from the laundry in accordance 
with Sec.  1.1348-2(d)(2); $16,000 of the expenses are allocated to the 
earned income ($12,000/$60,000 x $80,000). A's total earned income for 
1975 is $92,000, and his earned net income is $76,000 ($92,000 minus 
$16,000).

[T.D. 7446, 41 FR 55337, Dec. 20, 1976, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]

[[Page 821]]



Sec.  1.1348-3  Definitions.

    (a) Earned income--(1) In general. (i) For purposes of section 1348 
and the regulations thereunder, the term earned income means any item of 
gross income which is earned income within the meaning of section 
401(c)(2)(C) or 911(b) unless the item constitutes deferred compensation 
as defined in paragraph (b) of this section or is otherwise excluded by 
application of this paragraph. Thus, subject to such exceptions, the 
term includes:
    (A) Wages, salaries, professional fees, bonuses, amounts includible 
in gross income under section 83, commissions on sales or on insurance 
premiums, tips, and other amounts received, actually or constructively, 
as compensation for personal services actually rendered regardless of 
the medium or basis of payment.
    (B) Compensatory payments for personal services made prior to the 
time such services are actually rendered, provided such advance payments 
are not made for a purpose of minimizing Federal income taxes by reason 
of the application of section 1348, and are either customary in the 
particular profession, trade, or business, or are made for a bona fide 
business purpose.
    (C) Prizes and awards in recognition of personal services includible 
in gross income under section 74, amounts includible in gross income 
under section 79 (relating to group-term life insurance purchased for 
employees), and amounts includible in gross income under section 1379(b) 
(relating to contributions to qualified pension plans in the case of 
certain shareholder-employees); and
    (D) Gains (other than gain which is treated as capital gain under 
any provision of chapter 1) and net earnings derived from the sale or 
other disposition of, the transfer of any interest in, or the licensing 
of the use of property (other than good will) by an individual whose 
personal efforts created such property


The term does not include such income as dividends (including an amount 
treated as a dividend by reason of section 1373(b) and Sec.  1.1373-1), 
other distributions of corporate earnings and profits, gambling gains, 
or gains which are treated as capital gains under any provision of 
chapter 1. The term also does not include amounts received for 
refraining from rendering personal services or engaging in competitive 
activity or amounts received as consideration for the cancellation of an 
employment contract.
    (ii) In the case of a nonresident alien individual, earned income 
includes only earned income from sources within the United States which 
is effectively connected with the conduct of a trade or business within 
the United States.
    (2) Earned income and employed assistants. The entire amount 
received as professional fees shall be treated as earned income if the 
taxpayer is engaged in a professional occupation, such as a doctor, 
dentist, lawyer, architect, or accountant, even though he employs 
assistants to perform part or all of the services, provided the patients 
or clients are those of the taxpayer and look to the taxpayer as the 
person responsible for the services performed.
    (3) Earned income from business in which capital is material. (i) If 
an individual is engaged in a trade or business (other than in corporate 
form) in which both personal services and capital are material income-
producing factors, a reasonable allowance as compensation for the 
personal services actually rendered by the individual shall be 
considered earned income, but the total amount which shall be treated as 
the earned income of the individual from such a trade or business shall 
in no case exceed 30 percent of his share of the net profits of such 
trade or business (which share shall include any guaranteed payment (as 
defined by Sec.  1.707-1(c)) received from a partnership). For purpose 
of the preceding sentence, the term net profits of the trade or business 
means the excess of gross income from such trade or business (including 
income from all sources, whether or not subject to Federal income tax, 
and without taking into account any deductions which may be allowable 
under section 1202) over the deductions attributable to such trade or 
business.

[[Page 822]]

    (ii) Whether capital is a material income-producing factor must be 
determined by reference to all the facts of each case. Capital is a 
material income-producing factor if a substantial portion of the gross 
income of the business is attributable to the employment of capital in 
the business, as reflected, for example, by a substantial investment in 
inventories, plant, machinery, or other equipment. In general, capital 
is not a material income-producing factor where gross income of the 
business consists principally of fees, commissions, or other 
compensation for personal services performed by an individual. Thus, the 
practice of his profession by a doctor, dentist, lawyer, architect, or 
accountant will not, as such, be treated as a trade or business in which 
capital is a material income-producing factor even though the 
practitioner may have a substantial capital investment in professional 
equipment or in the physical plant constituting the office from which he 
conducts his practice since his capital investment is regarded as only 
incidental to his professional practice.
    (iii) This subparagraph does not apply to gains and net earnings 
derived from the sale or other disposition of, the transfer of any 
interest in, or the licensing of the use of property by an individual 
whose personal efforts created such property which are, by reason of 
subparagraph (1)(i) of this paragraph, treated as earned income. Thus, 
for example, a research chemist's substantial capital investment in 
laboratory facilities which he uses to produce patentable chemical 
processes from which he derives gains within the meaning of this 
subdivision would not be considered a material income-producing factor.
    (4) Income in respect of a decedent. An item of gross income in 
respect of a decedent includible in the gross income of a person 
described in section described in section 691(a)(1) shall be treated as 
earned income in the hands of such person for purposes of subparagraph 
(1) of this paragraph if such item of gross income would have 
constituted earned income of the decedent had he lived and received such 
amount. See Sec.  1.1348-2(d)(3)(vi) for rules relating to attribution 
of tax preferences by reason of an item of income in respect of a 
decedent.
    (5) Exceptions to definition of earned income. For purposes of 
section 1348 and the regulations thereunder, the term earned income does 
not include:
    (i) Any distribution to which section 72(m)(5), relating to certain 
amounts received by owner-employees from a trust described in section 
401(a) or under a plan described in section 403(a), applies,
    (ii) Any distribution to which section 402(e), relating to the 
treatment of certain total distributions from a trust described in 
section 401(a) or under a plan described in section 403(a), applies,
    (iii) Any distribution to which section 402(a)(2), relating to 
capital gains treatment of certain total distributions from a trust 
described in section 401(a), applies,
    (iv) Any distribution to which section 403(a)(2)(A), relating to 
capital gains treatment for certain distributions under a plan described 
in section 404(a)(2), applies, or
    (v) Any deferred compensation within the meaning of paragraph (b) of 
this section.
    (6) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. A owns and operates an unincorporated laundering and dry 
cleaning business. A, assisted by his employees, devotes his entire time 
and attention to this business. Substantial capital is invested in the 
plant and equipment utilized in the laundering and dry cleaning of 
clothing for A's customers. Although personal services performed by A 
and his employees are a material income-producing factor in A's 
business, the capital investment in plant and equipment is not merely 
incidental to the performance of such services but is, as such, material 
to the production of business income. Therefore, A's laundering and dry 
cleaning business is one in which both personal services and capital are 
material income-producing factors within the meaning of paragraph (a)(3) 
of this section. A may treat as earned income for a taxable year a 
reasonable allowance as compensation for the personal services rendered 
by him in his business, but the amount so treated shall not exceed 30% 
of the net profits of his business for such year.
    Example 2. In his unincorporated business as a real estate broker, 
which he conducts on

[[Page 823]]

a full-time basis, A performs substantial personal services, including 
solicitation of home buyers and sellers, escorting prospective buyers on 
house visits, arranging appraisal, financing, and legal services, and 
other related tasks. In the course of conducting such business, A often 
finances sales of real estate with his own capital, makes all the 
necessary arrangements incident to such financing, and a substantial 
portion of the gross income of the business consists of interest income 
from such financing. Under these facts and circumstances, both personal 
services and capital are material income-producing factors in A's real 
estate business within the meaning of paragraph (a)(3) of this section 
since the financing of real estate sales is an integral part of the 
entire business. Accordingly, A's earned income from his real estate 
business is limited to a reasonable allowance as compensation for the 
personal services A actually renders, but not in excess of 30% of the 
net profits from the business, including the interest income derived 
from financing sales of real estate.
    Example 3. For his taxable year ending on December 31, 1973, A, a 
radiologist, reports fees of $100x for professional services rendered to 
his own patients during 1973. Since 1970, A has maintained his own 
office in a small building that he purchased for $60x. In addition, A 
owns X-ray equipment with an original cost of $300x which he uses in his 
professional practice. The entire $100x of professional fees earned by A 
during 1973 is treated as earned income, notwithstanding that A has a 
substantial capital investment in professional equipment and the office 
from which he conducts his medical practice, because such capital 
investment is only incidental to the rendition of personal services in 
A's professional practice.

    (b) Deferred compensation--(1) In general. For purposes of section 
1348 and the regulations thereunder, the term deferred compensation 
means, except as otherwise provided in subparagraph (2) of this 
paragraph, any compensation which is deferred within the meaning of that 
concept in section 404, including any deferred compensation to which the 
provisions of section 404 and the regulations thereunder apply and any 
other compensation taxation of which is deferred in a manner similar to 
the treatment applicable to deferred compensation to which such 
provisions apply. Thus, the term includes any amounts includable in 
gross income as compensation for personal services pursuant to a plan, 
or method having the effect of a plan, deferring the taxation of such 
payment to a taxable year later than that in which such services were 
rendered. For purposes of section 1348, the term deferred compensation 
is not limited to payments to common-law employees but also includes 
payments to self-employed individuals: nor is it material that no 
deduction is allowable in respect of all or part of such payments or 
that a deduction in respect thereof is allowable under some provision of 
the Code other than section 404. For example, amounts received by a 
retired partner pursuant to a written plan of the partnership of the 
kind described in section 1402(a)(10) constitute deferred compensation 
except as otherwise provided in subparagraph (2) of this paragraph. The 
term deferred compensation, as defined in this paragraph, shall have no 
application to a determination of the deductibility of any amount under 
section 162, 404, or any other provision of the Code.
    (2) Amounts not treated as deferred compensation. Notwithstanding 
the provisions of subparagraph (1) of this paragraph, any amount 
includible in gross income as compensation before the end of the taxable 
year following the first taxable year of the taxpayer in which his right 
to receive such amount is not subject to any requirement or condition 
which would be treated as resulting in a substantial risk of forfeiture 
within the meaning of section 83 and the regulations thereunder does not 
constitute deferred compensation for purposes of section 1348 and the 
regulations thereunder. For purposes of this subparagraph, a fractional 
part of a year which is a taxable year under sections 441(b) and 
7701(a)(23) shall be treated as a taxable year.
    (3) Application to certain compensation--(i) In general. This 
subparagraph provides rules for the application of the principles of 
subparagraphs (1) and (2) of this paragraph to certain types of 
compensation.
    (ii) Pension, etc., plans. (A) In accordance with subparagraph (1) 
of this paragraph, the taxable portion of distributions under a pension, 
annuity, profit-sharing, or stock bonus plan, whether or not such plan 
meets the requirements of section 401(a), or pursuant to a method having 
the effect of such a plan, generally constitutes deferred compensation. 
However, under

[[Page 824]]

subparagraph (2) of this paragraph, such portion constitutes earned 
income if includible in gross income before the end of the taxable year 
following the first taxable year of the taxpayer in which his right to 
receive such amount is not subject to a substantial risk of forfeiture. 
In the case of a distribution under a contributory plan, the preceding 
sentence applies only to that part of the taxable portion of the 
distribution which is attributable to employer contributions to the 
plan. For purposes of the preceding sentence, that part of the taxable 
portion of a distribution which is attributable to employer 
contributions is the amount of such part, multiplied by a fraction, the 
numerator of which is the employer contributions to the plan on behalf 
of the employee (determined in accordance with the principles of Sec.  
1.402(a)-2), and the denominator of which is the sum of such employer 
contributions and the net employee contributions to the plan (as defined 
in paragraph (a)(2) of Sec.  1.402(a)-2). Thus, if the employer does not 
contribute to the plan, no part of any distribution thereunder 
constitutes earned income. Amounts included in gross income under 
section 402(b), 403(c), or 1379(b)(1) in respect of employer 
contributions to a plan described in this subdivision do not constitute 
deferred compensation.
    (B) If a recipient's rights to receive amounts pursuant to a plan 
cease to be subject to a substantial risk of forfeiture in more than one 
of his taxable years, each payment pursuant to such plan shall be 
considered to consist of a ratable portion of all of the amounts which 
are not subject to a substantial risk of forfeiture at the time of such 
payment. Thus, for example, if an employment contract provides in part 
that an employee or his estate is to receive in each of the fifteen 
years after the year in which he attains or would have attained age 65 
an amount equal to $2,000 times his years of service with the employer 
and if he had eighteen years of service with the employer, each $36,000 
payment would be considered to consist of 18 payments of $2,000, his 
right to receive one of which ceased to be subject to a substantial risk 
of forfeiture upon completing his first year of service with the 
employer, his right to receive another of which ceased to be subject to 
a substantial risk of forfeiture upon completing his second year of 
service with the employer, etc. Therefore, if the employee's last year 
of service with the employer was completed in the year in which he 
attained age 65, $2,000 of the first payment in the next year would not 
be deferred compensation under subparagraph (2) of this paragraph, and 
the remaining $34,000 of that payment and all of the other fourteen 
payments of $36,000 would be deferred compensation. If the employee's 
last year of service was completed in an earlier year, all fifteen 
payments would constitute deferred compensation in full.
    (iii) Income attributable to options. (A) Ordinary income realized 
by a taxpayer upon a disqualifying disposition of stock acquired 
pursuant to the exercise of a statutory option (as defined in Sec.  
1.421-7(b)) is not deferred compensation for purposes of subparagraph 
(1) of this paragraph and, therefore, constitutes earned income.
    (B) Ordinary income realized by a taxpayer upon the transfer of 
property pursuant to the exercise, or sale or other disposition, of an 
option which is not a statutory option (as defined in Sec.  1.421-7(b)) 
and which was granted on or before December 15, 1971, is not deferred 
compensation for purposes of subparagraph (1) of this paragraph and, 
therefore, constitutes earned income. Ordinary income realized by a 
taxpayer upon the transfer of property pursuant to the exercise, or sale 
or other disposition, of an option which is not a statutory option (as 
defined in Sec.  1.421-(b)) and which is granted after December 15, 1971 
constitutes earned income rather than deferred compensation if such 
option cannot, by its terms, be exercised more than three months after 
termination (for any reason other than death) of the grantee's 
employment by the grantor of the option. If the terms of such an option 
granted after December 15, 1971 permit the exercise of the option more 
than three months after termination (for any reason other than death) of 
the grantee's employment by the grantor, ordinary income realized by a 
taxpayer upon the transfer of property pursuant to exercise, or sale

[[Page 825]]

or other disposition, of the option constitutes earned income rather 
than deferred compensation only if such income is realized in a taxable 
year no later than that following the taxable year in which the option 
was granted. In the case of the grantee's death within a period during 
which ordinary income realized upon the transfer of property pursuant to 
his exercise, or sale or other disposition, of an option described in 
this subdivision would have constituted earned income as provided in 
this subdivision had the grantee lived, ordinary income realized 
subsequently upon the transfer of property pursuant to exercise, or sale 
or other disposition, of an option described in this subdivision, by the 
grantee's legal represedntatives or beneficiary constitutes earned 
income only if such exercise or sale or other disposition, occurs on a 
date no later than the date twelve months following that of the 
grantee's death. For purposes of this subdivision, the term employment 
by the grantor includes employment by a related corporation as defined 
in Sec.  1.421-7(i), and by a corporation which is considered a related 
corporation under Sec.  1.421-7(h)(3). Therefore, the transfer of an 
employee from the grantor corporation to such a related corporation or 
from one related corporation to another related corporation or to the 
grantor corporation will not be treated as a termination of employment 
by the grantor.
    (C) For purposes of (B) of this subdivision, if an option described 
therein and granted after December 15, 1971 is exercisable only 
following completion of a specified period of employment, the taxable 
year in which such period of employment is completed shall be treated as 
the taxable year in which the option was granted. Further, if the terms 
of an option described in (B) of this subdivision and granted after 
December 15, 1971 are modified, such modification shall not be 
considered as the granting of a new option for purposes of (B) in 
determining the taxable year in which such option was granted.
    (D) For purposes of (B) of this subdivision, an option will not be 
considered exercisable by its terms more than three months following 
termination (for any reason other than death) of the grantee's 
employment by the grantor solely because the terms of such option 
permit, in the event of such grantee's death within three months 
following termination of such employment, exercise of the option by the 
grantee's legal representative or beneficiary during or following such 
three-month period.
    (4) Examples. The application of this paragraph may be illustrated 
by the following examples, in each of which it is assumed that any 
amounts paid as described therein constitute salaries or other 
compensation for personal services actually rendered rather than a 
distribution of earnings and profits:

    Example 1. (i) On January 1, 1965, Corporation X and E, an 
individual, execute an employment contract under which E is to be 
employed by X for a period of 10 years. Under the contract, E is 
entitled to a stated annual salary and to additional compensation of 
$10x for each year. This additional compensation is to be credited as of 
December 31 of each year to a bookkeeping reserve account and will be 
deferred, accumulated, and paid only upon termination of the employment 
contract, E's becoming a part-time employee of X, or E's becoming 
partially or totally incapacitated. Under the terms of the contract, X 
is merely under a contractual obligation to make the payments when due, 
and neither X nor E intends that the amounts in the reserve be held by X 
in trust for E. The contract provides that if E shall fall or refuse to 
perform his duties, X will be relieved of any obligation to make further 
credits to the reserve but not of the obligation to distribute amounts 
previously credited to the reserve. In the event E should die prior to 
his receipt in full of the balance in the account, the remaining balance 
is distributed to his personal representative.
    (ii) Having completed the terms of his employment contract, E 
retires from the employment of X on December 31, 1974, and on January 
15, 1975, receives a total distribution of $100x from his reserve 
account. Of this distribution of $100x to E, only $10x, representing the 
credit made to E's reserve account in 1974, constitutes earned income. 
No other credits to E's reserve account are taken into account for this 
purpose because they were made to the reserve account and became 
nonforfeitable in a year earlier than the year preceding that in which 
the $100x distribution was made to E.
    Example 2. (i) Corporation X follows a policy of permitting 
employees to elect before the beginning of any calendar year to defer 
the receipt of either 5 percent or 10 percent of their stated annual 
salary to be earned in that year. E, an employee, elects for each of

[[Page 826]]

10 years of employment to defer receipt of $5x of his stated annual 
salary. The total so deferred, or $50x, is paid to E on January 15, 
1974.
    (ii) Since the salary which E elects to defer is includible in his 
gross income only in the taxable year in which actually received by him, 
then to the extent E receives any such deferred salary payment after the 
end of the taxable year following the taxable year from which such 
payment was deferred, such payment does not constitute earned income 
since such payment is deferred compensation under this paragraph (b). 
Accordingly, of the $50x distribution to E, only $5x, representing the 
salary deferral from 1973, constitutes earned income.
    Example 3. (i) E is an officer of Corporation X, which has a plan 
for making future payments of additional compensation for current 
services to certain employees. The plan provides that a fixed percentage 
of the annual net earnings in excess of $400x is to be designated for 
division among the participants. This amount is not currently paid to 
the participants; but X has set up on its books a separate account for 
each participant, including E, and each year it credits thereto the 
dollar amount of his participation for the year. Distributions are to be 
made from the account when the employee reaches the age of 60, is no 
longer employed by X, including cessation of employment due to death, or 
becomes totally unable to perform his duties, whichever occurs first. 
X's liability to make these distributions is contingent upon the 
employee's refraining from engaging in any business competitive to that 
of X, making himself available to X for consultation and advice after 
retirement or termination of his services, unless disabled, and 
retaining unencumbered any interest or benefit under the plan. In the 
event of his death, either before or after the beginning of payments, 
amounts in an employee's account are distributable to his designated 
beneficiaries of heirs-at-law. Under the facts and circumstances, E's 
rights to distributions from his account pursuant to the terms of the 
plan are not subject to a substantial risk of forfeiture within the 
meaning of section 83(c)(1). Under the terms of the compensation plan, X 
is under a merely contractual obligation to make the payments when due, 
and the parties did not intend that the amounts in each account be held 
by X in trust for the participants.
    (ii) Cash or property includable in gross income by E which is 
attributable to a credit to his account in a taxable year earlier than 
the year immediately preceding the year on onclusion does not constitute 
earned income since it is deferred compensation within the meaning of 
this paragraph (b). See subparagraph (3) of this paragraph (b) for rules 
for determining that portion of distributions from E's acount which are 
attributable to credits to his account in a taxable year immediately 
preceding the year in which such distributions are made.
    Example 4. (i) Corporation X has an annual incentive bonus plan for 
its employees. Under this plan, X has the sole discretion to defer all 
or any part of any employee's incentive bonus award. In addition, no 
employee has any right to receive any incentive bonus for any year 
(whether to be paid currently or to be deferred) until such time, if 
any, as X makes an award to him. No employee has any election as to the 
amount or time of payment of his award for any year. Furthermore, the 
last of any payments under an award must be paid no later than 10 years 
from the normal retirement date of the employee. In addition, the 
obligations of X under the plan are merely contractual and are not 
funded or secured. The awards are nonassignable. However, in the case of 
death the awards are payable to the employee's designated beneficiary. 
Once made, a bonus award under the plan is not subject to any 
substantial risk of forfeiture.
    (ii) In each of the years 1967, 1968, 1969, and 1970, X awards E a 
deferred bonus of $100x. E retires on June 30, 1971. Beginning in 1971, 
X pays to E the total of $400x of deferred bonus awards in 5 annual 
installments of $80x each. With respect to the $80x payment made to E in 
1971, $20x, representing the ratable portion of the payment ($100x/$400x 
x $80x) allocable to the 1970 bonus award, is earned income because it 
was received in a year no later than the year following that (1970) in 
which E's right to receive such amount was no longer subject to a 
substantial risk of forfeiture. The balance of the $80x payment made in 
1971 and all payments made subsequently constitute deferred 
compensation.
    Example 5. (i) Under the terms of a nonqualified bonus planfor its 
executive employees, Corporation M contributes each year to a bonus 
reserve a given percentage of its net earnings for the year. M makes 
bonus awards each year from the reserve in cash or stock of M, or a 
combination of both, to such executive employees, and in such amounts, 
as M may determine. The bonus award so determined to be made to a 
beneficiary is paid to him in installments: 20 percent of the award at 
the time that the award is made and the remaining installments in 
January of each succeeding year (until the full amount of the award is 
paid). Such amounts are payable in succeeding years but only if earned 
out by the employee by continuing service to M, at the rate of \1/12\th 
of the amount of the first installment for each complete month of 
service beginning with the year of determination. If the beneficiary 
voluntarily terminates his employment, is discharged for cause, or 
conducts himself in a manner inimical to the best interests of M, he 
forfeits the rights to receive any portion of his bonus award previously 
earned out but undelivered

[[Page 827]]

to him and to continue earning out his bonus award. Upon retirement a 
beneficiary retains the right to earn out an unearned bonus award but 
forfeits the right to continue earning out the award if he conducts 
himself in a manner inimical to M's best interests or engages in an 
activity which is in competition with an activity of M. If a beneficiary 
dies while earning out a bonus award, any unpaid and undelivered portion 
of his award is paid and delivered to his estate or heirs at such time 
and in such manner as if the beneficiary were living.
    (ii) On January 1, 1971, M makes a cash bonus award to A of $100x. 
On January 15, 1971, $20x, representing representing the first 
installment of the award, is paid to A. On January 15, 1972, $20x, 
representing the portion of the award earned out by A during the 
calendar year 1971 is paid to him. On January 1, 1972, A retires from 
employment with M and, having satisfied the conditions to continue 
earning out his bonus award, receives $20x on January 15, 1975.
    (iii) Under the facts and circumstances, the conditions that A not 
conduct himself in a manner inimical to the best interests of M and 
refrain from activity competitive to that of M are not considered to 
result in a substantial risk of forfeiture of the bonus award. The total 
installments of $40x paid to A in 1971 and 1972 constitute earned 
income. The installment of $20x earned out by A in 1972 and paid to him 
in 1973 also constitutes earned income for the taxable year 1973 because 
it was includible in gross income by A before the end of the taxable 
year of A following the first taxable year (the year of his retirement, 
i.e., 1972) in which his right to receive the installment was not 
subject to a substantial risk of forfeiture. The installments paid to A 
in 1974 and 1975, however, do not constitute earned income because they 
were paid in a year later than the year following the year of A's 
retirement. Had the conditions that A not conduct himself in a manner 
inimical to the best interests of M and refrain from activity 
competitive to that of M constituted a substantial risk of forfeiture, 
the installments paid to A in 1974 and 1975 would have constituted 
earned income.
    Example 6. On January 15, 1968, Corporation M, under the terms of a 
nonqualified bonus plan for its employees, grants to A, an employee, 
5,000 dividend units, which entitle A to receive, for the period during 
which the award remains in effect, a cash payment equal to the dividends 
declared andpaid by M on the equivalent of 5,000 shares of its capital 
stock. The award remains in effect for A's lifetime but is subject to 
forfeiture if A is dismissed or leaves the service of M for any reason 
other than his death or retirement, or if A, following his retirement, 
engages in any activity which is harmful to the interests of M. Under 
the particular facts and circumstances, the condition that A not engage 
in any harmful activity is not considered to amount to a substantial 
risk of forfeiture within the meaning of section 83(c)(1). A retires on 
January 1, 1971. In each of the calendar years 1971, 1972, 1973, and 
1974. A receives cash payments of $5x under his bonus award. The 
payments totaling $10x to A in the years 1971 and 1972 constitute earned 
income because A received them before the end of the taxable year 
following the first taxable year (i.e., 1971, the year in which A 
retired) in which his right to receive such payments was not subject to 
a substantial risk of forfeiture. Payments totaling $10x to A in 1973 
and 1974, however, constitute deferred compensation under paragraph (b) 
of this section.
    Example 7. Corporation M maintains an employees' profit sharing 
trust which is not exempt from tax under section 501(a). Under the terms 
of the trust agreement, the interest of the trust beneficiaries in each 
contribution made to the trust by M is subject to asubstantial risk of 
forfeiture for a period of 2 years from the date on which the particular 
contribution is made, except that upon a beneficiary's retirement, his 
entire interest in the trust vests immediately. Contributions are made 
on December 30 of each year. As of August 1, 1969, the total interest, 
forfeitable and nonforfeitable, of A, an employee of M, in the trust is 
$320x. On December 30 in each of the years 1969, 1970, and 1971, M makes 
a further contribution to the trust allocable to A's account equal to 
$60x. A retires on December 31, 1971, and becomes entitled to a total 
distribution from the trust of $500x, of which $320x represents M's 
contributions made prior to August 1, 1969, and $180x represents 
contributions made subsequent to such date. Beginning in 1972, the trust 
distributes to A $500x in 5 equal annual installments. Because M's 
contributions to A's account for the years subsequent to August 1, 1969, 
totaling $180x vested as of his retirement date, such contributions of 
$180x constitute earned income of A for the year 1971 by reason of Sec.  
1.402(b)-1(b). No portion of any annual installment of $100x which is 
includible in A's gross income constitutes earned income since it is 
attributable to the $320x, in all of which A's rights became 
nonforfeitable no later than December 30, 1970.
    Example 8. Corporation M maintains a qualified noncontributory 
pension plan for the benefit of its employees. Under the terms of the 
plan, no employee has a vested right to receive any distribution under 
the plan prior to his retirement from the employment of M upon reaching 
the age of 65. A, an employee of M, reaches age 65 on June 15, 1972, and 
retires on June 30, 1972. Under the terms of the pension plan, A becomes 
entitled to receive a monthly pension of $5x, beginning on July 1, 1972. 
A receives pension payments totalling $30x in 1972, $60x in 1973, $60x 
in

[[Page 828]]

1974, $60x in 1975, and $60x in 1976. The pension payments received by A 
in 1972 and 1973 constitute earned income within paragraph (b)(3)(ii) of 
this section. The pension payments received by A in 1974, 1975, and 1976 
constitute deferred compensation.
    Example 9. (i) A is a participant in X Corporation's noncontributory 
qualified pension plan. The plan provides an annual benefit upon 
attaining age 65 of 2 percent of average compensation for each calendar 
year of participation in the plan. Average compensation is defined as 
the average of an employee's annual compensation over the last 5 
calendar years of service. The plan provides that an employee's rights 
in his accrued benefit are nonforfeitable after 15 years of 
participation in the plan. A attains age 65 on June 20, 1975 and begins 
to receive a pension on July 1, 1975. A's pension is based upon 30 years 
of participation in the plan. A's annual compensation for the period 
1969 through 1974, is as follows:

------------------------------------------------------------------------
                       Year                         Annual Compensation
------------------------------------------------------------------------
1969.............................................                $75,000
1970.............................................                 80,000
1971.............................................                 80,000
1972.............................................                 85,000
1973.............................................                 85,000
1974.............................................                 90,000
------------------------------------------------------------------------

    (ii) Under the terms of the plan, A's accrued benefit as of December 
31, 1974, and his pension are $50,400 (0.02 x 30 x \1/5\ ($80,000 + 
$80,000 + $85,000 + $90,000)). A's accrued benefit as of December 31, 
1973, is $46,980 (0.02 x 29 x \1/5\ $85,000)). Since A's rights in 
$46,980 of his accrued benefit had ceased to be subject to a substantial 
risk of forfeiture before 1974, only $285 (\1/12\ x ($50,400 - $46,980)) 
of each payment received during 1975 does not constitute deferred 
compensation. The balance of the amounts received during 1975 and all 
amounts received in 1976 constitute deferred compensation since they are 
paid after the end of the taxable year following A's first taxable year 
in which his right to receive any such amount was not subject to a 
substantial risk of forfeiture.
    Example 10. On January 15, 1971, Corporation M grants to A, an 
employee, an option to purchase 100 shares of stock of M at a price of 
$10x per share. Such option constitutes a qualified stock option 
constitutes a qualified stock option as defined in section 422(b). On 
August 1, 1971, A exercises his option, at which time the fair market 
value of the 100 shares of M Stock is $15x per share. On April 24, 1972, 
A sells the 100 shares of M stock acquired pursuant to exercise of his 
option at a price of $25x per share. Because the sale constitutes a 
disqualifying disposition within the meaning of section 421(b), A 
realizes ordinary income of $500x and a capital gain of $1,000x in the 
taxable year 1972. The $500x of ordinary income so realized by A 
constitutes earned income.
    Example 11. On November 30, 1072, Corporation M grants to A, an 
employee, a nonqualified stock option to which section 421 does not 
apply and which has no readily ascertainable fair market value on that 
date. The option may, by its terms, be exercised by A at any time 
during, or following termination of, his employment. On March 30, 1974, 
A, while still employed by M, exercises his option and realizes 
compensation income at that time. Such compensation does not constitute 
earned income because the option is exercisable within a period that may 
extend beyond three months after A's termination of employment (other 
than by reason of death). See paragraph (b)(3)(iii)(B) of this section. 
Had A exercised his option at any time prior to January 1, 1974, the 
compensation realized by him by reason of such exercise would have 
constituted earned income.
    Example 12. On November 30, 1972, Corporation N grants to B, an 
employee, a nonqualified stock option to which section 421 does not 
apply and which has no readily ascertainable fair market value on that 
date. The option may by its terms, be exercised only within the period 
during which B is employed by N or within three months thereafter. On 
March 30, 1974, B exercises his option and realizes compensation at that 
time. Such compensation so realized by B constitutes earned income. See 
paragraph (b)(3)(iii)(B) of this section.
    Example 13. On May 9, 1973, and in connection with the performance 
of services by E, an employee, Corporation X transfers to E 100 shares 
of X stock. Under the terms of the transfer, E is subject to a binding 
commitment to return the stock to X if E leaves X's employment for any 
reason prior to the expiration of a 3-year period beginning on the date 
of transfer. Since E must perform substantial services for X before he 
may keep the X stock, E's rights in the stock are subject to a 
substantial risk of forfeiture under section 83(c)(1). Consequently, if 
such restriction lapses on May 9, 1976, the compensation realized at 
such time constitutes earned income. Had E elected to include an amount 
in his gross income in 1973 pursuant to section 83(b) and the 
regulations thereunder, the amount so included would also have 
constituted earned income.
    Example 14. On October 1, 1971, A, an author, and Corporation M, a 
publisher, executed an agreement under which A granted to M the 
exclusive right to print, publish and sell a book he had written. The 
agreement provides that M will pay to A specified royalties based on the 
actual cash received from the sale of the published work, render 
semiannual statements of the sales, and at the time of rendering each 
statement make settlement for the amount due. On the same day, another 
agreement was signed by A and

[[Page 829]]

M, mutually agreeing that, in consideration of, and notwithstanding, any 
contrary provisions contained in the first contract, M shall not pay A 
more than $100x in any one calendar year. Under this supplemental 
contract, sums in excess of $100x accruing in any one calendar year are 
to be carried over by M into succeeding years. For the calendar year 
1971, royalties payable to A under the basic agreement amount to $100x 
and this sum is paid to A. For the calendar year 1972, royalties of 
$120x are payable to A under the basic agreement, but by reason of the 
supplemental agreement, only $100x of this sum is actually paid to A. 
For each of the calendar years 1973 and 1974, royalties of $100x are 
payable to A under the basic agreement, and this sum is paid to A. For 
the calendar year 1975, royalties of $80x are payable to A under the 
basic agreement, and this sum, plus $20x carried over from 1972, or 
$100x, is paid to A. The $100x paid to A in each of the years 1971, 
1972, 1973, and 1974, and $80x of the $100x paid to A in 1975 constitute 
earned income. The additional $20x carried over from 1972 and paid to A 
in 1975 constitutes deferred compensation under this paragraph (b) 
because it was paid to A later than the end of the year following the 
year (i.e., 1972) in which A's right to receive the amount was not 
subject to a substantial risk of forfeiture.
    Example 15. Corporation M is the producer and owner of a feature 
length motion picture which is distributed to exhibitors by Corporation 
N pursuant to a distribution agreement between M and N providing for 
current payments to M of a given percentage of the current net profits 
derived by N from the exhibition and exploitation of the picture. A was 
employed by M as the leading actor in the picture for fixed compensation 
payable at the rate of $10x per week during the production period plus 
additional compensation equal to a given percentage of the net profits 
derived from the exhibition and exploitation of the picture. A's 
additional compensation is payable at the time that M receives payments 
from N under the terms of the distribution agreement. The additional 
compensation paid to A does not constitute deferred compensation since 
it is attributable to and measured by current net profits derived from 
the use of property created in part by A's efforts.
    Example 16. A, a boxer entered into an agreement with M boxing club 
to fight a particular opponent on June 19, 1971. The agreement provided 
in part, that for his performance A was to receive 16 percent of the 
gross receipts derived from the match. Simultaneously, A and M executed 
a separate agreement providing for payment of A's share of the receipts 
from the match as follows: 25 percent thereof not later than August 15, 
1971, and 25 percent thereof during each of the years 1972, 1973, and 
1974 in equal semiannual installments. A's share of the gross receipts 
derived from the match was $100x, of which 25 percent was paid to him in 
1971 and a total of $25x in each of the years 1972, 1973, and 1974. 
Under the particular facts and circumstances, A and M are not acting as 
partners or joint venturers. Thus, A is taxable upon his share of such 
gross receipts only in the years in which such share is actually paid to 
him under the terms of the separate agreement. The payments of $25x in 
each of the years 1971 and 1972 constitute earned income. The payments 
of $25x in each of the years 1973 and 1974 would not constitute earned 
income because they constitute deferred compensation received later than 
the end of the first taxable year (i.e., 1972) following the year in 
which A's right to receive such amounts was not subject to a substantial 
risk of forfeiture.

[T.D. 7446, 41 FR 55339, Dec. 20, 1976]

           Small Business Corporations and Their Shareholders



Sec.  1.1361-0  Table of contents.

    This section lists captions contained in Sec. Sec.  1.1361-1, 
1.1361-2, 1.1361-3, 1.1361-4, 1.1361-5, and 1.1361-6.

                  Sec.  1.1361-1 S Corporation defined.

    (a) In general.
    (b) Small business corporation defined.
    (1) In general.
    (2) Estate in bankruptcy.
    (3) Treatment of restricted stock.
    (4) Treatment of deferred compensation plans.
    (5) Treatment of straight debt.
    (6) Effective date provisions.
    (c) Domestic corporation.
    (d) Ineligible corporation.
    (1) General rule.
    (2) Exceptions.
    (e) Number of shareholders.
    (1) General rule.
    (2) Special rules relating to stock owned by husband and wife.
    (3) Special rules relating to stock owned by members of a family.
    (f) Shareholder must be an individual or estate.
    (g) No nonresident alien shareholder.
    (1) General rule.
    (2) Special rule for dual residents.
    (h) Special rules relating to trusts.
    (1) General rule.
    (2) Foreign trust.
    (3) Determination of shareholders.
    (i) [Reserved]
    (j) Qualified subchapter S trust.
    (1) Definition.
    (2) Special rules.
    (3) Separate and independent shares of a trust.

[[Page 830]]

    (4) Qualified terminable interest property trust.
    (5) Ceasing to meet the QSST requirements.
    (6) Qualified subchapter S trust election.
    (7) Treatment as shareholder.
    (8) Coordination with grantor trust rules.
    (9) Successive income beneficiary.
    (10) Affirmative refusal to consent.
    (11) Revocation of QSST election.
    (12) Converting a QSST to an ESBT.
    (k)(1) Examples.
    (2) Effective date.
    (l) Classes of stock.
    (1) General rule.
    (2) Determination of whether stock confers identical rights to 
distribution and liquidation proceeds.
    (3) Stock taken into account.
    (4) Other instruments, obligations, or arrangements treated as a 
second class of stock.
    (5) Straight debt safe harbor.
    (6) Inadvertent terminations.
    (7) Effective date
    (m) Electing small business trust (ESBT).
    (1) Definition.
    (2) ESBT election.
    (3) Effect of ESBT election.
    (4) Potential current beneficiaries.
    (5) ESBT terminations.
    (6) Revocation of ESBT election.
    (7) Converting an ESBT to a QSST.
    (8) Examples.
    (9) Effective date.

   Sec.  1.1361-2 Definitions relating to S corporation subsidiaries.

    (a) In general.
    (b) Stock treated as held by S corporation.
    (c) Straight debt safe harbor.
    (d) Examples.

                      Sec.  1.1361-3 QSub election.

    (a) Time and manner of making election.
    (1) In general.
    (2) Manner of making election.
    (3) Time of making election.
    (4) Effective date of election.
    (5) Example.
    (6) Extension of time for making a QSub election.
    (b) Revocation of QSub election.
    (1) Manner of revoking QSub election.
    (2) Effective date of revocation.
    (3) Revocation after termination.
    (4) Revocation before QSub election effective.

                 Sec.  1.1361-4 Effect of QSub election.

    (a) Separate existence ignored.
    (1) In general.
    (2) Liquidation of subsidiary.
    (i) In general.
    (ii) Examples
    (iii) Adoption of plan of liquidation.
    (iv) Example.
    (v) Stock ownership requirements of section 332.
    (3) Treatment of banks.
    (i) In general.
    (ii) Examples.
    (iii)Effective date.
    (4) Treatment of stock of QSub.
    (5) Transitional relief.
    (i) General rule.
    (ii) Examples.
    (b) Timing of the liquidation.
    (1) In general.
    (2) Application to elections in tiered situations.
    (3) Acquisitions.
    (i) In general.
    (ii) Special rules for acquired S corporations.
    (4) Coordination with section 338 election.
    (c) Carryover of disallowed losses and deductions.
    (d) Examples.

              Sec.  1.1361-5 Termination of QSub election.

    (a) In general.
    (1) Effective date.
    (2) Information to be provided upon termination of QSub election by 
failure to qualify as a QSub.
    (3) QSub joins a consolidated group.
    (4) Examples.
    (b) Effect of termination of QSub election.
    (1) Formation of new corporation.
    (i) In general.
    (ii) Termination for tiered QSubs.
    (2) Carryover of disallowed losses and deductions.
    (3) Examples.
    (c) Election after QSub termination.
    (1) In general.
    (2) Exception.
    (3) Examples.

                     Sec.  1.1361-6 Effective date.

[T.D. 8600, 60 FR 37581, July 21, 1995, as amended by T.D. 8869, 65 FR 
3848, Jan. 25, 2000; T.D. 8994, 67 FR 34397, May 14, 2002; T.D. 9422, 73 
FR 47527, Aug. 14, 2008]



Sec.  1.1361-1  S corporation defined.

    (a) In general. For purposes of this title, with respect to any 
taxable year--
    (1) The term S corporation means a small business corporation (as 
defined in paragraph (b) of this section) for which an election under 
section 1362(a) is in effect for that taxable year.
    (2) The term C corporation means a corporation that is not an S 
corporation for that taxable year.

[[Page 831]]

    (b) Small business corporation defined--(1) In general. For purposes 
of subchapter S, chapter 1 of the Code and the regulations thereunder, 
the term small business corporation means a domestic corporation that is 
not an ineligible corporation (as defined in section 1361(b)(2)) and 
that does not have--
    (i) More than the number of shareholders provided in section 
1361(b)(1)(A);
    (ii) As a shareholder, a person (other than an estate, a trust 
described in section 1361(c)(2), or, for taxable years beginning after 
December 31, 1997, an organization described in section 1361(c)(6)) who 
is not an individual;
    (iii) A nonresident alien as a shareholder; or
    (iv) More than one class of stock.
    (2) Estate in bankruptcy. The term estate, for purposes of this 
paragraph, includes the estate of an individual in a case under title 11 
of the United States Code.
    (3) Treatment of restricted stock. For purposes of subchapter S, 
stock that is issued in connection with the performance of services 
(within the meaning of Sec.  1.83-3(f)) and that is substantially 
nonvested (within the meaning of Sec.  1.83-3(b)) is not treated as 
outstanding stock of the corporation, and the holder of that stock is 
not treated as a shareholder solely by reason of holding the stock, 
unless the holder makes an election with respect to the stock under 
section 83(b). In the event of such an election, the stock is treated as 
outstanding stock of the corporation, and the holder of the stock is 
treated as a shareholder for purposes of subchapter S. See paragraphs 
(l) (1) and (3) of this section for rules for determining whether 
substantially nonvested stock with respect to which an election under 
section 83(b) has been made is treated as a second class of stock.
    (4) Treatment of deferred compensation plans. For purposes of 
subchapter S, an instrument, obligation, or arrangement is not 
outstanding stock if it--
    (i) Does not convey the right to vote;
    (ii) Is an unfunded and unsecured promise to pay money or property 
in the future;
    (iii) Is issued to an individual who is an employee in connection 
with the performance of services for the corporation or to an individual 
who is an independent contractor in connection with the performance of 
services for the corporation (and is not excessive by reference to the 
services performed); and
    (iv) Is issued pursuant to a plan with respect to which the employee 
or independent contractor is not taxed currently on income.

A deferred compensation plan that has a current payment feature (e.g., 
payment of dividend equivalent amounts that are taxed currently as 
compensation) is not for that reason excluded from this paragraph 
(b)(4).
    (5) Treatment of straight debt. For purposes of subchapter S, an 
instrument or obligation that satisfies the definition of straight debt 
in paragraph (l)(5) of this section is not treated as outstanding stock.
    (6) Effective date provision. Section 1.1361-1(b) generally applies 
to taxable years of a corporation beginning on or after May 28, 1992. 
However, a corporation and its shareholders may apply this Sec.  1.1361-
1(b) to prior taxable years. In addition, substantially nonvested stock 
issued on or before May 28, 1992, that has been treated as outstanding 
by the corporation is treated as outstanding for purposes of subchapter 
S, and the fact that it is substantially nonvested and no section 83(b) 
election has been made with respect to it will not cause the stock to be 
treated as a second class of stock.
    (c) Domestic corporation. For purposes of paragraph (b) of this 
section, the term domestic corporation means a domestic corporation as 
defined in Sec.  301.7701-5 of this chapter, and the term corporation 
includes an entity that is classified as an association taxable as a 
corporation under Sec.  301.7701-2 of this chapter.
    (d) Ineligible corporation--(1) General rule. Except as otherwise 
provided in this paragraph (d), the term ineligible corporation means a 
corporation that is--
    (i) For taxable years beginning on or after January 1, 1997, a 
financial institution that uses the reserve method of accounting for bad 
debts described in section 585 (for taxable years beginning

[[Page 832]]

prior to January 1, 1997, a financial institution to which section 585 
applies (or would apply but for section 585(c)) or to which section 593 
applies);
    (ii) An insurance company subject to tax under subchapter L;
    (iii) A corporation to which an election under section 936 applies; 
or
    (iv) A DISC or former DISC.
    (2) Exceptions. See the special rules and exceptions provided in 
sections 6(c) (2), (3) and (4) of Public Law 97-354 that are applicable 
for certain casualty insurance companies and qualified oil corporations.
    (e) Number of shareholders--(1) General rule. A corporation does not 
qualify as a small business corporation if it has more than the number 
of shareholders provided in section 1361(b)(1)(A). Ordinarily, the 
person who would have to include in gross income dividends distributed 
with respect to the stock of the corporation (if the corporation were a 
C corporation) is considered to be the shareholder of the corporation. 
For example, if stock (owned other than by a husband and wife or members 
of a family described in section 1361(c)(1)) is owned by tenants in 
common or joint tenants, each tenant in common or joint tenant is 
generally considered to be a shareholder of the corporation. (For 
special rules relating to stock owned by husband and wife or members of 
a family, see paragraphs (e)(2) and (3) of this section, respectively; 
for special rules relating to restricted stock, see paragraphs (b)(3) 
and (6) of this section.) The person for whom stock of a corporation is 
held by a nominee, guardian, custodian, or an agent is considered to be 
the shareholder of the corporation for purposes of this paragraph (e) 
and paragraphs (f) and (g) of this section. For example, a partnership 
may be a nominee of S corporation stock for a person who qualifies as a 
shareholder of an S corporation. However, if the partnership is the 
beneficial owner of the stock, then the partnership is the shareholder, 
and the corporation does not qualify as a small business corporation. In 
addition, in the case of stock held for a minor under a uniform 
transfers to minors act or similar statute, the minor and not the 
custodian is the shareholder. Except as otherwise provided in paragraphs 
(h) and (j) of this section, and for purposes of this paragraph (e) and 
paragraphs (f) and (g) of this section, if stock is held by a decedent's 
estate or a trust described in section 1361(c)(2)(A)(ii) or (iii), the 
estate or trust (and not the beneficiaries of the estate or trust) is 
considered to be the shareholder; however, if stock is held by a subpart 
E trust (which includes a voting trust) or an electing QSST described in 
section 1361(d)(1), the deemed owner of the trust is considered to be 
the shareholder. If stock is held by an ESBT described in section 
1361(c)(2)(A)(v), each potential current beneficiary of the trust shall 
be treated as a shareholder, except that the trust shall be treated as 
the shareholder during any period in which there is no potential current 
beneficiary of the trust. If stock is held by a trust described in 
section 1361(c)(2)(A)(vi), the individual for whose benefit the trust 
was created shall be treated as the shareholder. See paragraph (h) of 
this section for special rules relating to trusts.
    (2) Special rules relating to stock owned by husband and wife. For 
purposes of paragraph (e)(1) of this section, stock owned by a husband 
and wife (or by either or both of their estates) is treated as if owned 
by one shareholder, regardless of the form in which they own the stock. 
For example, if husband and wife are owners of a subpart E trust, they 
will be treated as one individual. Both husband and wife must be U.S. 
citizens or residents, and a decedent spouse's estate must not be a 
foreign estate as defined in section 7701(a)(31). The treatment 
described in this paragraph (e)(2) will cease upon dissolution of the 
marriage for any reason other than death.
    (3) Special rules relating to stock owned by members of a family--
(i) In general. For purposes of paragraph (e)(1) of this section, stock 
owned by members of a family is treated as owned by one shareholder. 
Members of a family include a common ancestor, any lineal descendant of 
the common ancestor (without any generational limit), and any spouse (or 
former spouse) of the common ancestor or of any lineal descendants of 
the common ancestor. An individual shall not be considered to be

[[Page 833]]

a common ancestor if, on the applicable date, the individual is more 
than six generations removed from the youngest generation of 
shareholders who would be members of the family determined by deeming 
that individual as the common ancestor. For purposes of this six-
generation test, a spouse (or former spouse) is treated as being of the 
same generation as the individual to whom the spouse is or was married. 
This test is applied on the latest of the date the election under 
section 1362(a) is made for the corporation, the earliest date that a 
member of the family (determined by deeming that individual as the 
common ancestor) holds stock in the corporation, or October 22, 2004. 
For this purpose, the date the election under section 1362(a) is made 
for the corporation is the effective date of the election, not the date 
it is signed or received by any person. The test is only applied as of 
the applicable date, and lineal descendants (and spouses) more than six 
generations removed from the common ancestor will be treated as members 
of the family even if they acquire stock in the corporation after that 
date. The members of a family are treated as one shareholder under this 
paragraph (e)(3) solely for purposes of section 1361(b)(1)(A), and not 
for any other purpose, whether under section 1361 or any other 
provision. Specifically, each member of the family who owns or is deemed 
to own stock must meet the requirements of sections 1361(b)(1)(B) and 
(C) (regarding permissible shareholders) and section 1362(a)(2) 
(regarding shareholder consents to an S corporation election). Although 
a person may be a member of more than one family under this paragraph 
(e)(3), each family (not all of whose members are also members of the 
other family) will be treated as one shareholder. For purposes of this 
paragraph (e)(3), any legally adopted child of an individual, any child 
who is lawfully placed with an individual for legal adoption by that 
individual, and any eligible foster child of an individual (within the 
meaning of section 152(f)(1)(C)), shall be treated as a child of such 
individual by blood.
    (ii) Certain entities treated as members of a family. For purposes 
of this paragraph (e)(3), the estate or trust (described in section 
1361(c)(2)(A)(ii) or (iii)) of a deceased member of the family will be 
considered to be a member of the family during the period in which the 
estate or such trust (if the trust is described in section 
1361(c)(2)(A)(ii) or (iii)), holds stock in the S corporation. The 
members of the family also will include--
    (A) In the case of an ESBT, each potential current beneficiary who 
is a member of the family;
    (B) In the case of a QSST, the income beneficiary who makes the QSST 
election, if that income beneficiary is a member of the family;
    (C) In the case of a trust created primarily to exercise the voting 
power of stock transferred to it, each beneficiary who is a member of 
the family;
    (D) The individual for whose benefit a trust described in section 
1361(c)(2)(A)(vi) was created, if that individual is a member of the 
family;
    (E) The deemed owner of a trust described in section 
1361(c)(2)(A)(i) if that deemed owner is a member of the family; and
    (F) The owner of an entity disregarded as an entity separate from 
its owner under Sec.  301.7701-3 of this chapter, if that owner is a 
member of the family.
    (f) Shareholder must be an individual or estate. Except as otherwise 
provided in paragraph (e)(1) of this section (relating to nominees), 
paragraph (h) of this section (relating to certain trusts), and, for 
taxable years beginning after December 31, 1997, section 1361(c)(6) 
(relating to certain exempt organizations), a corporation in which any 
shareholder is a corporation, partnership, or trust does not qualify as 
a small business corporation.
    (g) Nonresident alien shareholder--(1) General rule. (i) A 
corporation having a shareholder who is a nonresident alien as defined 
in section 7701(b)(1)(B) does not qualify as a small business 
corporation. If a U.S. shareholder's spouse is a nonresident alien who 
has a current ownership interest (as opposed, for example, to a 
survivorship interest) in the stock of the corporation by reason of any 
applicable law, such as a state community property law or a foreign 
country's law, the corporation does not qualify as a small business 
corporation

[[Page 834]]

from the time the nonresident alien spouse acquires the interest in the 
stock. If a corporation's S election is inadvertently terminated as a 
result of a nonresident alien spouse being considered a shareholder, the 
corporation may request relief under section 1362(f).
    (ii) The following examples illustrate this paragraph (g)(1)(i):

    Example 1. In 1990, W, a U.S. citizen, married H, a citizen of a 
foreign country. At all times H is a nonresident alien under section 
7701(b)(1)(B). Under the foreign country's law, all property acquired by 
a husband and wife during the existence of the marriage is community 
property and owned jointly by the husband and wife. In 1996 while 
residing in the foreign country, W formed X, a U.S. corporation, and X 
simultaneously filed an election to be an S corporation. X issued all of 
its outstanding stock in W's name. Under the foreign country's law, X's 
stock became the community property of and jointly owned by H and W. 
Thus, X does not meet the definition of a small business corporation and 
therefore could not file a valid S election because H, a nonresident 
alien, has a current interest in the stock.
    Example 2. Assume the same facts as Example 1, except that in 1991, 
W and H filed a section 6013(g) election allowing them to file a joint 
U.S. tax return and causing H to be treated as a U.S. resident for 
purposes of chapters 1, 5, and 24 of the Internal Revenue Code. The 
section 6013(g) election applies to the taxable year for which made and 
to all subsequent taxable years until terminated. Because H is treated 
as a U.S. resident under section 6013(g), X does meet the definition of 
a small business corporation. Thus, the election filed by X to be an S 
corporation is valid.

    (2) Special rule for dual residents. [Reserved]
    (h) Special rules relating to trusts--(1) General rule. In general, 
a trust is not a permitted small business corporation shareholder. 
However, except as provided in paragraph (h)(2) of this section, the 
following trusts are permitted shareholders:
    (i) Qualified subpart E trust. A trust all of which is treated 
(under subpart E, part I, subchapter J, chapter 1) as owned by an 
individual (whether or not the grantor) who is a citizen or resident of 
the United States (a qualified subpart E trust). This requirement 
applies only during the period that the trust holds S corporation stock.
    (ii) Subpart E trust ceasing to be a qualified subpart E trust after 
the death of deemed owner. A trust that was a qualified subpart E trust 
immediately before the death of the deemed owner and that continues in 
existence after the death of the deemed owner, but only for the 2-year 
period beginning on the day of the deemed owner's death. A trust is 
considered to continue in existence if the trust continues to hold the 
stock pursuant to the terms of the will or the trust agreement, or if 
the trust continues to hold the stock during a period reasonably 
necessary to wind up the affairs of the trust. See Sec.  1.641(b)-3 for 
rules concerning the termination of trusts for federal income tax 
purposes.
    (iii) Electing qualified subchapter S trusts. A qualified subchapter 
S trust (QSST) that has a section 1361(d)(2) election in effect (an 
electing QSST). See paragraph (j) of this section for rules concerning 
QSSTs including the manner for making the section 1361(d)(2) election.
    (iv) Testamentary trusts. A trust (other than a qualified subpart E 
trust, an electing QSST, or an electing small business trust) to which S 
corporation stock is--
    (A) Transferred pursuant to the terms of a will, but only for the 2-
year period beginning on the day the stock is transferred to the trust 
except as otherwise provided in paragraph (h)(3)(i)(D) of this section; 
or
    (B) Transferred pursuant to the terms of an electing trust as 
defined in Sec.  1.645-1(b)(2) during the election period as defined in 
Sec.  1.645-1(b)(6), or deemed to be distributed at the close of the 
last day of the election period pursuant to Sec.  1.645-1(h)(1), but in 
each case only for the 2-year period beginning on the day the stock is 
transferred or deemed distributed to the trust except as otherwise 
provided in paragraph (h)(3)(i)(D) of this section.
    (v) Qualified voting trusts. A trust created primarily to exercise 
the voting power of S corporation stock transferred to it. To qualify as 
a voting trust for purposes of this section (a qualified voting trust), 
the beneficial owners must be treated as the owners of their respective 
portions of the trust under subpart E and the trust must have been 
created pursuant to a written trust agreement entered into by the 
shareholders, that--

[[Page 835]]

    (A) Delegates to one or more trustees the right to vote;
    (B) Requires all distributions with respect to the stock of the 
corporation held by the trust to be paid to, or on behalf of, the 
beneficial owners of that stock;
    (C) Requires title and possession of that stock to be delivered to 
those beneficial owners upon termination of the trust; and
    (D) Terminates, under its terms or by state law, on or before a 
specific date or event.
    (vi) Electing small business trusts. An electing small business 
trust (ESBT) under section 1361(e). See paragraph (m) of this section 
for rules concerning ESBTs including the manner of making the election 
to be an ESBT under section 1361(e)(3).
    (vii) Individual retirement accounts. In the case of a corporation 
which is a bank (as defined in section 581) or a depository institution 
holding company (as defined in section 3(w)(1) of the Federal Deposit 
Insurance Act (12 U.S.C. 1813(w)(1)), a trust which constitutes an 
individual retirement account under section 408(a), including one 
designated as a Roth IRA under section 408A, but only to the extent of 
the stock held by such trust in such bank or company as of October 22, 
2004. Individual retirement accounts (including Roth IRAs) are not 
otherwise eligible S corporation shareholders.
    (2) Foreign trust. For purposes of paragraph (h)(1) of this section, 
in any case where stock is held by a foreign trust as defined in section 
7701(a)(31), the trust is considered to be the shareholder and is an 
ineligible shareholder. Thus, even if a foreign trust qualifies as a 
subpart E trust (e.g., a qualified voting trust), any corporation in 
which the trust holds stock does not qualify as a small business 
corporation.
    (3) Determination of shareholders--(i) General rule. For purposes of 
paragraph (b) of this section (qualification as a small business 
corporation), and, except as provided in paragraph (h)(3)(ii) of this 
section, for purposes of sections 1366 (relating to the pass-through of 
items of income, loss, deduction, or credit), 1367 (relating to 
adjustments to basis of shareholder's stock), and 1368 (relating to 
distributions), the shareholder of S corporation stock held by a trust 
that is a permitted shareholder under paragraph (h)(1) of this section 
is determined as follows:
    (A) If stock is held by a qualified subpart E trust, the deemed 
owner of the trust is treated as the shareholder.
    (B) If stock is held by a trust defined in paragraph (h)(1)(ii) of 
this section, the estate of the deemed owner is generally treated as the 
shareholder as of the day of the deemed owner's death. However, if stock 
is held by such a trust in a community property state, the decedent's 
estate is the shareholder only of the portion of the trust included in 
the decedent's gross estate (and the surviving spouse continues to be 
the shareholder of the portion of the trust owned by that spouse under 
the applicable state's community property law). The estate ordinarily 
will cease to be treated as the shareholder upon the earlier of the 
transfer of the stock by the trust or the expiration of the 2-year 
period beginning on the day of the deemed owner's death. If the trust 
qualifies and becomes an electing QSST, the beneficiary and not the 
estate is treated as the shareholder as of the effective date of the 
QSST election, and the rules provided in paragraph (j)(7) of this 
section apply. If the trust qualifies and becomes an ESBT, the 
shareholders are determined under paragraphs (h)(3)(i)(F) and (h)(3)(ii) 
of this section as of the effective date of the ESBT election, and the 
rules provided in paragraph (m) of this section apply.
    (C) If stock is held by an electing QSST, see paragraph (j)(7) of 
this section for the rules on who is treated as the shareholder.
    (D) If stock is transferred or deemed distributed to a testamentary 
trust described in paragraph (h)(1)(iv) of this section (other than a 
qualified subpart E trust, an electing QSST, or an ESBT), the estate of 
the testator is treated as the shareholder until the earlier of the 
transfer of that stock by the trust or the expiration of the 2-year 
period beginning on the day that the stock is transferred or deemed 
distributed to the trust. If the trust qualifies and becomes an electing 
QSST, the beneficiary and not the estate is treated as the shareholder 
as of the effective

[[Page 836]]

date of the QSST election, and the rules provided in paragraph (j)(7) of 
this section apply. If the trust qualifies and becomes an ESBT, the 
shareholders are determined under paragraphs (h)(3)(i)(F) and (h)(3)(ii) 
of this section as of the effective date of the ESBT election, and the 
rules provided in paragraph (m) of this section apply.
    (E) If stock is held by a qualified voting trust, each beneficial 
owner of the stock, as determined under subpart E, is treated as a 
shareholder with respect to the owner's proportionate share of the stock 
held by the trust.
    (F) If S corporation stock is held by an ESBT, each potential 
current beneficiary is treated as a shareholder. However, if for any 
period there is no potential current beneficiary of the ESBT, the ESBT 
is treated as the shareholder during such period. See paragraph (m)(4) 
of this section for the definition of potential current beneficiary.
    (G) If stock in an S corporation bank or depository institution 
holding company is held by an individual retirement account (including a 
Roth IRA) described in paragraph (h)(1)(vii) of this section, the 
individual for whose benefit the trust was created shall be treated as 
the shareholder.
    (ii) Exceptions. See Sec.  1.641(c)-1 for the rules for the taxation 
of an ESBT. Solely for purposes of section 1366, 1367, and 1368 the 
shareholder of S corporation stock held by a trust is determined as 
follows--
    (A) If stock is held by a trust as defined in paragraph (h)(1)(ii) 
of this section (other than an electing QSST or an ESBT), the trust is 
treated as the shareholder. If the trust continues to own the stock 
after the expiration of the 2-year period, the corporation's S election 
will terminate unless the trust is otherwise a permitted shareholder.
    (B) If stock is transferred or deemed distributed to a testamentary 
trust described in paragraph (h)(1)(iv) of this section (other than a 
qualified subpart E trust, an electing QSST, or an ESBT), the trust is 
treated as the shareholder. If the trust continues to own the stock 
after the expiration of the 2-year period, the corporation's S election 
will terminate unless the trust otherwise qualifies as a permitted 
shareholder.
    (i) [Reserved]
    (j) Qualified subchapter S trust--(1) Definition. A qualified 
subchapter S trust (QSST) is a trust (whether intervivos or 
testamentary), other than a foreign trust described in section 
7701(a)(31), that satisfies the following requirements:
    (i) All of the income (within the meaning of Sec.  1.643(b)-1) of 
the trust is distributed (or is required to be distributed) currently to 
one individual who is a citizen or resident of the United States. For 
purposes of the preceding sentence, unless otherwise provided under 
local law (including pertinent provisions of the governing instrument 
that are effective under local law), income of the trust includes 
distributions to the trust from the S corporation for the taxable year 
in question, but does not include the trust's pro rata share of the S 
corporation's items of income, loss, deduction, or credit determined 
under section 1366. See Sec. Sec.  1.651(a)-2(a) and 1.663(b)-1(a) for 
rules relating to the determination of whether all of the income of a 
trust is distributed (or is required to be distributed) currently. If 
under the terms of the trust income is not required to be distributed 
currently, the trustee may elect under section 663(b) to consider a 
distribution made in the first 65 days of a taxable year as made on the 
last day of the preceding taxable year. See section 663(b) and Sec.  
1.663(b)-2 for rules on the time and manner for making the election. The 
income distribution requirement must be satisfied for the taxable year 
of the trust or for that part of the trust's taxable year during which 
it holds S corporation stock.
    (ii) The terms of the trust must require that--
    (A) During the life of the current income beneficiary, there will be 
only one income beneficiary of the trust;
    (B) Any corpus distributed during the life of the current income 
beneficiary may be distributed only to that income beneficiary;
    (C) The current income beneficiary's income interest in the trust 
will terminate on the earlier of that income beneficiary's death or the 
termination of the trust; and

[[Page 837]]

    (D) Upon termination of the trust during the life of the current 
income beneficiary, the trust will distribute all of its assets to that 
income beneficiary.
    (iii) The terms of the trust must satisfy the requirements of 
paragraph (j)(1)(ii) of this section from the date the QSST election is 
made or from the effective date of the QSST election, whichever is 
earlier, throughout the entire period that the current income 
beneficiary and any successor income beneficiary is the income 
beneficiary of the trust. If the terms of the trust do not preclude the 
possibility that any of the requirements stated in paragraph (j)(1)(ii) 
of this section will not be met, the trust will not qualify as a QSST. 
For example, if the terms of the trust are silent with respect to corpus 
distributions, and distributions of corpus to a person other than the 
current income beneficiary are permitted under local law during the life 
of the current income beneficiary, then the terms of the trust do not 
preclude the possibility that corpus may be distributed to a person 
other than the current income beneficiary and, therefore, the trust is 
not a QSST.
    (2) Special rules--(i) If a husband and wife are income 
beneficiaries of the same trust, the husband and wife file a joint 
return, and each is a U.S. citizen or resident, the husband and wife are 
treated as one beneficiary for purposes of paragraph (j) of this 
section. If a husband and wife are treated by the preceding sentence as 
one beneficiary, any action required by this section to be taken by an 
income beneficiary requires joinder of both of them. For example, each 
spouse must sign the QSST election, continue to be a U.S. citizen or 
resident, and continue to file joint returns for the entire period that 
the QSST election is in effect.
    (ii)(A) Terms of the trust and applicable local law. The 
determination of whether the terms of a trust meet all of the 
requirements under paragraph (j)(1)(ii) of this section depends upon the 
terms of the trust instrument and the applicable local law. For example, 
a trust whose governing instrument provides that A is the sole income 
beneficiary of the trust is, nevertheless, considered to have two income 
beneficiaries if, under the applicable local law, A and B are considered 
to be the income beneficiaries of the trust.
    (B) Legal obligation to support. If under local law a distribution 
to the income beneficiary is in satisfaction of the grantor's legal 
obligation of support to that income beneficiary, the trust will not 
qualify as a QSST as of the date of distribution because, under section 
677(b), if income is distributed, the grantor will be treated as the 
owner of the ordinary income portion of the trust or, if trust corpus is 
distributed, the grantor will be treated as a beneficiary under section 
662. See Sec.  1.677(b)-1 for rules on the treatment of trusts for 
support and Sec.  1.662(a)-4 for rules concerning amounts used in 
discharge of a legal obligation.
    (C) Example. The following example illustrates the rules of 
paragraph (j)(2)(ii)(B) of this section:

    Example: F creates a trust for the benefit of F's minor child, G. 
Under the terms of the trust, all income is payable to G until the trust 
terminates on the earlier of G's attaining age 35 or G's death. Upon the 
termination of the trust, all corpus must be distributed to G or G's 
estate. The trust includes all of the provisions prescribed by section 
1361(d)(3)(A) and paragraph (j)(1)(ii) of this section, but does not 
preclude the trustee from making income distributions to G that will be 
in satisfaction of F's legal obligation to support G. Under the 
applicable local law, distributions of trust income to G will satisfy 
F's legal obligation to support G. If the trustee distributes income to 
G in satisfaction of F's legal obligation to support G, the trust will 
not qualify as a QSST because F will be treated as the owner of the 
ordinary income portion of the trust. Further, the trust will not be a 
qualified subpart E trust because the trust will be subject to tax on 
the income allocable to corpus.

    (iii) If, under the terms of the trust, a person (including the 
income beneficiary) has a special power to appoint, during the life of 
the income beneficiary, trust income or corpus to any person other than 
the current income beneficiary, the trust will not qualify as a QSST. 
However, if the power of appointment results in the grantor being 
treated as the owner of the entire trust under the rules of subpart E, 
the trust may be a permitted shareholder under section 1361 (c)(2)(A)(i) 
and paragraph (h)(1)(i) of this section.

[[Page 838]]

    (iv) If the terms of a trust or local law do not preclude the 
current income beneficiary from transferring the beneficiary's interest 
in the trust or do not preclude a person other than the current income 
beneficiary named in the trust instrument from being treated as a 
beneficiary of the trust under Sec.  1.643(c)-1, the trust will still 
qualify as a QSST. However, if the income beneficiary transfers or 
assigns the income interest or a portion of the income interest to 
another, the trust may no longer qualify as a QSST, depending on the 
facts and circumstances, because any transferee of the current income 
beneficiary's income interest and any person treated as a beneficiary 
under Sec.  1.643(c)-1 will be treated as a current income beneficiary 
for purposes of paragraph (j)(1)(ii) of this section and the trust may 
no longer meet the QSST requirements.
    (v) If the terms of the trust do not preclude a person other than 
the current income beneficiary named in the trust instrument from being 
awarded an interest in the trust by the order of a court, the trust will 
qualify as a QSST assuming the trust meets the requirements of 
paragraphs (j)(1) (i) and (ii) of this section. However, if as a result 
of such court order, the trust no longer meets the QSST requirements, 
the trust no longer qualifies as a QSST and the corporation's S election 
will terminate.
    (vi) A trust may qualify as a QSST even though a person other than 
the current income beneficiary is treated under subpart E as the owner 
of a part or all of that portion of a trust which does not consist of 
the S corporation stock, provided the entire trust meets the QSST 
requirements stated in paragraphs (j)(1) (i) and (ii) of this section.
    (3) Separate and independent shares of a trust. For purposes of 
sections 1361 (c) and (d), a substantially separate and independent 
share of a trust, within the meaning of section 663(c) and the 
regulations thereunder, is treated as a separate trust. For a separate 
share which holds S corporation stock to qualify as a QSST, the terms of 
the trust applicable to that separate share must meet the QSST 
requirements stated in paragraphs (j)(1) (i) and (ii) of this section.
    (4) Qualified terminable interest property trust. If property, 
including S corporation stock, or stock of a corporation that intends to 
make an S election, is transferred to a trust and an election is made to 
treat all or a portion of the transferred property as qualified 
terminable interest property (QTIP) under section 2056(b)(7), the income 
beneficiary may make the QSST election if the trust meets the 
requirements set out in paragraphs (j)(1) (i) and (ii) of this section. 
However, if property is transferred to a QTIP trust under section 
2523(f), the income beneficiary may not make a QSST election even if the 
trust meets the requirements set forth in paragraph (j)(1)(ii) of this 
section because the grantor would be treated as the owner of the income 
portion of the trust under section 677. In addition, if property is 
transferred to a QTIP trust under section 2523(f), the trust does not 
qualify as a permitted shareholder under section 1361(c)(2)(A)(i) and 
paragraph (h)(1)(i) of this section (a qualified subpart E trust), 
unless under the terms of the QTIP trust, the grantor is treated as the 
owner of the entire trust under sections 671 to 677. If the grantor 
ceases to be the income beneficiary's spouse, the trust may qualify as a 
QSST if it otherwise satisfies the requirements under paragraphs (j)(1) 
(i) and (ii) of this section.
    (5) Ceasing to meet the QSST requirements. If a QSST for which an 
election under section 1361(d)(2) has been made (as described in 
paragraph (j)(6) of this section) ceases to meet any of the requirements 
specified in paragraph (j)(1)(ii) of this section, the provisions of 
this paragraph (j) will cease to apply as of the first day on which that 
requirement ceases to be met. If such a trust ceases to meet the income 
distribution requirement specified in paragraph (j)(1)(i) of this 
section, but continues to meet all of the requirements in paragraph 
(j)(1)(ii) of this section, the provisions of this paragraph (j) will 
cease to apply as of the first day of the first taxable year beginning 
after the first taxable year for which the trust ceased to meet the 
income distribution requirement of paragraph

[[Page 839]]

(j)(1)(i) of this section. If a corporation's S election is 
inadvertently terminated as a result of a trust ceasing to meet the QSST 
requirements, the corporation may request relief under section 1362(f).
    (6) Qualified subchapter S trust election--(i) In general. This 
paragraph (j)(6) applies to the election provided in section 1361(d)(2) 
(the QSST election) to treat a QSST (as defined in paragraph (j)(1) of 
this section) as a trust described in section 1361(c)(2)(A)(i), and thus 
a permitted shareholder. This election must be made separately with 
respect to each corporation whose stock is held by the trust. The QSST 
election does not itself constitute an election as to the status of the 
corporation; the corporation must make the election provided by section 
1362(a) to be an S corporation. Until the effective date of a 
corporation's S election, the beneficiary is not treated as the owner of 
the stock of the corporation for purposes of section 678. Any action 
required by this paragraph (j) to be taken by a person who is under a 
legal disability by reason of age may be taken by that person's guardian 
or other legal representative, or if there be none, by that person's 
natural or adoptive parent.
    (ii) Filing the QSST election. The current income beneficiary of the 
trust must make the election by signing and filing with the service 
center with which the corporation files its income tax return the 
applicable form or a statement that--
    (A) Contains the name, address, and taxpayer identification number 
of the current income beneficiary, the trust, and the corporation;
    (B) Identifies the election as an election made under section 
1361(d)(2);
    (C) Specifies the date on which the election is to become effective 
(not earlier than 15 days and two months before the date on which the 
election is filed);
    (D) Specifies the date (or dates) on which the stock of the 
corporation was transferred to the trust; and
    (E) Provides all information and representations necessary to show 
that:
    (1) Under the terms of the trust and applicable local law--
    (i) During the life of the current income beneficiary, there will be 
only one income beneficiary of the trust (if husband and wife are 
beneficiaries, that they will file joint returns and that both are U.S. 
residents or citizens);
    (ii) Any corpus distributed during the life of the current income 
beneficiary may be distributed only to that beneficiary;
    (iii) The current beneficiary's income interest in the trust will 
terminate on the earlier of the beneficiary's death or upon termination 
of the trust; and
    (iv) Upon the termination of the trust during the life of such 
income beneficiary, the trust will distribute all its assets to such 
beneficiary.
    (2) The trust is required to distribute all of its income currently, 
or that the trustee will distribute all of its income currently if not 
so required by the terms of the trust.
    (3) No distribution of income or corpus by the trust will be in 
satisfaction of the grantor's legal obligation to support or maintain 
the income beneficiary.
    (iii) When to file the QSST election. (A) If S corporation stock is 
transferred to a trust, the QSST election must be made within the 16-
day-and-2-month period beginning on the day that the stock is 
transferred to the trust. If a C corporation has made an election under 
section 1362(a) to be an S corporation (S election) and, before that 
corporation's S election is in effect, stock of that corporation is 
transferred to a trust, the QSST election must be made within the 16-
day-and-2-month period beginning on the day that the stock is 
transferred to the trust.
    (B) If a trust holds C corporation stock and that C corporation 
makes an S election effective for the first day of the taxable year in 
which the S election is made, the QSST election must be made within the 
16-day-and-2-month period beginning on the day that the S election is 
effective. If a trust holds C corporation stock and that C corporation 
makes an S election effective for the first day of the taxable year 
following the taxable year in which the S election is made, the QSST 
election must be made within the 16-day-and-2-month period beginning on 
the day

[[Page 840]]

that the S election is made. If a trust holds C corporation stock and 
that corporation makes an S election intending the S election to be 
effective for the first day of the taxable year in which the S election 
is made but, under Sec.  1.1362-6(a)(2), such S election is subsequently 
treated as effective for the first day of the taxable year following the 
taxable year in which the S election is made, the fact that the QSST 
election states that the effective date of the QSST election is the 
first day of the taxable year in which the S election is made will not 
cause the QSST election to be ineffective for the first year in which 
the corporation's S election is effective.
    (C) If a trust ceases to be a qualified subpart E trust, satisfies 
the requirements of a QSST, and intends to become a QSST, the QSST 
election must be filed within the 16-day-and-2-month period beginning on 
the date on which the trust ceases to be a qualified subpart E trust. If 
the estate of the deemed owner of the trust is treated as the 
shareholder under paragraph (h)(3)(i) of this section, the QSST election 
may be filed at any time, but no later than the end of the 16-day-and-2-
month period beginning on the date on which the estate of the deemed 
owner ceases to be treated as a shareholder.
    (D) If a testamentary trust is a permitted shareholder under 
paragraph (h)(1)(iv) of this section, satisfies the requirements of a 
QSST, and intends to become a QSST, the QSST election may be filed at 
any time, but no later than the end of the 16-day-and-2-month period 
beginning on the day after the end of the 2-year period.
    (E) If a corporation's S election terminates because of a late QSST 
election, the corporation may request inadvertent termination relief 
under section 1362(f). See Sec.  1.1362-4 for rules concerning 
inadvertent terminations.
    (iv) Protective QSST election when a person is an owner under 
subpart E. If the grantor of a trust is treated as the owner under 
subpart E of all of the trust, or of a portion of the trust which 
consists of S corporation stock, and the current income beneficiary is 
not the grantor, the current income beneficiary may not make the QSST 
election, even if the trust meets the QSST requirements stated in 
paragraph (j)(1)(ii) of this section. See paragraph (j)(6)(iii)(C) of 
this section as to when the QSST election may be made. See also 
paragraph (j)(2)(vi) of this section. However, if the current income 
beneficiary (or beneficiaries who are husband and wife, if both spouses 
are U.S. citizens or residents and file a joint return) of a trust is 
treated under subpart E as owning all or a portion of the trust 
consisting of S corporation stock, the current income beneficiary (or 
beneficiaries who are husband and wife, if both spouses are U.S. 
citizens or residents and file a joint return) may make the QSST 
election. See Example 8 of paragraph (k)(1) of this section.
    (7) Treatment as shareholder. (i) The income beneficiary who makes 
the QSST election and is treated (for purposes of section 678(a)) as the 
owner of that portion of the trust that consists of S corporation stock 
is treated as the shareholder for purposes of sections 1361(b)(1), 1366, 
1367, and 1368.
    (ii) If, upon the death of an income beneficiary, the trust 
continues in existence, continues to hold S corporation stock but no 
longer satisfies the QSST requirements, is not a qualified subpart E 
trust, and does not qualify as an ESBT, then, solely for purposes of 
section 1361(b)(1), as of the date of the income beneficiary's death, 
the estate of that income beneficiary is treated as the shareholder of 
the S corporation with respect to which the income beneficiary made the 
QSST election. The estate ordinarily will cease to be treated as the 
shareholder for purposes of section 1361(b)(1) upon the earlier of the 
transfer of that stock by the trust or the expiration of the 2-year 
period beginning on the day of the income beneficiary's death. During 
the period that the estate is treated as the shareholder for purposes of 
section 1361(b)(1), the trust is treated as the shareholder for purposes 
of sections 1366, 1367, and 1368. If, after the 2-year period, the trust 
continues to hold S corporation stock and does not otherwise qualify as 
a permitted shareholder, the corporation's S election terminates. If the 
termination is inadvertent, the corporation may request relief under 
section 1362(f).

[[Page 841]]

    (8) Coordination with grantor trust rules. If a valid QSST election 
is made, the income beneficiary is treated as the owner, for purposes of 
section 678(a), of that portion of the trust that consists of the stock 
of the S corporation for which the QSST election was made. However, 
solely for purposes of applying the preceding sentence to a QSST, an 
income beneficiary who is a deemed section 678 owner only by reason of 
section 1361(d)(1) will not be treated as the owner of the S corporation 
stock in determining and attributing the Federal income tax consequences 
of a disposition of the stock by the QSST. For example, if the 
disposition is a sale, the QSST election terminates as to the stock sold 
and any gain or loss recognized on the sale will be that of the trust, 
not the income beneficiary. Similarly, if a QSST distributes its S 
corporation stock to the income beneficiary, the QSST election 
terminates as to the distributed stock and the consequences of the 
distribution are determined by reference to the status of the trust 
apart from the income beneficiary's terminating ownership status under 
sections 678 and 1361(d)(1). The portions of the trust other than the 
portion consisting of S corporation stock are subject to subparts A 
through D of subchapter J of chapter 1, except as otherwise required by 
subpart E of the Internal Revenue Code. However, solely for purposes of 
applying sections 465 and 469 to the income beneficiary, a disposition 
of S corporation stock by a QSST shall be treated as a disposition by 
the income beneficiary.
    (9) Successive income beneficiary. (i) If the income beneficiary of 
a QSST who made a QSST election dies, each successive income beneficiary 
of that trust is treated as consenting to the election unless a 
successive income beneficiary affirmatively refuses to consent to the 
election. For this purpose, the term successive income beneficiary 
includes a beneficiary of a trust whose interest is a separate share 
within the meaning of section 663(c), but does not include any 
beneficiary of a trust that is created upon the death of the income 
beneficiary of the QSST and which is a new trust under local law.
    (ii) The application of this paragraph (j)(9) is illustrated by the 
following examples:

    Example 1. Shares of stock in Corporation X, an S corporation, are 
held by Trust A, a QSST for which a QSST election was made. B is the 
sole income beneficiary of Trust A. On B's death, under the terms of 
Trust A, J and K become the current income beneficiaries of Trust A. J 
and K each hold a separate and independent share of Trust A within the 
meaning of section 663(c). J and K are successive income beneficiaries 
of Trust A, and they are treated as consenting to B's QSST election.
    Example 2. Assume the same facts as in Example 1, except that on B's 
death, under the terms of Trust A and local law, Trust A terminates and 
the principal is to be divided equally and held in newly created Trust B 
and Trust C. The sole income beneficiaries of Trust B and Trust C are J 
and K, respectively. Because Trust A terminated, J and K are not 
successive income beneficiaries of Trust A. J and K must make QSST 
elections for their respective trusts to qualify as QSSTs, if they 
qualify. The result is the same whether or not the trustee of Trusts B 
and C is the same as the trustee of trust A.

    (10) Affirmative refusal to consent--(i) Required statement. A 
successive income beneficiary of a QSST must make an affirmative refusal 
to consent by signing and filing with the service center where the 
corporation files its income tax return a statement that--
    (A) Contains the name, address, and taxpayer identification number 
of the successive income beneficiary, the trust, and the corporation for 
which the election was made;
    (B) Identifies the refusal as an affirmative refusal to consent 
under section 1361(d)(2); and
    (C) Sets forth the date on which the successive income beneficiary 
became the income beneficiary.
    (ii) Filing date and effectiveness. The affirmative refusal to 
consent must be filed within 15 days and 2 months after the date on 
which the successive income beneficiary becomes the income beneficiary. 
The affirmative refusal to consent will be effective as of the date on 
which the successive income beneficiary becomes the current income 
beneficiary.
    (11) Revocation of QSST election. A QSST election may be revoked 
only with the consent of the Commissioner.

[[Page 842]]

The Commissioner will not grant a revocation when one of its purposes is 
the avoidance of Federal income taxes or when the taxable year is 
closed. The application for consent to revoke the election must be 
submitted to the Internal Revenue Service in the form of a letter ruling 
request under the appropriate revenue procedure. The application must be 
signed by the current income beneficiary and must--
    (i) Contain the name, address, and taxpayer identification number of 
the current income beneficiary, the trust, and the corporation with 
respect to which the QSST election was made;
    (ii) Identify the election being revoked as an election made under 
section 1361(d)(2); and
    (iii) Explain why the current income beneficiary seeks to revoke the 
QSST election and indicate that the beneficiary understands the 
consequences of the revocation.
    (12) Converting a QSST to an ESBT. For a trust that seeks to convert 
from a QSST to an ESBT, the consent of the Commissioner is hereby 
granted to revoke the QSST election as of the effective date of the ESBT 
election, if all the following requirements are met:
    (i) The trust meets all of the requirements to be an ESBT under 
paragraph (m)(1) of this section except for the requirement under 
paragraph (m)(1)(iv)(A) of this section that the trust not have a QSST 
election in effect.
    (ii) The trustee and the current income beneficiary of the trust 
sign the ESBT election. The ESBT election must be filed with the service 
center where the S corporation files its income tax return. This ESBT 
election must state at the top of the document ``ATTENTION ENTITY 
CONTROL--CONVERSION OF A QSST TO AN ESBT PURSUANT TO SECTION 1.1361-
1(j)'' and include all information otherwise required for an ESBT 
election under paragraph (m)(2) of this section. A separate election 
must be made with respect to the stock of each S corporation held by the 
trust.
    (iii) The trust has not converted from an ESBT to a QSST within the 
36-month period preceding the effective date of the new ESBT election.
    (iv) The date on which the ESBT election is to be effective cannot 
be more than 15 days and two months prior to the date on which the 
election is filed and cannot be more than 12 months after the date on 
which the election is filed. If an election specifies an effective date 
more than 15 days and two months prior to the date on which the election 
is filed, it will be effective on the day that is 15 days and two months 
prior to the date on which it is filed. If an election specifies an 
effective date more than 12 months after the date on which the election 
is filed, it will be effective on the day that is 12 months after the 
date it is filed.
    (k)(1) Examples. The provisions of paragraphs (h) and (j) of this 
section are illustrated by the following examples in which it is assumed 
that all noncorporate persons are citizens or residents of the United 
States:

    Example 1. (i) Terms of the trust. In 1996, A and A's spouse, B, 
created an intervivos trust and each funded the trust with separately 
owned stock of an S corporation. Under the terms of the trust, A and B 
designated themselves as the income beneficiaries and each, 
individually, retained the power to amend or revoke the trust with 
respect to the trust assets attributable to their respective trust 
contributions. Upon A's death, the trust is to be divided into two 
separate parts; one part attributable to the assets A contributed to the 
trust and one part attributable to B's contributions. Before the trust 
is divided, and during the administration of A's estate, all trust 
income is payable to B. The part of the trust attributable to B's 
contributions is to continue in trust under the terms of which B is 
designated as the sole income beneficiary and retains the power to amend 
or revoke the trust. The part attributable to A's contributions is to be 
divided into two separate trusts both of which have B as the sole income 
beneficiary for life. One trust, the Credit Shelter Trust, is to be 
funded with an amount that can pass free of estate tax by reason of A's 
available estate tax unified credit. The terms of the Credit Shelter 
Trust meet the requirements of section 1361(d)(3) as a QSST. The balance 
of the property passes to a Marital Trust, the terms of which satisfy 
the requirements of section 1361(d)(3) as a QSST and section 2056(b)(7) 
as QTIP. The appropriate fiduciary under Sec.  20.2056(b)-7(b)(3) is 
directed to make an election under section 2056(b)(7).
    (ii) Results after deemed owner's death. On February 3, 1997, A dies 
and the portion of the trust assets attributable to A's contributions 
including the S stock contributed by A,

[[Page 843]]

is includible in A's gross estate under sections 2036 and 2038. During 
the administration of A's estate, the trust holds the S corporation 
stock. Under section 1361(c)(2)(B)(ii), A's estate is treated as the 
shareholder of the S corporation stock that was included in A's gross 
estate for purposes of section 1361(b)(1); however, for purposes of 
sections 1366, 1367, and 1368, the trust is treated as the shareholder. 
B's part of the trust continues to be a qualified subpart E trust of 
which B is the owner under sections 676 and 677. B, therefore, continues 
to be treated as the shareholder of the S corporation stock in that 
portion of the trust. On May 13, 1997, during the continuing 
administration of A's estate, the trust is divided into separate trusts 
in accordance with the terms of the trust instrument. The S corporation 
stock that was included in A's gross estate is distributed to the 
Marital Trust and to the Credit Shelter Trust. A's estate will cease to 
be treated as the shareholder of the S corporation under section 
1361(c)(2)(B)(ii) on May 13, 1997 (the date on which the S corporation 
stock was transferred to the trusts). B, as the income beneficiary of 
the Marital Trust and the Credit Shelter Trust, must make the QSST 
election for each trust by July 28, 1997 (the end of the 16-day-and-2-
month period beginning on the date the estate ceases to be treated as a 
shareholder) to have the trusts become permitted shareholders of the S 
corporation.
    Example 2. (i) Qualified subpart E trust as shareholder. In 1997, A, 
an individual established a trust and transferred to the trust A's 
shares of stock of Corporation M, an S corporation. A has the power to 
revoke the entire trust. The terms of the trust require that all income 
be paid to B and otherwise meet the requirements of a QSST under section 
1361(d)(3). The trust will continue in existence after A's death. The 
trust is a qualified subpart E trust described in section 
1361(c)(2)(A)(i) during A's life, and A (not the trust) is treated as 
the shareholder for purposes of sections 1361(b)(1), 1366, 1367, and 
1368.
    (ii) Trust ceasing to be a qualified subpart E trust on deemed 
owner's death. Assume the same facts as paragraph (i) of this Example 2, 
except that A dies without having exercised A's power to revoke. Upon 
A's death, the trust ceases to be a qualified subpart E trust described 
in section 1361(c)(2)(A)(i). A's estate (and not the trust) is treated 
as the shareholder for purposes of section 1361(b)(1). A's estate will 
cease to be treated as the shareholder for purposes of section 
1361(b)(1) upon the earlier of the transfer of the Corporation M stock 
by the trust (other than to A's estate), the expiration of the 2-year 
period beginning on the day of A's death, or the effective date of a 
QSST or ESBT election if the trust qualifies as a QSST or ESBT. However, 
until that time, because the trust continues in existence after A's 
death and will receive any distributions with respect to the stock it 
holds, the trust is treated as the shareholder for purposes of sections 
1366, 1367, and 1368. If no QSST or ESBT election is made effective upon 
the expiration of the 2-year period, the corporation ceases to be an S 
corporation, but the trust continues as the shareholder of a C 
corporation.
    (iii) Trust continuing to be a qualified subpart E trust on deemed 
owner's death. Assume the same facts as paragraph (ii) of this Example 
2, except that the terms of the trust also provide that if A does not 
exercise the power to revoke before A's death, B will have the sole 
power to withdraw all trust property at any time after A's death. The 
trust continues to qualify as a qualified subpart E trust after A's 
death because, upon A's death, B is deemed to be the owner of the entire 
trust under section 678. Because the trust does not cease to be a 
qualified subpart E trust upon A's death, B (and not A's estate) is 
treated as the shareholder for purposes of sections 1361(b)(1), 1366, 
1367, and 1368. Since the trust qualifies as a QSST, B may make a 
protective QSST election under paragraph (j)(6)(iv) of this section.
    Example 3. (i) 2-year rule under section 1361(c)(2)(A)(ii) and 
(iii). F owns stock of Corporation P, an S corporation. In addition, F 
is the deemed owner of a qualified subpart E trust that holds stock in 
Corporation O, an S corporation. F dies on July 1, 2003. The trust 
continues in existence after F's death but is no longer a qualified 
subpart E trust. On August 1, 2003, F's shares of stock in Corporation P 
are transferred to the trust pursuant to the terms of F's will. Because 
the stock of Corporation P was not held by the trust when F died, 
section 1361(c)(2)(A)(ii) does not apply with respect to that stock. 
Under section 1361(c)(2)(A)(iii), the last day on which the trust could 
be treated as a permitted shareholder of Corporation P is July 31, 2005 
(that is, the last day of the 2-year period that begins on the date of 
the transfer from the estate to the trust). With respect to the shares 
of stock in Corporation O held by the trust at the time of F's death, 
section 1361(c)(2)(A)(ii) applies and the last day on which the trust 
could be treated as a permitted shareholder of Corporation O is June 30, 
2005 (that is, the last day of the 2-year period that begins on the date 
of F's death).
    (ii) Section 645 electing trust and successor trust. Assume the same 
facts as in paragraph (i) of this Example 3, except that F's trust is a 
qualified revocable trust for which a valid section 645 election is made 
on October 1, 2003 (electing trust). Because under section 645 the 
electing trust is treated and taxed for purposes of subtitle A of the 
Code as part of F's estate, the trust may continue to hold the O stock 
pursuant to Sec.  1361(b)(1)(B), without causing the termination of 
Corporation O's S election, for the duration of the section

[[Page 844]]

645 election period. However, on January 1, 2004, during the election 
period, the shares of stock in Corporation O are transferred pursuant to 
the terms of the electing trust to a successor trust. Because the 
successor trust satisfies the definition of a testamentary trust under 
paragraph (h)(1)(iv) of this section, the successor trust is a permitted 
shareholder until the earlier of the expiration of the 2-year period 
beginning on January 1, 2004, or the effective date of a QSST or ESBT 
election for the successor trust.
    Example 4. (i) QSST when terms do not require current distribution 
of income. Corporation Q, a calendar year corporation, makes an election 
to be an S corporation effective for calendar year 1996. On July 1, 
1996, G, a shareholder of Corporation Q, transfers G's shares of 
Corporation Q stock to a trust with H as its current income beneficiary. 
The terms of the trust otherwise satisfy the QSST requirements, but 
authorize the trustee in its discretion to accumulate or distribute the 
trust income. However, the trust, which uses the calendar year as its 
taxable year, initially satisfies the income distribution requirement 
because the trustee is currently distributing all of the income. On 
August 1, 1996, H makes a QSST election with respect to Corporation Q 
that is effective as of July 1, 1996. Accordingly, as of July 1, 1996, 
the trust is a QSST and H is treated as the shareholder for purposes of 
sections 1361(b)(1), 1366, 1367, and 1368.
    (ii) QSST when trust income is not distributed currently. Assume the 
same facts as in paragraph (i) of this Example 4, except that, for the 
taxable year ending on December 31, 1997, the trustee accumulates some 
trust income. The trust ceases to be a QSST on January 1, 1998, because 
the trust failed to distribute all of its income for the taxable year 
ending December 31, 1997. Thus, Corporation Q ceases to be an S 
corporation as of January 1, 1998, because the trust is not a permitted 
shareholder.
    (iii) QSST when a person other than the current income beneficiary 
may receive trust corpus. Assume the same facts as in paragraph (i) of 
this Example 4, except that the events occur in 2003 and H dies on 
November 1, 2003, and the trust does not qualify as an ESBT. Under the 
terms of the trust, after H's death, L is the income beneficiary of the 
trust and the trustee is authorized to distribute trust corpus to L as 
well as to J. The trust ceases to be a QSST as of November 1, 2003, 
because corpus distributions may be made to someone other than L, the 
current (successive) income beneficiary. Under section 
1361(c)(2)(B)(ii), H's estate (and not the trust) is considered to be 
the shareholder for purposes of section 1361(b)(1) for the 2-year period 
beginning on November 1, 2003. However, because the trust continues in 
existence after H's death and will receive any distributions from the 
corporation, the trust (and not H's estate) is treated as the 
shareholder for purposes of sections 1366, 1367, and 1368, during that 
2-year period. After the 2-year period, the S election terminates and 
the trust continues as a shareholder of a C corporation. If the 
termination is inadvertent, Corporation Q may request relief under 
section 1362(f). However, the S election would not terminate if the 
trustee distributed all Corporation Q shares to L, J, or both on or 
before October 31, 2005, (the last day of the 2-year period) assuming 
that neither L nor J becomes the 76th shareholder of Corporation Q as a 
result of the distribution.
    Example 5. QSST when current income beneficiary assigns the income 
interest to a person not named in the trust. On January 1, 1996, stock 
of Corporation R, a calendar year S corporation, is transferred to a 
trust that satisfies all of the requirements to be a QSST. Neither the 
terms of the trust nor local law preclude the current income 
beneficiary, K, from assigning K's income interest in the trust. K files 
a timely QSST election that is effective January 1, 1996. On July 1, 
1996, K assigns the income interest in the trust to N. Under applicable 
state law, the trustee is bound as a result of the assignment to 
distribute the trust income to N. Thus, the QSST will cease to qualify 
as a QSST under section 1361(d)(3)(A)(iii) because N's interest will 
terminate on K's death (rather than on N's death). Accordingly, as of 
the date of the assignment, the trust ceases to be a QSST and 
Corporation R ceases to be an S corporation.
    Example 6. QSST when terms fail to provide for distribution of trust 
assets upon termination during life of current income beneficiary. A 
contributes S corporation stock to a trust the terms of which provide 
for one income beneficiary, annual distributions of income, 
discretionary invasion of corpus only for the benefit of the income 
beneficiary, and termination of the trust only upon the death of the 
current income beneficiary. Since the trust can terminate only upon the 
death of the income beneficiary, the governing instrument fails to 
provide for any distribution of trust assets during the income 
beneficiary's life. The governing instrument's silence on this point 
does not disqualify the trust under section 1361(d)(3)(A) (ii) or (iv).
    Example 7. QSST when settlor of trust retains a reversion in the 
trust. On January 10, 1996, M transfers to a trust shares of stock in 
corporation X, an S corporation. D, who is 13 years old and not a lineal 
descendant of M, is the sole income beneficiary of the trust. On 
termination of the trust, the principal (including the X shares) is to 
revert to M. The trust instrument provides that the trust will terminate 
upon the earlier of D's death or D's 21st birthday. The terms of the 
trust satisfy all of the requirements to be a QSST except those of 
section 1361(d)(3)(A)(ii) (that corpus may be distributed during the 
current

[[Page 845]]

income beneficiary's life only to that beneficiary) and (iv) (that, upon 
termination of the trust during the life of the current income 
beneficiary, the corpus, must be distributed to that beneficiary). On 
February 10, 1996, M makes a gift of M's reversionary interest to D. 
Until M assigns M's reversion in the trust to D, M is deemed to own the 
entire trust under section 673(a) and the trust is a qualified subpart E 
trust. For purposes of section 1361(b)(1), 1366, 1367, and 1368, M is 
the shareholder of X. The trust ceases to be a qualified subpart E trust 
on February 10, 1996. Assuming that, by virtue of the assignment to D of 
M's reversionary interest, D (upon his 21st birthday) or D's estate (in 
the case of D's death before reaching age 21) is entitled under local 
law to receive the trust principal, the trust will be deemed as of 
February 10, 1996, to have satisfied the conditions of section 
1361(d)(3)(A) (ii) and (iv) even though the terms of the trust do not 
explicitly so provide. D must make a QSST election by no later than 
April 25, 1996 (the end of the 16-day-and-2-month period that begins on 
February 10, 1996, the date on which the X stock is deemed transferred 
to the trust by M). See example (5) of Sec.  1.1001-2(c) of the 
regulations.
    Example 8. QSST when the income beneficiary has the power to 
withdraw corpus. On January 1, 1996, F transfers stock of an S 
corporation to an irrevocable trust whose income beneficiary is F's son, 
C. Under the terms of the trust, C is given the noncumulative power to 
withdraw from the corpus of the trust the greater of $5,000 or 5 percent 
of the value of the corpus on a yearly basis. The terms of the trust 
meet the QSST requirements. Assuming the trust distributions are not in 
satisfaction of F's legal obligation to support C, the trust qualifies 
as a QSST. C (or if C is a minor, C's legal representative) must make 
the QSST election no later than March 16, 1996 (the end of the 16-day-
and-2-month period that begins on the date the stock is transferred to 
the trust).
    Example 9. (i) Filing the QSST election. On January 1, 1996, stock 
of Corporation T, a calendar year C corporation, is transferred to a 
trust that satisfies all of the requirements to be a QSST. On January 
31, 1996, Corporation T files an election to be an S corporation that is 
to be effective for its taxable year beginning on January 1, 1996. In 
order for the S election to be effective for the 1996 taxable year, the 
QSST election must be effective January 1, 1996, and must be filed 
within the period beginning on January 1, 1996, and ending March 16, 
1996 (the 16-day-and-2-month period beginning on the first day of the 
first taxable year for which the election to be an S corporation is 
intended to be effective).
    (ii) QSST election when the S election is filed late. Assume the 
same facts as in paragraph (i) of this Example 9, except that 
Corporation T's election to be an S corporation is filed on April 1, 
1996 (after the 15th day of the 3rd month of the first taxable year for 
which it is to be effective but before the end of that taxable year). 
Because the election to be an S corporation is not timely filed for the 
1996 taxable year, under section 1362(b)(3), the S election is treated 
as made for the taxable year beginning on January 1, 1997. The QSST 
election must be filed within the 16-day-and-2-month period beginning on 
April 1, 1996, the date the S election was made, and ending on June 16, 
1996.
    Example 10. (i) Transfers to QTIP trust. On June 1, 1996, A 
transferred S corporation stock to a trust for the benefit of A's spouse 
B, the terms of which satisfy the requirements of section 2523(f)(2) as 
qualified terminable interest property. Under the terms of the trust, B 
is the sole income beneficiary for life. In addition, corpus may be 
distributed to B, at the trustee's discretion, during B's lifetime. 
However, under section 677(a), A is treated as the owner of the trust. 
Accordingly, the trust is a permitted shareholder of the S corporation 
under section 1361(c)(2)(A)(i), and A is treated as the shareholder for 
purposes of sections 1361(b)(1), 1366, 1367, and 1368.
    (ii) Transfers to QTIP trust where husband and wife divorce. Assume 
the same facts as in paragraph (i) of this Example 10, except that A and 
B divorce on May 2, 1997. Under section 682, A ceases to be treated as 
the owner of the trust under section 677(a) because A and B are no 
longer husband and wife. Under section 682, after the divorce, B is the 
income beneficiary of the trust and corpus of the trust may only be 
distributed to B. Accordingly, assuming the trust otherwise meets the 
requirements of section 1361(d)(3), B must make the QSST election within 
2 months and 15 days after the date of the divorce.
    (iii) Transfers to QTIP trust where no corpus distribution is 
permitted. Assume the same facts as in paragraph (i) of this Example 10, 
except that the terms of the trust do not permit corpus to be 
distributed to B and require its retention by the trust for distribution 
to A and B's surviving children after the death of B. Under section 677, 
A is treated as the owner of the ordinary income portion of the trust, 
but the trust will be subject to tax on gross income allocable to 
corpus. Accordingly, the trust does not qualify as an eligible 
shareholder of the S corporation because it is neither a qualified 
subpart E trust nor a QSST.

    (2) Effective date--(i) In general. Paragraph (a) of this section, 
and paragraphs (c) through (k) of this section (as contained in the 26 
CFR edition revised April 1, 2003) apply to taxable years of a 
corporation beginning after

[[Page 846]]

July 21, 1995. For taxable years beginning on or before July 21, 1995, 
to which paragraph (a) of this section and paragraphs (c) through (k) of 
this section (as contained in the 26 CFR edition revised April 1, 2003) 
do not apply, see Sec.  18.1361-1 of this chapter (as contained in the 
26 CFR edition revised April 1, 1995). However, paragraphs (h)(1)(vi), 
(h)(3)(i)(F), (h)(3)(ii), and (j)(12) of this section (as contained in 
the 26 CFR edition revised April 1, 2003) are applicable for taxable 
years beginning on and after May 14, 2002. Otherwise, paragraphs 
(b)(1)(ii), (f), (h)(1)(ii), (h)(1)(iv), (h)(3)(i)(B), (h)(3)(i)(D), 
(h)(3)(ii)(A), (h)(3)(ii)(B), (j)(6)(iii)(C), (j)(6)(iii)(D), 
(j)(7)(ii), and (k)(1) Example 2(ii) fourth and last sentences, Example 
3, and Example 4(iii) of this section apply on and after July 17, 2003. 
Paragraphs (b)(1)(i), (e)(1), (e)(3), (h)(1)(vii), (h)(3)(i)(G), and the 
fifth sentence of paragraph (j)(8) are effective on August 14, 2008.
    (ii) Transition rules. Taxpayers may apply paragraph (h)(1)(iv)(B) 
of this section on and after December 24, 2002, and before July 17, 
2003, to treat a trust as a testamentary trust, but not during any 
period for which a QSST or ESBT election was in effect for the trust. In 
addition, the Internal Revenue Service will not challenge the treatment 
of a trust described in paragraph (h)(1)(iv)(B) of this section as a 
permitted shareholder of an S corporation for periods after August 5, 
1997, and before the earlier of July 17, 2003, or the effective date of 
any QSST or ESBT election for that trust.
    (iii) Exception. If a QSST has sold or otherwise disposed of all or 
a portion of its S corporation stock in a tax year that is open for the 
QSST and the income beneficiary but on or before July 21, 1995, the QSST 
and the income beneficiary may both treat the transaction as if the 
beneficiary was the owner of the stock sold or disposed of, and thus 
recognize any gain or loss, or as if the QSST was the owner of the stock 
sold or disposed of as described in paragraph (j)(8) of this section. 
This exception applies only if the QSST and the income beneficiary take 
consistent reporting positions. The QSST and the income beneficiary must 
disclose by a statement on their respective returns (or amended 
returns), that they are taking consistent reporting positions.
    (l) Classes of stock--(1) General rule. A corporation that has more 
than one class of stock does not qualify as a small business 
corporation. Except as provided in paragraph (l)(4) of this section 
(relating to instruments, obligations, or arrangements treated as a 
second class of stock), a corporation is treated as having only one 
class of stock if all outstanding shares of stock of the corporation 
confer identical rights to distribution and liquidation proceeds. 
Differences in voting rights among shares of stock of a corporation are 
disregarded in determining whether a corporation has more than one class 
of stock. Thus, if all shares of stock of an S corporation have 
identical rights to distribution and liquidation proceeds, the 
corporation may have voting and nonvoting common stock, a class of stock 
that may vote only on certain issues, irrevocable proxy agreements, or 
groups of shares that differ with respect to rights to elect members of 
the board of directors.
    (2) Determination of whether stock confers identical rights to 
distribution and liquidation proceeds--(i) In general. The determination 
of whether all outstanding shares of stock confer identical rights to 
distribution and liquidation proceeds is made based on the corporate 
charter, articles of incorporation, bylaws, applicable state law, and 
binding agreements relating to distribution and liquidation proceeds 
(collectively, the governing provisions). A commercial contractual 
agreement, such as a lease, employment agreement, or loan agreement, is 
not a binding agreement relating to distribution and liquidation 
proceeds and thus is not a governing provision unless a principal 
purpose of the agreement is to circumvent the one class of stock 
requirement of section 1361(b)(1)(D) and this paragraph (l). Although a 
corporation is not treated as having more than one class of stock so 
long as the governing provisions provide for identical distribution and 
liquidation rights, any distributions (including actual, constructive, 
or deemed distributions) that differ in timing or amount are to

[[Page 847]]

be given appropriate tax effect in accordance with the facts and 
circumstances.
    (ii) State law requirements for payment and withholding of income 
tax. State laws may require a corporation to pay or withhold state 
income taxes on behalf of some or all of the corporation's shareholders. 
Such laws are disregarded in determining whether all outstanding shares 
of stock of the corporation confer identical rights to distribution and 
liquidation proceeds, within the meaning of paragraph (l)(1) of this 
section, provided that, when the constructive distributions resulting 
from the payment or withholding of taxes by the corporation are taken 
into account, the outstanding shares confer identical rights to 
distribution and liquidation proceeds. A difference in timing between 
the constructive distributions and the actual distributions to the other 
shareholders does not cause the corporation to be treated as having more 
than one class of stock.
    (iii) Buy-sell and redemption agreements--(A) In general. Buy-sell 
agreements among shareholders, agreements restricting the 
transferability of stock, and redemption agreements are disregarded in 
determining whether a corporation's outstanding shares of stock confer 
identical distribution and liquidation rights unless--
    (1) A principal purpose of the agreement is to circumvent the one 
class of stock requirement of section 1361(b)(1)(D) and this paragraph 
(l), and
    (2) The agreement establishes a purchase price that, at the time the 
agreement is entered into, is significantly in excess of or below the 
fair market value of the stock.

Agreements that provide for the purchase or redemption of stock at book 
value or at a price between fair market value and book value are not 
considered to establish a price that is significantly in excess of or 
below the fair market value of the stock and, thus, are disregarded in 
determining whether the outstanding shares of stock confer identical 
rights. For purposes of this paragraph (l)(2)(iii)(A), a good faith 
determination of fair market value will be respected unless it can be 
shown that the value was substantially in error and the determination of 
the value was not performed with reasonable diligence. Although an 
agreement may be disregarded in determining whether shares of stock 
confer identical distribution and liquidation rights, payments pursuant 
to the agreement may have income or transfer tax consequences.
    (B) Exception for certain agreements. Bona fide agreements to redeem 
or purchase stock at the time of death, divorce, disability, or 
termination of employment are disregarded in determining whether a 
corporation's shares of stock confer identical rights. In addition, if 
stock that is substantially nonvested (within the meaning of Sec.  1.83-
3(b)) is treated as outstanding under these regulations, the forfeiture 
provisions that cause the stock to be substantially nonvested are 
disregarded. Furthermore, the Commissioner may provide by Revenue Ruling 
or other published guidance that other types of bona fide agreements to 
redeem or purchase stock are disregarded.
    (C) Safe harbors for determinations of book value. A determination 
of book value will be respected if--
    (1) The book value is determined in accordance with Generally 
Accepted Accounting Principles (including permitted optional 
adjustments); or
    (2) The book value is used for any substantial nontax purpose.
    (iv) Distributions that take into account varying interests in stock 
during a taxable year. A governing provision does not, within the 
meaning of paragraph (l)(2)(i) of this section, alter the rights to 
liquidation and distribution proceeds conferred by an S corporation's 
stock merely because the governing provision provides that, as a result 
of a change in stock ownership, distributions in a taxable year are to 
be made on the basis of the shareholders' varying interests in the S 
corporation's income in the current or immediately preceding taxable 
year. If distributions pursuant to the provision are not made within a 
reasonable time after the close of the taxable year in which the varying 
interests occur, the distributions may be recharacterized depending on 
the facts and circumstances, but will not result in a second class of 
stock.

[[Page 848]]

    (v) Special rule for section 338(h)(10) elections. If the 
shareholders of an S corporation sell their stock in a transaction for 
which an election is made under section 338(h)(10) and Sec.  
1.338(h)(10)-1, the receipt of varying amounts per share by the 
shareholders will not cause the S corporation to have more than one 
class of stock, provided that the varying amounts are determined in 
arm's length negotiations with the purchaser.
    (vi) Examples. The application of paragraph (l)(2) of this section 
may be illustrated by the following examples. In each of the examples, 
the S corporation requirements of section 1361 are satisfied except as 
otherwise stated, the corporation has in effect an S election under 
section 1362, and the corporation has only the shareholders described.

    Example 1. Determination of whether stock confers identical rights 
to distribution and liquidation proceeds. (i) The law of State A 
requires that permission be obtained from the State Commissioner of 
Corporations before stock may be issued by a corporation. The 
Commissioner grants permission to S, a corporation, to issue its stock 
subject to the restriction that any person who is issued stock in 
exchange for property, and not cash, must waive all rights to receive 
distributions until the shareholders who contributed cash for stock have 
received distributions in the amount of their cash contributions.
    (ii) The condition imposed by the Commissioner pursuant to state law 
alters the rights to distribution and liquidation proceeds conferred by 
the outstanding stock of S so that those rights are not identical. 
Accordingly, under paragraph (l)(2)(i) of this section, S is treated as 
having more than one class of stock and does not qualify as a small 
business corporation.
    Example 2. Distributions that differ in timing. (i) S, a 
corporation, has two equal shareholders, A and B. Under S's bylaws, A 
and B are entitled to equal distributions. S distributes $50,000 to A in 
the current year, but does not distribute $50,000 to B until one year 
later. The circumstances indicate that the difference in timing did not 
occur by reason of a binding agreement relating to distribution or 
liquidation proceeds.
    (ii) Under paragraph (l)(2)(i) of this section, the difference in 
timing of the distributions to A and B does not cause S to be treated as 
having more than one class of stock. However, section 7872 or other 
recharacterization principles may apply to determine the appropriate tax 
consequences.
    Example 3. Treatment of excessive compensation. (i) S, a 
corporation, has two equal shareholders, C and D, who are each employed 
by S and have binding employment agreements with S. The compensation 
paid by S to C under C's employment agreement is reasonable. The 
compensation paid by S to D under D's employment agreement, however, is 
found to be excessive. The facts and circumstances do not reflect that a 
principal purpose to D's employment agreement is to circumvent the one 
class of stock requirement of section 1361(b)(1)(D) and this paragraph 
(l).
    (ii) Under paragraph (l)(2)(i) of this section, the employment 
agreements are not governing provisions. Accordingly, S is not treated 
as having more than one class of stock by reason of the employment 
agreements, even though S is not allowed a deduction for the excessive 
compensation paid to D.
    Example 4. Agreement to pay fringe benefits. (i) S, a corporation, 
is required under binding agreements to pay accident and health 
insurance premiums on behalf of certain of its employees who are also 
shareholders. Different premium amounts are paid by S for each employee-
shareholder. The facts and circumstances do not reflect that a principal 
purpose of the agreements is to circumvent the one class of stock 
requirement of section 1361(b)(1)(D) and this paragraph (l).
    (ii) Under paragraph (l)(2)(i) of this section, the agreements are 
not governing provisions. Accordingly, S is not treated as having more 
than one class of stock by reason of the agreements. In addition, S is 
not treated as having more than one class of stock by reason of the 
payment of fringe benefits.
    Example 5. Below-market corporation-shareholder loan. (i) E is a 
shareholder of S, a corporation. S makes a below-market loan to E that 
is a corporation-shareholder loan to which section 7872 applies. Under 
section 7872, E is deemed to receive a distribution with respect to S 
stock by reason of the loan. The facts and circumstances do not reflect 
that a principal purpose of the loan is to circumvent the one class of 
stock requirement of section 1361(b)(1)(D) and this paragraph (l).
    (ii) Under paragraph (l)(2)(i) of this section, the loan agreement 
is not a governing provision. Accordingly, S is not treated as having 
more than one class of stock by reason of the below-market loan to E.
    Example 6. Agreement to adjust distributions for state tax burdens. 
(i) S, a corporation, executes a binding agreement with its shareholders 
to modify its normal distribution policy by making upward adjustments of 
its distributions to those shareholders who bear heavier state tax 
burdens. The adjustments are based on a formula that will give the 
shareholders equal after-tax distributions.

[[Page 849]]

    (ii) The binding agreement relates to distribution or liquidation 
proceeds. The agreement is thus a governing provision that alters the 
rights conferred by the outstanding stock of S to distribution proceeds 
so that those rights are not identical. Therefore, under paragraph 
(l)(2)(i) of this section, S is treated as having more than one class of 
stock.
    Example 7. State law requirements for payment and withholding of 
income tax. (i) The law of State X requires corporations to pay state 
income taxes on behalf of nonresident shareholders. The law of State X 
does not require corporations to pay state income taxes on behalf of 
resident shareholders. S is incorporated in State X. S's resident 
shareholders have the right (for example, under the law of State X or 
pursuant to S's bylaws or a binding agreement) to distributions that 
take into account the payments S makes on behalf of its nonresident 
shareholders.
    (ii) The payment by S of state income taxes on behalf of its 
nonresident shareholders are generally treated as constructive 
distributions to those shareholders. Because S's resident shareholders 
have the right to equal distributions, taking into account the 
constructive distributions to the nonresident shareholders, S's shares 
confer identical rights to distribution proceeds. Accordingly, under 
paragraph (l)(2)(ii) of this section, the state law requiring S to pay 
state income taxes on behalf of its nonresident shareholders is 
disregarded in determining whether S has more than one class of stock.
    (iii) The same result would follow if the payments of state income 
taxes on behalf of nonresident shareholders are instead treated as 
advances to those shareholders and the governing provisions require the 
advances to be repaid or offset by reductions in distributions to those 
shareholders.
    Example 8. Redemption agreements. (i) F, G, and H are shareholders 
of S, a corporation. F is also an employee of S. By agreement, S is to 
redeem F's shares on the termination of F's employment.
    (ii) On these facts, under paragraph (l)(2)(iii)(B) of this section, 
the agreement is disregarded in determining whether all outstanding 
shares of S's stock confer identical rights to distribution and 
liquidation proceeds.
    Example 9. Analysis of redemption agreements. (i) J, K, and L are 
shareholders of S, a corporation. L is also an employee of S. L's shares 
were not issued to L in connection with the performance of services. By 
agreement, S is to redeem L's shares for an amount significantly below 
their fair market value on the termination of L's employment or if S's 
sales fall below certain levels.
    (ii) Under paragraph (l)(2)(iii)(B) of this section, the portion of 
the agreement providing for redemption of L's stock on termination of 
employment is disregarded. Under paragraph (l)(2)(iii)(A), the portion 
of the agreement providing for redemption of L's stock if S's sales fall 
below certain levels is disregarded unless a principal purpose of that 
portion of the agreement is to circumvent the one class of stock 
requirement of section 1361(b)(1)(D) and this paragraph (l).

    (3) Stock taken into account. Except as provided in paragraphs (b) 
(3), (4), and (5) of this section (relating to restricted stock, 
deferred compensation plans, and straight debt), in determining whether 
all outstanding shares of stock confer identical rights to distribution 
and liquidation proceeds, all outstanding shares of stock of a 
corporation are taken into account. For example, substantially nonvested 
stock with respect to which an election under section 83(b) has been 
made is taken into account in determining whether a corporation has a 
second class of stock, and such stock is not treated as a second class 
of stock if the stock confers rights to distribution and liquidation 
proceeds that are identical, within the meaning of paragraph (l)(1) of 
this section, to the rights conferred by the other outstanding shares of 
stock.
    (4) Other instruments, obligations, or arrangements treated as a 
second class of stock--(i) In general. Instruments, obligations, or 
arrangements are not treated as a second class of stock for purposes of 
this paragraph (l) unless they are described in paragraph (l)(5) (ii) or 
(iii) of this section. However, in no event are instruments, 
obligations, or arrangements described in paragraph (b)(4) of this 
section (relating to deferred compensation plans), paragraphs 
(l)(4)(iii) (B) and (C) of this section (relating to the exceptions and 
safe harbor for options), paragraph (l)(4)(ii)(B) of this section 
(relating to the safe harbors for certain short-term unwritten advances 
and proportionally-held debt), or paragraph (l)(5) of this section 
(relating to the safe harbor for straight debt), treated as a second 
class of stock for purposes of this paragraph (l).
    (ii) Instruments, obligations, or arrangements treated as equity 
under general principles--(A) In general. Except as provided in 
paragraph (l)(4)(i) of this section, any instrument, obligation, or 
arrangement issued by a corporation (other than outstanding shares of 
stock described in paragraph (l)(3) of this section), regardless of 
whether designated

[[Page 850]]

as debt, is treated as a second class of stock of the corporation--
    (1) If the instrument, obligation, or arrangement constituters 
equity or otherwise results in the holder being treated as the owner of 
stock under general principles of Federal tax law; and
    (2) A principal purpose of issuing or entering into the instrument, 
obligation, or arrangement is to circumvent the rights to distribution 
or liquidation proceeds conferred by the outstanding shares of stock or 
to circumvent the limitation on eligible shareholders contained in 
paragraph (b)(1) of this section.
    (B) Safe harbor for certain short-term unwritten advances and 
proportionately held obligations--(1) Short-term unwritten advances. 
Unwritten advances from a shareholder that do not exceed $10,000 in the 
aggregate at any time during the taxable year of the corporation, are 
treated as debt by the parties, and are expected to be repaid within a 
reasonable time are not treated as a second class of stock for that 
taxable year, even if the advances are considered equity under general 
principles of Federal tax law. The failure of an unwritten advance to 
meet this safe harbor will not result in a second class of stock unless 
the advance is considered equity under paragraph (l)(4)(ii)(A)(1) of 
this section and a principal purpose of the advance is to circumvent the 
rights of the outstanding shares of stock or the limitation on eligible 
shareholders under paragraph (l)(4)(ii)(A)(2) of this section.
    (2) Proportionately-held obligations. Obligations of the same class 
that are considered equity under general principles of Federal tax law, 
but are owned solely by the owners of, and in the same proportion as, 
the outstanding stock of the corporation, are not treated as a second 
class of stock. Furthermore, an obligation or obligations owned by the 
sole shareholder of a corporation are always held proportionately to the 
corporation's outstanding stock. The obligations that are considered 
equity that do not meet this safe harbor will not result in a second 
class of stock unless a principal purpose of the obligations is to 
circumvent the rights of the outstanding shares of stock or the 
limitation on eligible shareholders under paragraph (l)(4)(ii)(A)(2) of 
this section.
    (iii) Certain call options, warrants or similar instruments--(A) In 
general. Except as otherwise provided in this paragraph (l)(4)(iii), a 
call option, warrant, or similar instrument (collectively, call option) 
issued by a corporation is treated as a second class of stock of the 
corporation if, taking into account all the facts and circumstances, the 
call option is substantially certain to be exercised (by the holder or a 
potential transferee) and has a strike price substantially below the 
fair market value of the underlying stock on the date that the call 
option is issued, transferred by a person who is an eligible shareholder 
under paragraph (b)(1) of this section to a person who is not an 
eligible shareholder under paragraph (b)(1) of this section, or 
materially modified. For purposes of this paragraph (l)(4)(iii), if an 
option is issued in connection with a loan and the time period in which 
the option can be exercised is extended in connection with (and 
consistent with) a modification of the terms of the loan, the extension 
of the time period in which the option may be exercised is not 
considered a material modification. In addition, a call option does not 
have a strike price substantially below fair market value if the price 
at the time of exercise cannot, pursuant to the terms of the instrument, 
be substantially below the fair market value of the underlying stock at 
the time of exercise.
    (B) Certain exceptions. (1) A call option is not treated as a second 
class of stock for purposes of this paragraph (l) if it is issued to a 
person that is actively and regularly engaged in the business of lending 
and issued in connection with a commercially reasonable loan to the 
corporation. This paragraph (l)(4)(iii)(B)(1) continues to apply if the 
call option is transferred with the loan (or if a portion of the call 
option is transferred with a corresponding portion of the loan). 
However, if the call option is transferred without a corresponding 
portion of the loan, this paragraph (l)(4)(iii)(B)(1) ceases to apply. 
Upon that transfer, the call option is tested under paragraph 
(l)(4)(iii)(A) (notwithstanding anything

[[Page 851]]

in that paragraph to the contrary) if, but for this paragraph, the call 
option would have been treated as a second class of stock on the date it 
was issued.
    (2) A call option that is issued to an individual who is either an 
employee or an independent contractor in connection with the performance 
of services for the corporation or a related corporation (and that is 
not excessive by reference to the services performed) is not treated as 
a second class of stock for purposes of this paragraph (l) if--
    (i) The call option is nontransferable within the meaning of Sec.  
1.83-3(d); and
    (ii) The call option does not have a readily ascertainable fair 
market value as defined in Sec.  1.83-7(b) at the time the option is 
issued.

If the call option becomes transferable, this paragraph 
(l)(4)(iii)(B)(2) ceases to apply. Solely for purposes of this paragraph 
(l)(4)(iii)(B)(2), a corporation is related to the issuing corporation 
if more than 50 percent of the total voting power and total value of its 
stock is owned by the issuing corporation.
    (3) The Commissioner may provide other exceptions by Revenue Ruling 
or other published guidance.
    (C) Safe harbor for certain options. A call option is not treated as 
a second class of stock if, on the date the call option is issued, 
transferred by a person who is an eligible shareholder under paragraph 
(b)(1) of this section to a person who is not an eligible shareholder 
under paragraph (b)(1) of this section, or materially modified, the 
strike price of the call option is at least 90 percent of the fair 
market value of the underlying stock on that date. For purposes of this 
paragraph (l)(4)(iii)(C), a good faith determination of fair market 
value by the corporation will be respected unless it can be shown that 
the value was substantially in error and the determination of the value 
was not performed with reasonable diligence to obtain a fair value. 
Failure of an option to meet this safe harbor will not necessarily 
result in the option being treated as a second class of stock.
    (iv) Convertible debt. A convertible debt instrument is considered a 
second class of stock if--
    (A) It would be treated as a second class of stock under paragraph 
(l)(4)(ii) of this section (relating to instruments, obligations, or 
arrangements treated as equity under general principles); or
    (B) It embodies rights equivalent to those of a call option that 
would be treated as a second class of stock under paragraph (l)(4)(iii) 
of this section (relating to certain call options, warrants, and similar 
instruments).
    (v) Examples. The application of this paragraph (l)(4) may be 
illustrated by the following examples. In each of the examples, the S 
corporation requirements of section 1361 are satisfied except as 
otherwise stated, the corporation has in effect an S election under 
section 1362, and the corporation has only the shareholders described.

    Example 1. Transfer of call option by eligible shareholder to 
ineligible shareholder. (i) S, a corporation, has 10 shareholders. S 
issues call options to A, B, and C, individuals who are U.S. residents. 
A, B, and C are not shareholders, employees, or independent contractors 
of S. The options have a strike price of $40 and are issued on a date 
when the fair market value of S stock is also $40. A year later, P, a 
partnership, purchases A's option. On the date of transfer, the fair 
market value of S stock is $80.
    (ii) On the date the call option is issued, its strike price is not 
substantially below the fair market value of the S stock. Under 
paragraph (l)(4)(iii)(A) of this section, whether a call option is a 
second class of stock must be redetermined if the call option is 
transferred by a person who is an eligible shareholder under paragraph 
(b)(1) of this section to a person who is not an eligible shareholder 
under paragraph (b)(1) of this section. In this case, A is an eligible 
shareholder of S under paragraph (b)(1) of this section, but P is not. 
Accordingly, the option is retested on the date it is transferred to D.
    (iii) Because on the date the call option is transferred to P its 
strike price is 50% of the fair market value, the strike price is 
substantially below the fair market value of the S stock. Accordingly, 
the call option is treated as a second class of stock as of the date it 
is transferred to P if, at that time, it is determined that the option 
is substantially certain to be exercised. The determination of whether 
the option is substantially certain to be exercised is made on the basis 
of all the facts and circumstances.
    Example 2. Call option issued in connection with the performance of 
services. (i) E is a bona fide employee of S, a corporation. S issues to 
E a call option in connection with E's performance of services. At the 
time the call option is issued, it is not transferable and does not have 
a readily ascertainable fair market

[[Page 852]]

value. However, the call option becomes transferable before it is 
exercised by E.
    (ii) While the option is not transferable, under paragraph 
(l)(4)(iii)(B)(2) of this section, it is not treated as a second class 
of stock, regardless of its strike price. When the option becomes 
transferable, that paragraph ceases to apply, and the general rule of 
paragraph (l)(4)(iii)(A) of this section applies. Accordingly, if the 
option is materially modified or is transferred to a person who is not 
an eligible shareholder under paragraph (b)(1) of this section, and on 
the date of such modification or transfer, the option is substantially 
certain to be exercised and has a strike price substantially below the 
fair market value of the underlying stock, the option is treated as a 
second class of stock.
    (iii) If E left S's employment before the option became 
transferable, the exception provided by paragraph (l)(4)(iii)(B)(2) 
would continue to apply until the option became transferable.

    (5) Straight debt safe harbor--(i) In general. Notwithstanding 
paragraph (l)(4) of this section, straight debt is not treated as a 
second class of stock. For purposes of section 1361(c)(5) and this 
section, the term straight debt means a written unconditional 
obligation, regardless of whether embodied in a formal note, to pay a 
sum certain on demand, or on a specified due date, which--
    (A) Does not provide for an interest rate or payment dates that are 
contingent on profits, the borrower's discretion, the payment of 
dividends with respect to common stock, or similar factors;
    (B) Is not convertible (directly or indirectly) into stock or any 
other equity interest of the S corporation; and
    (C) Is held by an individual (other than a nonresident alien), an 
estate, or a trust described in section 1361(c)(2).
    (ii) Subordination. The fact that an obligation is subordinated to 
other debt of the corporation does not prevent the obligation from 
qualifying as straight debt.
    (iii) Modification or transfer. An obligation that originally 
qualifies as straight debt ceases to so qualify if the obligation--
    (A) Is materially modified so that it no longer satisfies the 
definition of straight debt; or
    (B) Is transferred to a third party who is not an eligible 
shareholder under paragraph (b)(1) of this section.
    (iv) Treatment of straight debt for other purposes. An obligation of 
an S corporation that satisfies the definition of straight debt in 
paragraph (l)(5)(i) of this section is not treated as a second class of 
stock even if it is considered equity under general principles of 
Federal tax law. Such an obligation is generally treated as debt and 
when so treated is subject to the applicable rules governing 
indebtedness for other purposes of the Code. Accordingly, interest paid 
or accrued with respect to a straight debt obligation is generally 
treated as interest by the corporation and the recipient and does not 
constitute a distribution to which section 1368 applies. However, if a 
straight debt obligation bears a rate of interest that is unreasonably 
high, an appropriate portion of the interest may be recharacterized and 
treated as a payment that is not interest. Such a recharacterization 
does not result in a second class of stock.
    (v) Treatment of C corporation debt upon conversion to S status. If 
a C corporation has outstanding an obligation that satisfies the 
definition of straight debt in paragraph (l)(5)(i) of this section, but 
that is considered equity under general principles of Federal tax law, 
the obligation is not treated as a second class of stock for purposes of 
this section if the C corporation converts to S status. In addition, the 
conversion from C corporation status to S corporation status is not 
treated as an exchange of debt for stock with respect to such an 
instrument.
    (6) Inadvertent terminations. See section 1362(f) and the 
regulations thereunder for rules relating to inadvertent terminations in 
cases where the one class of stock requirement has been inadvertently 
breached.
    (7) Effective date. Section 1.1361-1(l) generally applies to taxable 
years of a corporation beginning on or after May 28, 1992. However, 
Sec.  1.1361-1(l) does not apply to: an instrument, obligation, or 
arrangement issued or entered into before May 28, 1992, and not 
materially modified after that date; a buy-sell agreement, redemption 
agreement, or agreement restricting transferability entered into before 
May 28, 1992, and not materially modified after that

[[Page 853]]

date; or a call option or similar instrument issued before May 28, 1992, 
and not materially modified after that date. In addition, a corporation 
and its shareholders may apply this Sec.  1.1361-1(l) to prior taxable 
years.
    (m) Electing small business trust (ESBT)--(1) Definition--(i) 
General rule. An electing small business trust (ESBT) means any trust if 
it meets the following requirements: the trust does not have as a 
beneficiary any person other than an individual, an estate, an 
organization described in section 170(c)(2) through (5), or an 
organization described in section 170(c)(1) that holds a contingent 
interest in such trust and is not a potential current beneficiary; no 
interest in the trust has been acquired by purchase; and the trustee of 
the trust makes a timely ESBT election for the trust.
    (ii) Qualified beneficiaries--(A) In general. For purposes of this 
section, a beneficiary includes a person who has a present, remainder, 
or reversionary interest in the trust.
    (B) Distributee trusts. A distributee trust is the beneficiary of 
the ESBT only if the distributee trust is an organization described in 
section 170(c)(2) or (3). In all other situations, any person who has a 
beneficial interest in a distributee trust is a beneficiary of the ESBT. 
A distributee trust is a trust that receives or may receive a 
distribution from an ESBT, whether the rights to receive the 
distribution are fixed or contingent, or immediate or deferred.
    (C) Powers of appointment. A person in whose favor a power of 
appointment could be exercised is not a beneficiary of an ESBT until the 
holder of the power of appointment actually exercises the power in favor 
of such person.
    (D) Nonresident aliens. A nonresident alien (NRA), as defined in 
section 7701(b)(1)(B), is an eligible beneficiary of an ESBT and an 
eligible potential current beneficiary.
    (iii) Interests acquired by purchase. A trust does not qualify as an 
ESBT if any interest in the trust has been acquired by purchase. 
Generally, if a person acquires an interest in the trust and thereby 
becomes a beneficiary of the trust as defined in paragraph 
(m)(1)(ii)(A), and any portion of the basis in the acquired interest in 
the trust is determined under section 1012, such interest has been 
acquired by purchase. This includes a net gift of a beneficial interest 
in the trust, in which the person acquiring the beneficial interest pays 
the gift tax. The trust itself may acquire S corporation stock or other 
property by purchase or in a part-gift, part-sale transaction.
    (iv) Ineligible trusts. An ESBT does not include--
    (A) Any qualified subchapter S trust (as defined in section 
1361(d)(3)) if an election under section 1361(d)(2) applies with respect 
to any corporation the stock of which is held by the trust;
    (B) Any trust exempt from tax or not subject to tax under subtitle 
A; or
    (C) Any charitable remainder annuity trust or charitable remainder 
unitrust (as defined in section 664(d)).
    (2) ESBT election--(i) In general. The trustee of the trust must 
make the ESBT election by signing and filing, with the service center 
where the S corporation files its income tax return, a statement that 
meets the requirements of paragraph (m)(2)(ii) of this section. If there 
is more than one trustee, the trustee or trustees with authority to 
legally bind the trust must sign the election statement. If any one of 
several trustees can legally bind the trust, only one trustee needs to 
sign the election statement. Generally, only one ESBT election is made 
for the trust, regardless of the number of S corporations whose stock is 
held by the ESBT. However, if the ESBT holds stock in multiple S 
corporations that file in different service centers, the ESBT election 
must be filed with all the relevant service centers where the 
corporations file their income tax returns. This requirement applies 
only at the time of the initial ESBT election; if the ESBT later 
acquires stock in an S corporation which files its income tax return at 
a different service center, a new ESBT election is not required.
    (ii) Election statement. The election statement must include--
    (A) The name, address, and taxpayer identification number of the 
trust, the potential current beneficiaries, and the S corporations in 
which the trust currently holds stock. If the trust includes a power 
described in paragraph

[[Page 854]]

(m)(4)(vi)(B) of this section, then the election statement must include 
a statement that such a power is included in the instrument, but does 
not need to include the name, address, or taxpayer identification number 
of any particular charity or any other information regarding the power.
    (B) An identification of the election as an ESBT election made under 
section 1361(e)(3);
    (C) The first date on which the trust owned stock in each S 
corporation;
    (D) The date on which the election is to become effective (not 
earlier than 15 days and two months before the date on which the 
election is filed); and
    (E) Representations signed by the trustee stating that--
    (1) The trust meets the definitional requirements of section 
1361(e)(1); and
    (2) All potential current beneficiaries of the trust meet the 
shareholder requirements of section 1361(b)(1); for the purpose of this 
paragraph (m)(2)(ii)(E)(2), an NRA potential current beneficiary does 
not violate the requirement under section 1361(b)(1)(C) that an S 
corporation cannot have an NRA as a shareholder.
    (iii) Due date for ESBT election. The ESBT election must be filed 
within the time requirements prescribed in paragraph (j)(6)(iii) of this 
section for filing a qualified subchapter S trust (QSST) election.
    (iv) Election by a trust described in section 1361(c)(2)(A)(ii) or 
(iii). A trust that is a qualified S corporation shareholder under 
section 1361(c)(2)(A)(ii) or (iii) may elect ESBT treatment at any time 
during the 2-year period described in those sections or the 16-day-and-
2-month period beginning on the date after the end of the 2-year period. 
If the trust makes an ineffective ESBT election, the trust will continue 
nevertheless to qualify as an eligible S corporation shareholder for the 
remainder of the period described in section 1361(c)(2)(A)(ii) or (iii).
    (v) No protective election. A trust cannot make a conditional ESBT 
election that would be effective only in the event the trust fails to 
meet the requirements for an eligible trust described in section 
1361(c)(2)(A)(i) through (iv). If a trust attempts to make such a 
conditional ESBT election and it fails to qualify as an eligible S 
corporation shareholder under section 1361(c)(2)(A)(i) through (iv), the 
S corporation election will be ineffective or will terminate because the 
corporation will have an ineligible shareholder. Relief may be available 
under section 1362(f) for an inadvertent ineffective S corporation 
election or an inadvertent S corporation election termination. In 
addition, a trust that qualifies as an ESBT may make an ESBT election 
notwithstanding that the trust is a wholly-owned grantor trust.
    (3) Effect of ESBT election--(i) General rule. If a trust makes a 
valid ESBT election, the trust will be treated as an ESBT for purposes 
of chapter 1 of the Internal Revenue Code as of the effective date of 
the ESBT election.
    (ii) Employer Identification Number. An ESBT has only one employer 
identification number (EIN). If an existing trust makes an ESBT 
election, the trust continues to use the EIN it currently uses.
    (iii) Taxable year. If an ESBT election is effective on a day other 
than the first day of the trust's taxable year, the ESBT election does 
not cause the trust's taxable year to close. The termination of the ESBT 
election (including a termination caused by a conversion of the ESBT to 
a QSST) other than on the last day of the trust's taxable year also does 
not cause the trust's taxable year to close. In either case, the trust 
files one tax return for the taxable year.
    (iv) Allocation of S corporation items. If, during the taxable year 
of an S corporation, a trust is an ESBT for part of the year and an 
eligible shareholder under section 1361(c)(2)(A)(i) through (iv) for the 
rest of the year, the S corporation items are allocated between the two 
types of trusts under section 1377(a). See Sec.  1.1377-1(a)(2)(iii).
    (v) Estimated taxes. If an ESBT election is effective on a day other 
than the first day of the trust's taxable year, the trust is considered 
one trust for purposes of estimated taxes under section 6654.
    (4) Potential current beneficiaries--(i) In general. For purposes of 
determining whether a corporation is a small business corporation within 
the meaning of

[[Page 855]]

section 1361(b)(1), each potential current beneficiary of an ESBT 
generally is treated as a shareholder of the corporation. Subject to the 
provisions of this paragraph (m)(4), a potential current beneficiary 
generally is, with respect to any period, any person who at any time 
during such period is entitled to, or in the discretion of any person 
may receive, a distribution from the principal or income of the trust. A 
person is treated as a shareholder of the S corporation at any moment in 
time when that person is entitled to, or in the discretion of any person 
may, receive a distribution of principal or income of the trust. No 
person is treated as a potential current beneficiary solely because that 
person holds any future interest in the trust. An NRA potential current 
beneficiary of an ESBT is treated as a shareholder for purposes of the 
100-shareholder limit under section 1361(b)(1)(A). However, an NRA 
potential current beneficiary of an ESBT is not treated as a shareholder 
in determining whether a corporation is a small business corporation for 
purposes of the NRA-shareholder prohibition under section 1361(b)(1)(C).
    (ii) Grantor trusts. If all or a portion of an ESBT is treated as 
owned by a person under subpart E, part I, subchapter J, chapter 1 of 
the Internal Revenue Code, such owner is a potential current beneficiary 
in addition to persons described in paragraph (m)(4)(i) of this section.
    (iii) Special rule for dispositions of stock. Notwithstanding the 
provisions of paragraph (m)(4)(i) of this section, if a trust disposes 
of all of the stock which it holds in an S corporation, then, with 
respect to that corporation, any person who first met the definition of 
a potential current beneficiary during the 1-year period ending on the 
date of such disposition is not a potential current beneficiary and thus 
is not a shareholder of that corporation.
    (iv) Distributee trusts--(A) In general. This paragraph (m)(4)(iv) 
contains the rules for determining who are the potential current 
beneficiaries of an ESBT if a distributee trust becomes entitled to, or 
at the discretion of any person, may receive a distribution from 
principal or income of an ESBT. A distributee trust does not include a 
trust that is not currently in existence. For this purpose, a trust is 
not currently in existence if the trust has no assets and no items of 
income, loss, deduction, or credit. Thus, if a trust instrument provides 
for a trust to be funded at some future time, the future trust is not 
currently a distributee trust.
    (B) If the distributee trust is not a trust described in section 
1361(c)(2)(A), then the distributee trust is the potential current 
beneficiary of the ESBT and the corporation's S corporation election 
terminates.
    (C) If the distributee trust is a trust described in section 
1361(c)(2)(A), the persons who would be its potential current 
beneficiaries (as defined in paragraphs (m)(4)(i) and (ii) of this 
section) if the distributee trust were an ESBT are treated as the 
potential current beneficiaries of the ESBT. Notwithstanding the 
preceding sentence, however, if the distributee trust is a trust 
described in section 1361(c)(2)(A)(ii) or (iii), the estate described in 
section 1361(c)(2)(B) (ii) or (iii) is treated as the potential current 
beneficiary of the ESBT for the 2-year period during which such trust 
would be permitted as a shareholder.
    (D) For the purposes of paragraph (m)(4)(iv)(C) of this section, a 
trust will be deemed to be described in section 1361(c)(2)(A) if such 
trust would qualify for a QSST election under section 1361(d) or an ESBT 
election under section 1361(e) if it owned S corporation stock.
    (v) Contingent distributions. A person who is entitled to receive a 
distribution only after a specified time or upon the occurrence of a 
specified event (such as the death of the holder of a power of 
appointment) is not a potential current beneficiary until such time or 
the occurrence of such event.
    (vi) Currently exercisable powers of appointment and other powers--
(A) Powers of appointment. A person to whom a distribution may be made 
during any period pursuant to a power of appointment (as described for 
transfer tax purposes in section 2041 and Sec.  20.2041-1(b) of this 
chapter and section 2514 and Sec.  25.2514-1(b) of this chapter) is not 
a potential current beneficiary unless the power is exercised in favor 
of that

[[Page 856]]

person during the period. It is immaterial for purposes of this 
paragraph (m)(4)(vi)(A) whether such power of appointment is a ``general 
power of appointment'' for transfer tax purposes as described in 
Sec. Sec.  20.2041-1(c) and 25.2514-1(c) of this chapter. The mere 
existence of one or more powers of appointment during the lifetime of a 
power holder that would permit current distributions from the trust to 
be made to more than the number of persons described in section 
1361(b)(1)(A) or to a person described in section 1361(b)(1)(B) or (C) 
will not cause the S corporation election to terminate unless one or 
more of such powers are exercised, collectively, in favor of an 
excessive number of persons or in favor of a person who is ineligible to 
be an S corporation shareholder. For purposes of this paragraph 
(m)(4)(vi)(A), a ``power of appointment'' includes a power, regardless 
of by whom held, to add a beneficiary or class of beneficiaries to the 
class of potential current beneficiaries, but generally does not include 
a power held by a fiduciary who is not also a beneficiary of the trust 
to spray or sprinkle trust distributions among beneficiaries. Nothing in 
this paragraph (m)(4)(vi)(A) alters the definition of ``power of 
appointment'' for purposes of any provision of the Internal Revenue Code 
or the regulations.
    (B) Powers to distribute to certain organizations not pursuant to 
powers of appointment. If a trustee or other fiduciary has a power (that 
does not constitute a power of appointment for transfer tax purposes as 
described in Sec. Sec.  20.2041-1(b) and 25.2514-1(b) of this chapter) 
to make distributions from the trust to one or more members of a class 
of organizations described in section 1361(c)(6), such organizations 
will be counted collectively as only one potential current beneficiary 
for purposes of this paragraph (m), except that each organization 
receiving a distribution also will be counted as a potential current 
beneficiary. This paragraph (m)(4)(vi)(B) shall not apply to a power to 
currently distribute to one or more particular charitable organizations 
described in section 1361(c)(6). Each of such organizations is a 
potential current beneficiary of the trust.
    (vii) Number of shareholders. Each potential current beneficiary of 
the ESBT, as defined in paragraphs (m)(4)(i) through (vi) of this 
section, is counted as a shareholder of any S corporation whose stock is 
owned by the ESBT. During any period in which the ESBT has no potential 
current beneficiaries, the ESBT is counted as the shareholder. A person 
is counted as only one shareholder of an S corporation even though that 
person may be treated as a shareholder of the S corporation by direct 
ownership and through one or more eligible trusts described in section 
1361(c)(2)(A). Thus, for example, if a person owns stock in an S 
corporation and is a potential current beneficiary of an ESBT that owns 
stock in the same S corporation, that person is counted as one 
shareholder of the S corporation. Similarly, if a husband owns stock in 
an S corporation and his wife is a potential current beneficiary of an 
ESBT that owns stock in the same S corporation, the husband and wife 
will be counted as one shareholder of the S corporation.
    (viii) Miscellaneous. Payments made by an ESBT to a third party on 
behalf of a beneficiary are considered to be payments made directly to 
the beneficiary. The right of a beneficiary to assign the beneficiary's 
interest to a third party does not result in the third party being a 
potential current beneficiary until that interest is actually assigned.
    (5) ESBT terminations--(i) Ceasing to meet ESBT requirements. A 
trust ceases to be an ESBT on the first day the trust fails to meet the 
definition of an ESBT under section 1361(e). The last day the trust is 
treated as an ESBT is the day before the date on which the trust fails 
to meet the definition of an ESBT.
    (ii) Disposition of S stock. In general, a trust ceases to be an 
ESBT on the first day following the day the trust disposes of all S 
corporation stock. However, if the trust is using the installment method 
to report income from the sale or disposition of its stock in an S 
corporation, the trust ceases to be an ESBT on the day following the 
earlier of the day the last installment payment is received by the trust 
or the

[[Page 857]]

day the trust disposes of the installment obligation.
    (iii) Potential current beneficiaries that are ineligible 
shareholders. If a potential current beneficiary of an ESBT is not an 
eligible shareholder of a small business corporation within the meaning 
of section 1361(b)(1), the S corporation election terminates. For 
example, the S corporation election will terminate if a charitable 
remainder trust becomes a potential current beneficiary of an ESBT. Such 
a potential current beneficiary is treated as an ineligible shareholder 
beginning on the day such person becomes a potential current 
beneficiary, and the S corporation election terminates on that date. 
However, see the special rule of paragraph (m)(4)(iii) of this section. 
If the S corporation election terminates, relief may be available under 
section 1362(f).
    (6) Revocation of ESBT election. An ESBT election may be revoked 
only with the consent of the Commissioner. The application for consent 
to revoke the election must be submitted to the Internal Revenue Service 
in the form of a letter ruling request under the appropriate revenue 
procedure.
    (7) Converting an ESBT to a QSST. For a trust that seeks to convert 
from an ESBT to a QSST, the consent of the Commissioner is hereby 
granted to revoke the ESBT election as of the effective date of the QSST 
election, if all the following requirements are met:
    (i) The trust meets all of the requirements to be a QSST under 
section 1361(d).
    (ii) The trustee and the current income beneficiary of the trust 
sign the QSST election. The QSST election must be filed with the service 
center where the S corporation files its income tax return. This QSST 
election must state at the top of the document ``ATTENTION ENTITY 
CONTROL--CONVERSION OF AN ESBT TO A QSST PURSUANT TO SECTION 1.1361-
1(m)'' and include all information otherwise required for a QSST 
election under Sec.  1.1361-1(j)(6). A separate QSST election must be 
made with respect to the stock of each S corporation held by the trust.
    (iii) The trust has not converted from a QSST to an ESBT within the 
36-month period preceding the effective date of the new QSST election.
    (iv) The date on which the QSST election is to be effective cannot 
be more than 15 days and two months prior to the date on which the 
election is filed and cannot be more than 12 months after the date on 
which the election is filed. If an election specifies an effective date 
more than 15 days and two months prior to the date on which the election 
is filed, it will be effective on the day that is 15 days and two months 
prior to the date on which it is filed. If an election specifies an 
effective date more than 12 months after the date on which the election 
is filed, it will be effective on the day that is 12 months after the 
date it is filed.
    (8) Examples. The provisions of this paragraph (m) are illustrated 
by the following examples in which it is assumed, unless otherwise 
specified, that all noncorporate persons are citizens or residents of 
the United States:
    (i) Example 1--(A) ESBT election with section 663(c) separate 
shares. On January 1, 2003, M contributes S corporation stock to Trust 
for the benefit of M's three children A, B, and C. Pursuant to section 
663(c), each of Trust's separate shares for A, B, and C will be treated 
as separate trusts for purposes of determining the amount of 
distributable net income (DNI) in the application of sections 661 and 
662. On January 15, 2003, the trustee of Trust files a valid ESBT 
election for Trust effective January 1, 2003. Trust will be treated as a 
single ESBT and will have a single S portion taxable under section 
641(c).
    (B) ESBT acquires stock of an additional S corporation. On February 
15, 2003, Trust acquires stock of an additional S corporation. Because 
Trust is already an ESBT, Trust does not need to make an additional ESBT 
election.
    (C) Section 663(c) shares of ESBT convert to separate QSSTs. 
Effective January 1, 2004, A, B, C, and Trust's trustee elect to convert 
each separate share of Trust into a separate QSST pursuant to paragraph 
(m)(7) of this section. For each separate share, they file a separate 
election for each S corporation whose stock is held by Trust. Each 
separate share will be treated as a separate QSST.


[[Page 858]]


    (ii) Example 2--(A) Invalid potential current beneficiary. Effective 
January 1, 2005, Trust makes a valid ESBT election. On January 1, 2006, 
A, a partnership, becomes a potential current beneficiary of Trust. 
Trust does not dispose of all of its S corporation stock within one year 
after January 1, 2006. As of January 1, 2006, A is the potential current 
beneficiary of Trust and therefore is treated as a shareholder of the S 
corporation. Because A is not an eligible shareholder of an S 
corporation under section 1361(b)(1), the S corporation election of any 
corporation in which Trust holds stock terminates effective January 1, 
2006. Relief may be available under section 1362(f).
    (B) Invalid potential current beneficiary and disposition of S 
stock. Assume the same facts as in Example 2 in paragraph (m)(8)(ii)(A) 
of this section except that within one year after January 1, 2006, 
trustee of Trust disposes of all Trust's S corporation stock. A is not 
considered a potential current beneficiary of Trust and therefore is not 
treated as a shareholder of any S corporation in which Trust previously 
held stock.
    (iii) Example 3. Subpart E trust. M transfers stock in X, an S 
corporation, and other assets to Trust for the benefit of B and B's 
siblings. M retains no powers or interest in Trust. Under section 
678(a), B is treated as the owner of a portion of Trust that includes a 
portion of the X stock. No beneficiary has acquired any portion of his 
or her interest in Trust by purchase, and Trust is not an ineligible 
trust under paragraph (m)(1)(iv) of this section. Trust is eligible to 
make an ESBT election.
    (iv) Example 4. Subpart E trust continuing after grantor's death. On 
January 1, 2003, M transfers stock in X, an S corporation, and other 
assets to Trust. Under the terms of Trust, the trustee of Trust has 
complete discretion to distribute the income or principal to M during 
M's lifetime and to M's children upon M's death. During M's life, M is 
treated as the owner of Trust under section 677. The trustee of Trust 
makes a valid election to treat Trust as an ESBT effective January 1, 
2003. On March 28, 2004, M dies. Under applicable local law, Trust does 
not terminate on M's death. Trust continues to be an ESBT after M's 
death, and no additional ESBT election needs to be filed for Trust after 
M's death.
    (v) Example 5. Potential current beneficiaries and distributee trust 
holding S corporation stock. Trust-1 has a valid ESBT election in 
effect. The trustee of Trust-1 has the power to make distributions to A 
directly or to any trust created for the benefit of A. On January 1, 
2003, M creates Trust-2 for the benefit of A. Also on January 1, 2003, 
the trustee of Trust-1 distributes some S corporation stock to Trust-2. 
A, as the current income beneficiary of Trust-2, makes a timely and 
effective election to treat Trust-2 as a QSST. Because Trust-2 is a 
valid S corporation shareholder, the distribution to Trust-2 does not 
terminate the ESBT election of Trust-1. Trust-2 itself will not be 
counted toward the shareholder limit of section 1361(b)(1)(A). 
Additionally, because A is already counted as an S corporation 
shareholder because of A's status as a potential current income 
beneficiary of Trust-1, A is not counted again by reason of A's status 
as the deemed owner of Trust-2.
    (vi) Example 6. Potential current beneficiaries and distributee 
trust not holding S corporation stock--(A) Distributee trust that would 
itself qualify as an ESBT. Trust-1 holds stock in X, an S corporation, 
and has a valid ESBT election in effect. Under the terms of Trust-1, the 
trustee has discretion to make distributions to A, B, and Trust-2, a 
trust for the benefit of C, D, and E. Trust-2 would qualify to be an 
ESBT, but it owns no S corporation stock and has made no ESBT election. 
Under paragraph (m)(4)(iv) of this section, Trust-2's potential current 
beneficiaries are treated as the potential current beneficiaries of 
Trust-1 and are counted as shareholders for purposes of section 
1361(b)(1). Thus, A, B, C, D, and E are potential current beneficiaries 
of Trust-1 and are counted as shareholders for purposes of section 
1361(b)(1). Trust-2 itself will not be counted as a shareholder of 
Trust-1 for purposes of section 1361(b)(1).
    (B) Distributee trust that would not qualify as an ESBT or a QSST. 
Assume the same facts as Example 6 in paragraph (m)(8)(vi)(A) of this 
section except that D is a charitable remainder trust. Trust-2 would not 
be eligible to

[[Page 859]]

make an ESBT or QSST election if it owned S corporation stock and 
therefore Trust-2 is a potential current beneficiary of Trust-1. Since 
Trust-2 is not an eligible shareholder, X's S corporation election 
terminates.
    (C) Distributee trust that is a section 1361(c)(2)(A)(ii) trust. 
Assume the same facts as in Example 6 in paragraph (m)(8)(vi)(A) of this 
section except that Trust-2 is a trust treated as owned by A under 
section 676 because A has the power to revoke Trust-2 at any time prior 
to A's death. On January 1, 2003, A dies. Because Trust-2 is a trust 
described in section 1361(c)(2)(A)(ii) during the 2-year period 
beginning on the day of A's death, under paragraph (m)(4)(iv)(C) of this 
section, Trust-2's only potential current beneficiary is the person 
listed in section 1361(c)(2)(B)(ii), A's estate. Thus, B and A's estate 
are potential current beneficiaries of Trust-1 and are counted as 
shareholders for purposes of section 1361(b)(1).
    (vii) Example 7. Potential current beneficiaries and powers of 
appointment.  M creates Trust from which A has a right to all net income 
and funds it with S corporation stock. A also has a currently 
exercisable power to appoint income or principal to anyone except A, A's 
creditors, A's estate, and the creditors of A's estate. The potential 
current beneficiaries of Trust for any period will be A and each person 
who receives a distribution from Trust pursuant to A's exercise of A's 
power of appointment during that period.
    (viii) Example 8. Power to distribute to an unlimited class of 
charitable organizations not pursuant to a power of appointment. M 
creates Trust from which A has a right to all net income and funds it 
with S corporation stock. In addition, the trustee of Trust, who is not 
A or a descendant of M, has the power to make discretionary 
distributions of principal to the living descendants of M and to any 
organizations described in section 1361(c)(6). The potential current 
beneficiaries of Trust for any period will be A, each then-living 
descendant of M, and each exempt organization described in section 
1361(c)(6) that receives a distribution during that period. In addition, 
the class of exempt organizations will be counted as one potential 
current beneficiary.
    (ix) Example 9. Power to distribute to a class of named charitable 
organizations not pursuant to a power of appointment.  M creates Trust 
from which A has a right to all net income and funds it with S 
corporation stock. In addition, the trustee of Trust, who is not A or a 
descendant of M, has the power to make discretionary distributions of 
principal to the living descendants of M and to X, Y, and Z, each of 
which is an organization described in section 1361(c)(6). The potential 
current beneficiaries of Trust for any period will be A, X, Y, Z, and 
each living descendant of M.
    (9) Effective date. This paragraph (m) is applicable for taxable 
years of ESBTs beginning on and after May 14, 2002. Paragraphs 
(m)(2)(ii)(A) and (m)(4)(iii) and (vi) of this section and Examples 2, 
5, and 7 through 9 in paragraphs (m)(8)(ii), (v), and (vii) through 
(ix), respectively, of this section are effective on August 14, 2008. 
Paragraphs (m)(1)(ii)(D), (m)(2)(ii)(E)(2), (m)(4)(i), (m)(5)(iii), and 
(m)(8) of this section apply to all ESBTs after December 31, 2017.

[T.D. 8419, 57 FR 22649, May 29, 1992; 57 FR 28613, June 26, 1992, as 
amended by T.D. 8600, 60 FR 37581, July 21, 1995; 60 FR 49976, Sept. 27, 
1995; 60 FR 58234, Nov. 27, 1995; 61 FR 2869, Jan. 29, 1996; T.D. 8869, 
65 FR 3849, Jan. 25, 2000; T.D. 8940, 66 FR 9929, 9957, Feb. 13, 2001; 
T.D. 8994, 67 FR 34397, May 14, 2002; T.D. 9078, 68 FR 42252, July 17, 
2003; T.D. 9422, 73 FR 47527, Aug. 14, 2008; T.D. 9868, 84 FR 28216, 
June 18, 2019]



Sec.  1.1361-2  Definitions relating to S corporation subsidiaries.

    (a) In general. The term qualified subchapter S subsidiary (QSub) 
means any domestic corporation that is not an ineligible corporation (as 
defined in section 1361(b)(2) and the regulations thereunder), if--
    (1) 100 percent of the stock of such corporation is held by an S 
corporation; and
    (2) The S corporation properly elects to treat the subsidiary as a 
QSub under Sec.  1.1361-3.
    (b) Stock treated as held by S corporation. For purposes of 
satisfying the 100 percent stock ownership requirement

[[Page 860]]

in section 1361(b)(3)(B)(i) and paragraph (a)(1) of this section--
    (1) Stock of a corporation is treated as held by an S corporation if 
the S corporation is the owner of that stock for Federal income tax 
purposes; and
    (2) Any outstanding instruments, obligations, or arrangements of the 
corporation which would not be considered stock for purposes of section 
1361(b)(1)(D) if the corporation were an S corporation are not treated 
as outstanding stock of the QSub.
    (c) Straight debt safe harbor. Section 1.1361-1(l)(5)(iv) and (v) 
apply to an obligation of a corporation for which a QSub election is 
made if that obligation would satisfy the definition of straight debt in 
Sec.  1.1361-1(l)(5) if issued by the S corporation.
    (d) Examples. The following examples illustrate the application of 
this section:

    Example 1. X, an S corporation, owns 100 percent of Y, a corporation 
for which a valid QSub election is in effect for the taxable year. Y 
owns 100 percent of Z, a corporation otherwise eligible for QSub status. 
X may elect to treat Z as a QSub under section 1361(b)(3)(B)(ii).
    Example 2. Assume the same facts as in Example 1, except that Y is a 
business entity that is disregarded as an entity separate from its owner 
under Sec.  301.7701-2(c)(2) of this chapter. X may elect to treat Z as 
a QSub.
    Example 3. Assume the same facts as in Example 1, except that Y owns 
50 percent of Z, and X owns the other 50 percent. X may elect to treat Z 
as a QSub.
    Example 4. Assume the same facts as in Example 1, except that Y is a 
C corporation. Although Y is a domestic corporation that is otherwise 
eligible to be a QSub, no QSub election has been made for Y. Thus, X is 
not treated as holding the stock of Z. Consequently, X may not elect to 
treat Z as a QSub.
    Example 5. Individuals A and B own 100 percent of the stock of 
corporation X, an S corporation, and, except for C's interest (described 
below), X owns 100 percent of corporation Y, a C corporation. Individual 
C holds an instrument issued by Y that is considered to be equity under 
general principles of tax law but would satisfy the definition of 
straight debt under Sec.  1.1361-1(l)(5) if Y were an S corporation. In 
determining whether X owns 100 percent of Y for purposes of making the 
QSub election, the instrument held by C is not considered outstanding 
stock. In addition, under Sec.  1.1361-1(l)(5)(v), the QSub election is 
not treated as an exchange of debt for stock with respect to such 
instrument, and Sec.  1.1361-1(l)(5)(iv) applies to determine the tax 
treatment of payments on the instrument while Y's QSub election is in 
effect.

[T.D. 8869, 65 FR 3849, Jan. 25, 2000]



Sec.  1.1361-3  QSub election.

    (a) Time and manner of making election--(1) In general. The 
corporation for which the QSub election is made must meet all the 
requirements of section 1361(b)(3)(B) at the time the election is made 
and for all periods for which the election is to be effective.
    (2) Manner of making election. Except as provided in section 
1361(b)(3)(D) and Sec.  1.1361-5(c) (five-year prohibition on re-
election), an S corporation may elect to treat an eligible subsidiary as 
a QSub by filing a completed form to be prescribed by the IRS. The 
election form must be signed by a person authorized to sign the S 
corporation's return required to be filed under section 6037. Unless the 
election form provides otherwise, the election must be submitted to the 
service center where the subsidiary filed its most recent tax return (if 
applicable), and, if an S corporation forms a subsidiary and makes a 
valid QSub election (effective upon the date of the subsidiary's 
formation) for the subsidiary, the election should be submitted to the 
service center where the S corporation filed its most recent return.
    (3) Time of making election. A QSub election may be made by the S 
corporation parent at any time during the taxable year.
    (4) Effective date of election. A QSub election will be effective on 
the date specified on the election form or on the date the election form 
is filed if no date is specified. The effective date specified on the 
form cannot be more than two months and 15 days prior to the date of 
filing and cannot be more than 12 months after the date of filing. For 
this purpose, the definition of the term month found in Sec.  1.1362-
6(a)(2)(ii)(C) applies. If an election form specifies an effective date 
more than two months and 15 days prior to the date on which the election 
form is filed, it will be effective two months and 15 days prior to the 
date it is filed. If an election form specifies an effective date more 
than 12 months after the date on which the election is filed,

[[Page 861]]

it will be effective 12 months after the date it is filed.
    (5) Example. The following example illustrates the application of 
paragraph (a)(4) of this section:

    Example. X has been a calendar year S corporation engaged in a trade 
or business for several years. X acquires the stock of Y, a calendar 
year C corporation, on April 1, 2002. On August 10, 2002, X makes an 
election to treat Y as a QSub. Unless otherwise specified on the 
election form, the election will be effective as of August 10, 2002. If 
specified on the election form, the election may be effective on some 
other date that is not more than two months and 15 days prior to August 
10, 2002, and not more than 12 months after August 10, 2002.

    (6) Extension of time for making a QSub election. An extension of 
time to make a QSub election may be available under the procedures 
applicable under Sec. Sec.  301.9100-1 and 301.9100-3 of this chapter.
    (b) Revocation of QSub election--(1) Manner of revoking QSub 
election. An S corporation may revoke a QSub election under section 1361 
by filing a statement with the service center where the S corporation's 
most recent tax return was properly filed. The revocation statement must 
include the names, addresses, and taxpayer identification numbers of 
both the parent S corporation and the QSub, if any. The statement must 
be signed by a person authorized to sign the S corporation's return 
required to be filed under section 6037.
    (2) Effective date of revocation. The revocation of a QSub election 
is effective on the date specified on the revocation statement or on the 
date the revocation statement is filed if no date is specified. The 
effective date specified on the revocation statement cannot be more than 
two months and 15 days prior to the date on which the revocation 
statement is filed and cannot be more than 12 months after the date on 
which the revocation statement is filed. If a revocation statement 
specifies an effective date more than two months and 15 days prior to 
the date on which the statement is filed, it will be effective two 
months and 15 days prior to the date it is filed. If a revocation 
statement specifies an effective date more than 12 months after the date 
on which the statement is filed, it will be effective 12 months after 
the date it is filed.
    (3) Revocation after termination. A revocation may not be made after 
the occurrence of an event that renders the subsidiary ineligible for 
QSub status under section 1361(b)(3)(B).
    (4) Revocation before QSub election effective. For purposes of 
Section 1361(b)(3)(D) and Sec.  1.1361-5(c) (five-year prohibition on 
re-election), a revocation effective on the first day the QSub election 
was to be effective will not be treated as a termination of a QSub 
election.

[T.D. 8869, 65 FR 3850, Jan. 25, 2000]



Sec.  1.1361-4  Effect of QSub election.

    (a) Separate existence ignored--(1) In general. Except as otherwise 
provided in paragraphs (a)(3), (a)(6), (a)(7), (a)(8), and (a)(9) of 
this section, for Federal tax purposes--
    (i) A corporation that is a QSub shall not be treated as a separate 
corporation; and
    (ii) All assets, liabilities, and items of income, deduction, and 
credit of a QSub shall be treated as assets, liabilities, and items of 
income, deduction, and credit of the S corporation.
    (2) Liquidation of subsidiary--(i) In general. If an S corporation 
makes a valid QSub election with respect to a subsidiary, the subsidiary 
is deemed to have liquidated into the S corporation. Except as provided 
in paragraph (a)(5) of this section, the tax treatment of the 
liquidation or of a larger transaction that includes the liquidation 
will be determined under the Internal Revenue Code and general 
principles of tax law, including the step transaction doctrine. Thus, 
for example, if an S corporation forms a subsidiary and makes a valid 
QSub election (effective upon the date of the subsidiary's formation) 
for the subsidiary, the transfer of assets to the subsidiary and the 
deemed liquidation are disregarded, and the corporation will be deemed 
to be a QSub from its inception.
    (ii) Examples. The following examples illustrate the application of 
this paragraph (a)(2)(i) of this section:

    Example 1. Corporation X acquires all of the outstanding stock of 
solvent corporation Y from an unrelated individual for cash and short-
term notes. Thereafter, as part of the

[[Page 862]]

same plan, X immediately makes an S election and a QSub election for Y. 
Because X acquired all of the stock of Y in a qualified stock purchase 
within the meaning of section 338(d)(3), the liquidation described in 
paragraph (a)(2) of this section is respected as an independent step 
separate from the stock acquisition, and the tax consequences of the 
liquidation are determined under sections 332 and 337.
    Example 2. Corporation X, pursuant to a plan, acquires all of the 
outstanding stock of corporation Y from the shareholders of Y solely in 
exchange for 10 percent of the voting stock of X. Prior to the 
transaction, Y and its shareholders are unrelated to X. Thereafter, as 
part of the same plan, X immediately makes an S election and a QSub 
election for Y. The transaction is a reorganization described in section 
368(a)(1)(C), assuming the other conditions for reorganization treatment 
(e.g., continuity of business enterprise) are satisfied.
    Example 3. After the expiration of the transition period provided in 
paragraph (a)(5)(i) of this section, individual A, pursuant to a plan, 
contributes all of the outstanding stock of Y to his wholly owned S 
corporation, X, and immediately causes X to make a QSub election for Y. 
The transaction is a reorganization under section 368(a)(1)(D), assuming 
the other conditions for reorganization treatment (e.g., continuity of 
business enterprise) are satisfied. If the sum of the amount of 
liabilities of Y treated as assumed by X exceeds the total of the 
adjusted basis of the property of Y, then section 357(c) applies and 
such excess is considered as gain from the sale or exchange of a capital 
asset or of property which is not a capital asset, as the case may be.

    (iii) Adoption of plan of liquidation. For purposes of satisfying 
the requirement of adoption of a plan of liquidation under section 332, 
unless a formal plan of liquidation that contemplates the QSub election 
is adopted on an earlier date, the making of the QSub election is 
considered to be the adoption of a plan of liquidation immediately 
before the deemed liquidation described in paragraph (a)(2)(i) of this 
section.
    (iv) Example. The following example illustrates the application of 
paragraph (a)(2)(iii) of this section:

    Example. Corporation X owns 75 percent of a solvent corporation Y, 
and individual A owns the remaining 25 percent of Y. As part of a plan 
to make a QSub election for Y, X causes Y to redeem A's 25 percent 
interest on June 1 for cash and makes a QSub election for Y effective on 
June 3. The making of the QSub election is considered to be the adoption 
of a plan of liquidation immediately before the deemed liquidation. The 
deemed liquidation satisfies the requirements of section 332.

    (v) Stock ownership requirements of section 332. The deemed exercise 
of an option under Sec.  1.1504-4 and any instruments, obligations, or 
arrangements that are not considered stock under Sec.  1.1361-2(b)(2) 
are disregarded in determining if the stock ownership requirements of 
section 332(b) are met with respect to the deemed liquidation provided 
in paragraph (a)(2)(i) of this section.
    (3) Treatment of banks--(i) In general. If an S corporation is a 
bank, or if an S corporation makes a valid QSub election for a 
subsidiary that is a bank, any special rules applicable to banks under 
the Internal Revenue Code continue to apply separately to the bank 
parent or bank subsidiary as if the deemed liquidation of any QSub under 
paragraph (a)(2) of this section had not occurred (except as other 
published guidance may apply section 265(b) and section 291(a)(3) and 
(e)(1)(B) not only to the bank parent or bank subsidiary but also to any 
QSub deemed to have liquidated under paragraph (a)(2) of this section). 
For any QSub that is a bank, however, all assets, liabilities, and items 
of income, deduction, and credit of the QSub, as determined in 
accordance with the special bank rules, are treated as assets, 
liabilities, and items of income, deduction, and credit of the S 
corporation. For purposes of this paragraph (a)(3)(i), the term bank has 
the same meaning as in section 581.
    (ii) Examples. The following examples illustrate the application of 
this paragraph (a)(3):

    Example 1. X, an S corporation, is a bank as defined in section 581. 
X owns 100 percent of Y and Z, corporations for which valid QSub 
elections are in effect. Y is a bank as defined in section 581, and Z is 
not a financial institution. Pursuant to paragraph (a)(3)(i) of this 
section, any special rules applicable to banks under the Internal 
Revenue Code continue to apply separately to X and Y and do not apply to 
Z. Thus, for example, section 265(b), which provides special rules for 
interest expense deductions of banks, applies separately to X and Y. 
That is, X and Y each must make a separate determination under section 
265(b) of interest expense allocable to tax-exempt interest, and no 
deduction is allowed for that interest expense. Section 265(b) does not

[[Page 863]]

apply to Z except as published guidance may provide otherwise.
    Example 2. X, an S corporation, is a bank holding company and thus 
is not a bank as defined in section 581. X owns 100 percent of Y, a 
corporation for which a valid QSub election is in effect. Y is a bank as 
defined in section 581. Pursuant to paragraph (a)(3)(i) of this section, 
any special rules applicable to banks under the Internal Revenue Code 
continue to apply to Y and do not apply to X. However, all of Y's 
assets, liabilities, and items of income, deduction, and credit, as 
determined in accordance with the special bank rules, are treated as 
those of X. Thus, for example, section 582(c), which provides special 
rules for sales and exchanges of debt by banks, applies only to sales 
and exchanges by Y. However, any gain or loss on such a transaction by Y 
that is considered ordinary income or ordinary loss pursuant to section 
582(c) is treated as ordinary income or ordinary loss of X.

    (iii) Effective date. This paragraph (a)(3) applies to taxable years 
beginning after December 31, 1996.
    (4) Treatment of stock of QSub. Except for purposes of section 
1361(b)(3)(B)(i) and Sec.  1.1361-2(a)(1), the stock of a QSub shall be 
disregarded for all Federal tax purposes.
    (5) Transitional relief--(i) General rule. If an S corporation and 
another corporation (the related corporation) are persons specified in 
section 267(b) prior to an acquisition by the S corporation of some or 
all of the stock of the related corporation followed by a QSub election 
for the related corporation, the step transaction doctrine will not 
apply to determine the tax consequences of the acquisition. This 
paragraph (a)(5) shall apply to QSub elections effective before January 
1, 2001.
    (ii) Examples. The following examples illustrate the application of 
this paragraph (a)(5):

    Example 1. Individual A owns 100 percent of the stock of X, an S 
corporation. X owns 79 percent of the stock of Y, a solvent corporation, 
and A owns the remaining 21 percent. On May 4, 1998, A contributes its Y 
stock to X in exchange for X stock. X makes a QSub election with respect 
to Y effective immediately following the transfer. The liquidation 
described in paragraph (a)(2) of this section is respected as an 
independent step separate from the stock acquisition, and the tax 
consequences of the liquidation are determined under sections 332 and 
337. The contribution by A of the Y stock qualifies under section 351, 
and no gain or loss is recognized by A, X, or Y.
    Example 2. Individual A owns 100 percent of the stock of two solvent 
S corporations, X and Y. On May 4, 1998, A contributes the stock of Y to 
X. X makes a QSub election with respect to Y immediately following the 
transfer. The liquidation described in paragraph (a)(2) of this section 
is respected as an independent step separate from the stock acquisition, 
and the tax consequences of the liquidation are determined under 
sections 332 and 337. The contribution by A of the Y stock to X 
qualifies under section 351, and no gain or loss is recognized by A, X, 
or Y. Y is not treated as a C corporation for any period solely because 
of the transfer of its stock to X, an ineligible shareholder. Compare 
Example 3 of Sec.  1.1361-4(a)(2)(ii).

    (6) Treatment of certain QSubs--(i) In general. A QSub, even though 
it is generally not treated as a corporation separate from the S 
corporation, is treated as a separate corporation for purposes of:
    (A) Federal tax liabilities of the QSub with respect to any taxable 
period for which the QSub was treated as a separate corporation.
    (B) Federal tax liabilities of any other entity for which the QSub 
is liable.
    (C) Refunds or credits of Federal tax.
    (ii) Examples. The following examples illustrate the application of 
paragraph (a)(6)(i) of this section:

    Example 1. X has owned all of the outstanding stock of Y, a domestic 
corporation that reports its taxes on a calendar year basis, since 2001. 
X and Y do not report their taxes on a consolidated basis. For 2003, X 
makes a timely S election and simultaneously makes a QSub election for 
Y. In 2004, the Internal Revenue Service (IRS) seeks to extend the 
period of limitations on assessment for Y's 2001 taxable year. Because Y 
was treated as a separate corporation for its 2001 taxable year, Y is 
the proper party to sign the consent to extend the period of 
limitations.
    Example 2. The facts are the same as in Example 1, except that in 
2004, the IRS determines that Y miscalculated and underreported its 
income tax liability for 2001. Because Y was treated as a separate 
corporation for its 2001 taxable year, the deficiency for Y's 2001 
taxable year may be assessed against Y and, in the event that Y fails to 
pay the liability after notice and demand, a general tax lien will arise 
against all of Y's property and rights to property.
    Example 3. X is a QSub of Y. In 2001, Z, a domestic corporation that 
reports its taxes on a calendar year basis, merges into X in a state law 
merger. Z was not a member of a consolidated group at any time during 
its

[[Page 864]]

taxable year ending in December 2000. Under the applicable state law, X 
is the successor to Z and is liable for all of Z's debts. In 2003, the 
IRS seeks to extend the period of limitations on assessment for Z's 2000 
taxable year. Because X is the successor to Z and is liable for Z's 2000 
taxes that remain unpaid, X is the proper party to execute the consent 
to extend the period of limitations on assessment.

    (iii) Effective date. This paragraph (a)(6) applies on or after 
April 1, 2004.
    (7) Treatment of QSubs for purposes of employment taxes--(i) In 
general. A QSub is treated as a separate corporation for purposes of 
Subtitle C--Employment Taxes and Collection of Income Tax (Chapters 21, 
22, 23, 23A, 24, and 25 of the Internal Revenue Code).
    (ii) Effective/applicability date. This paragraph (a)(7) applies 
with respect to wages paid on or after January 1, 2009.
    (8) Treatment of QSubs for purposes of certain excise taxes--(i) In 
general. A QSub is treated as a separate corporation for purposes of--
    (A) Federal tax liabilities imposed by Chapters 31, 32 (other than 
section 4181), 33, 34, 35, 36 (other than section 4461), 38, and 49 of 
the Internal Revenue Code, or any floor stocks tax imposed on articles 
subject to any of these taxes;
    (B) Collection of tax imposed by Chapters 33 and 49 of the Internal 
Revenue Code;
    (C) Registration under sections 4101, 4222, and 4412;
    (D) Claims of a credit (other than a credit under section 34), 
refund, or payment related to a tax described in paragraph (a)(8)(i)(A) 
of this section or under section 6426 or 6427; and
    (E) Assessment and collection of an assessable payment imposed by 
section 4980H and reporting required by section 6056.
    (ii) Effective/applicability date. (A) Except as provided in this 
paragraph (a)(8)(ii), paragraph (a)(8) of this section applies to 
liabilities imposed and actions first required or permitted in periods 
beginning on or after January 1, 2008.
    (B) References to Chapter 49 in paragraph (a)(8) of this section 
apply to taxes imposed on amounts paid on or after July 1, 2012.
    (C) Paragraph (a)(8)(i)(E) of this section applies for periods after 
December 31, 2014.
    (9) Information returns--(i) In general. Except to the extent 
provided by the Secretary or Commissioner in guidance (including forms 
or instructions), paragraph (a)(1) of this section shall not apply to 
part III of subchapter A of chapter 61, relating to information returns.
    (ii) Effective/applicability date. This paragraph (a)(9) is 
effective on August 14, 2008.
    (b) Timing of the liquidation--(1) In general. Except as otherwise 
provided in paragraph (b)(3) or (4) of this section, the liquidation 
described in paragraph (a)(2) of this section occurs at the close of the 
day before the QSub election is effective. Thus, for example, if a C 
corporation elects to be treated as an S corporation and makes a QSub 
election (effective the same date as the S election) with respect to a 
subsidiary, the liquidation occurs immediately before the S election 
becomes effective, while the S electing parent is still a C corporation.
    (2) Application to elections in tiered situations. When QSub 
elections for a tiered group of subsidiaries are effective on the same 
date, the S corporation may specify the order of the liquidations. If no 
order is specified, the liquidations that are deemed to occur as a 
result of the QSub elections will be treated as occurring first for the 
lowest tier entity and proceed successively upward until all of the 
liquidations under paragraph (a)(2) of this section have occurred. For 
example, S, an S corporation, owns 100 percent of C, the common parent 
of an affiliated group of corporations that includes X and Y. C owns all 
of the stock of X and X owns all of the stock of Y. S elects under Sec.  
1.1361-3 to treat C, X and Y as QSubs effective on the same date. If no 
order is specified for the elections, the following liquidations are 
deemed to occur as a result of the elections, with each successive 
liquidation occuring on the same day immediately after the preceding 
liquidation: Y is treated as liquidating into X, then X is treated as 
liquidating into C, and finally C is treated as liquidating into S.

[[Page 865]]

    (3) Acquisitions. (i) In general. If an S corporation does not own 
100 percent of the stock of the subsidiary on the day before the QSub 
election is effective, the liquidation described in paragraph (a)(2) of 
this section occurs immediately after the time at which the S 
corporation first owns 100 percent of the stock.
    (ii) Special rules for acquired S corporations. Except as provided 
in paragraph (b)(4) of this section, if a corporation (Y) for which an 
election under section 1362(a) was in effect is acquired, and a QSub 
election is made effective on the day Y is acquired, Y is deemed to 
liquidate into the S corporation at the beginning of the day the 
termination of its S election is effective. As a result, if corporation 
X acquires Y, an S corporation, and makes an S election for itself and a 
QSub election for Y effective on the day of acquisition, Y liquidates 
into X at the beginning of the day when X's S election is effective, and 
there is no period between the termination of Y's S election and the 
deemed liquidation of Y during which Y is a C corporation. Y's taxable 
year ends for all Federal income tax purposes at the close of the 
preceding day. Furthermore, if Y owns Z, a corporation for which a QSub 
election was in effect prior to the acquisition of Y by X, and X makes 
QSub elections for Y and Z, effective on the day of acquisition, the 
transfer of assets to Z and the deemed liquidation of Z are disregarded. 
See Sec. Sec.  1.1361-4(a)(2) and 1.1361-5(b)(1)(i).
    (4) Coordination with section 338 election. An S corporation that 
makes a qualified stock purchase of a target may make an election under 
section 338 with respect to the acquisition if it meets the requirements 
for the election, and may make a QSub election with respect to the 
target. If an S corporation makes an election under section 338 with 
respect to a subsidiary acquired in a qualified stock purchase, a QSub 
election made with respect to that subsidiary is not effective before 
the day after the acquisition date (within the meaning of section 
338(h)(2)). If the QSub election is effective on the day after the 
acquisition date, the liquidation under paragraph (a)(2) of this section 
occurs immediately after the deemed asset purchase by the new target 
corporation under section 338. If an S corporation makes an election 
under section 338 (without a section 338(h)(10) election) with respect 
to a target, the target must file a final return as a C corporation 
reflecting the deemed sale. See Sec.  1.338-10(a). If the target was an 
S corporation on the day before the acquisition date, the final return 
as a C corporation must reflect the activities of the target for the 
acquisition date, including the deemed sale. See Sec.  1.338-10(a)(3).
    (c) Carryover of disallowed losses and deductions. If an S 
corporation (S1) acquires the stock of another S corporation (S2), and 
S1 makes a QSub election with respect to S2 effective on the day of the 
acquisition, see Sec.  1.1366-2(c)(1) for provisions relating to the 
carryover of losses and deductions with respect to a former shareholder 
of S2 that may be available to that shareholder as a shareholder of S1.
    (d) Examples. The following examples illustrate the application of 
this section:

    Example 1. X, an S corporation, owns 100 percent of the stock of Y, 
a C corporation. On June 2, 2002, X makes a valid QSub election for Y, 
effective June 2, 2002. Assume that, under general principles of tax 
law, including the step transaction doctrine, X's acquisition of the Y 
stock and the subsequent QSub election would not be treated as related. 
The liquidation described in paragraph (a)(2) of this section occurs at 
the close of the day on June 1, 2002, the day before the QSub election 
is effective, and the plan of liquidation is considered adopted on that 
date. Y's taxable year and separate existence for Federal tax purposes 
end at the close of June 1, 2002.
    Example 2. X, a C corporation, owns 100 percent of the stock of Y, 
another C corporation. On December 31, 2002, X makes an election under 
section 1362 to be treated as an S corporation and a valid QSub election 
for Y, both effective January 1, 2003. Assume that, under general 
principles of tax law, including the step transaction doctrine, X's 
acquisition of the Y stock and the subsequent QSub election would not be 
treated as related. The liquidation described in paragraph (a)(2) of 
this section occurs at the close of December 31, 2002, the day before 
the QSub election is effective. The QSub election for Y is effective on 
the same day that X's S election is effective, and the deemed 
liquidation is treated as occurring before the S election is effective, 
when X is still a C corporation. Y's

[[Page 866]]

taxable year ends at the close of December 31, 2002. See Sec.  1.381(b)-
1.
    Example 3. On June 1, 2002, X, an S corporation, acquires 100 
percent of the stock of Y, an existing S corporation, for cash in a 
transaction meeting the requirements of a qualified stock purchase (QSP) 
under section 338. X immediately makes a QSub election for Y effective 
June 2, 2002, and also makes a joint election under section 338(h)(10) 
with the shareholder of Y. Under section 338(a) and Sec.  1.338(h)(10)-
1(d)(3), Y is treated as having sold all of its assets at the close of 
the acquisition date, June 1, 2002. Y is treated as a new corporation 
which purchased all of those assets as of the beginning of June 2, 2002, 
the day after the acquisition date. Section 338(a)(2). The QSub election 
is effective on June 2, 2002, and the liquidation under paragraph (a)(2) 
of this section occurs immediately after the deemed asset purchase by 
the new corporation.
    Example 4. X, an S corporation, owns 100 percent of Y, a corporation 
for which a QSub election is in effect. On May 12, 2002, a date on which 
the QSub election is in effect, X issues Y a $10,000 note under state 
law that matures in ten years with a market rate of interest. Y is not 
treated as a separate corporation, and X's issuance of the note to Y on 
May 12, 2002, is disregarded for Federal tax purposes.
    Example 5. X, an S corporation, owns 100 percent of the stock of Y, 
a C corporation. At a time when Y is indebted to X in an amount that 
exceeds the fair market value of Y's assets, X makes a QSub election 
effective on the date it is filed with respect to Y. The liquidation 
described in paragraph (a)(2) of this section does not qualify under 
sections 332 and 337 and, thus, Y recognizes gain or loss on the assets 
distributed, subject to the limitations of section 267.

[T.D. 8869, 65 FR 3850, Jan. 25, 2000; 65 FR 16318, Mar. 28, 2000; T.D. 
8940, 66 FR 9929, 9957, Feb. 13, 2001; T.D. 9183, 70 FR 9221, Feb. 25, 
2005; T.D. 9356, 72 FR 45893, Aug. 16, 2007; T.D. 9422, 73 FR 47530, 
Aug. 14, 2008; T.D. 9596, 77 FR 37806, June 25, 2012; T.D. 9655, 79 FR 
8577, Feb. 12, 2014: T.D. 9670, 79 FR 36205, June 26, 2014]



Sec.  1.1361-5  Termination of QSub election.

    (a) In general--(1) Effective date. The termination of a QSub 
election is effective--
    (i) On the effective date contained in the revocation statement if a 
QSub election is revoked under Sec.  1.1361-3(b);
    (ii) At the close of the last day of the parent's last taxable year 
as an S corporation if the parent's S election terminates under Sec.  
1.1362-2; or
    (iii) At the close of the day on which an event (other than an event 
described in paragraph (a)(1)(ii) of this section) occurs that renders 
the subsidiary ineligible for QSub status under section 1361(b)(3)(B).
    (2) Information to be provided upon termination of QSub election by 
failure to qualify as a QSub. If a QSub election terminates because an 
event renders the subsidiary ineligible for QSub status, the S 
corporation must attach to its return for the taxable year in which the 
termination occurs a notification that a QSub election has terminated, 
the date of the termination, and the names, addresses, and employer 
identification numbers of both the parent corporation and the QSub.
    (3) QSub joins a consolidated group. If a QSub election terminates 
because the S corporation becomes a member of a consolidated group (and 
no election under section 338(g) is made) the principles of Sec.  
1.1502-76(b)(1)(ii)(A)(2) (relating to a special rule for S corporations 
that join a consolidated group) apply to any QSub of the S corporation 
that also becomes a member of the consolidated group at the same time as 
the S corporation. See Example 4 of paragraph (a)(4) of this section.
    (4) Examples. The following examples illustrate the application of 
this paragraph (a):

    Example 1. Termination because parent's S election terminates. X, an 
S corporation, owns 100 percent of Y. A QSub election is in effect with 
respect to Y for 2001. Effective on January 1, 2002, X revokes its S 
election. Because X is no longer an S corporation, Y no longer qualifies 
as a QSub at the close of December 31, 2001.
    Example 2. Termination due to transfer of QSub stock. X, an S 
corporation, owns 100 percent of Y. A QSub election is in effect with 
respect to Y. On December 10, 2002, X sells one share of Y stock to A, 
an individual. Because X no longer owns 100 percent of the stock of Y, Y 
no longer qualifies as a QSub. Accordingly, the QSub election made with 
respect to Y terminates at the close of December 10, 2002.
    Example 3. No termination on stock transfer between QSub and parent. 
X, an S corporation, owns 100 percent of the stock of Y, and Y owns 100 
percent of the stock of Z. QSub elections are in effect with respect to 
both Y and Z. Y transfers all of its Z stock to X. Because X is treated 
as owning the stock of Z both before and after the transfer of stock 
solely for purposes of determining whether

[[Page 867]]

the requirements of section 1361(b)(3)(B)(i) and Sec.  1.1361-2(a)(1) 
have been satisfied, the transfer of Z stock does not terminate Z's QSub 
election. Because the stock of Z is disregarded for all other Federal 
tax purposes, no gain is recognized under section 311.
    Example 4. Termination due to acquisition of S parent by a 
consolidated group. X, an S corporation, owns 100 percent of Y, a 
corporation for which a QSub election is in effect. Z, the common parent 
of a consolidated group of corporations, acquires 80 percent of the 
stock of X on June 1, 2002. Z does not make an election under section 
338(g) with respect to the purchase of X stock. X's S election 
terminates as of the close of the preceding day, May 31, 2002. Y's QSub 
election also terminates at the close of May 31, 2002. Under Sec.  
1.1502-76(b)(1)(ii)(A)(2) and paragraph (a)(3) of this section, X and Y 
become members of Z's consolidated group of corporations as of the 
beginning of the day June 1, 2002.
    Example 5. Termination due to acquisition of QSub by a consolidated 
group. The facts are the same as in Example 4, except that Z acquires 80 
percent of the stock of Y (instead of X) on June 1, 2002. In this case, 
Y's QSub election terminates as of the close of June 1, 2002, and, under 
Sec.  1.1502-76(b)(1)(ii)(A)(1), Y becomes a member of the consolidated 
group at that time.

    (b) Effect of termination of QSub election--(1) Formation of new 
corporation--(i) In general. If a QSub election terminates under 
paragraph (a) of this section, the former QSub is treated as a new 
corporation acquiring all of its assets (and assuming all of its 
liabilities) immediately before the termination from the S corporation 
parent in exchange for stock of the new corporation. The tax treatment 
of this transaction or of a larger transaction that includes this 
transaction will be determined under the Internal Revenue Code and 
general principles of tax law, including the step transaction doctrine. 
For purposes of determining the application of section 351 with respect 
to this transaction, instruments, obligations, or other arrangements 
that are not treated as stock of the QSub under Sec.  1.1361-2(b) are 
disregarded in determining control for purposes of section 368(c) even 
if they are equity under general principles of tax law.
    (ii) Termination for tiered QSubs. If QSub elections terminate for 
tiered QSubs on the same day, the formation of any higher tier 
subsidiary precedes the formation of its lower tier subsidiary. See 
Example 6 in paragraph (b)(3) of this section.
    (2) Carryover of disallowed losses and deductions. If a QSub 
terminates because the S corporation distributes the QSub stock to some 
or all of the S corporation's shareholders in a transaction to which 
section 368(a)(1)(D) applies by reason of section 355 (or so much of 
section 356 as relates to section 355), see Sec.  1.1366-2(c)(2) for 
provisions relating to the carryover of disallowed losses and deductions 
that may be available.
    (3) Examples. The following examples illustrate the application of 
this paragraph (b):

    Example 1. X, an S corporation, owns 100 percent of the stock of Y, 
a corporation for which a QSub election is in effect. X sells 21 percent 
of the Y stock to Z, an unrelated corporation, for cash, thereby 
terminating the QSub election. Y is treated as a new corporation 
acquiring all of its assets (and assuming all of its liabilities) in 
exchange for Y stock immediately before the termination from the S 
corporation. The deemed exchange by X of assets for Y stock does not 
qualify under section 351 because X is not in control of Y within the 
meaning of section 368(c) immediately after the transfer as a result of 
the sale of stock to Z. Therefore, X must recognize gain, if any, on the 
assets transferred to Y in exchange for its stock. X's losses, if any, 
on the assets transferred are subject to the limitations of section 267.
    Example 2. (i) X, an S corporation, owns 100 percent of the stock of 
Y, a corporation for which a QSub election is in effect. As part of a 
plan to sell a portion of Y, X causes Y to merge into T, a limited 
liability company wholly owned by X that is disregarded as an entity 
separate from its owner for Federal tax purposes. X then sells 21 
percent of T to Z, an unrelated corporation, for cash. Following the 
sale, no entity classification election is made under Sec.  301.7701-
3(c) of this chapter to treat the limited liability company as an 
association for Federal tax purposes.
    (ii) The merger of Y into T causes a termination of Y's QSub 
election. The new corporation (Newco) that is formed as a result of the 
termination is immediately merged into T, an entity that is disregarded 
for Federal tax purposes. Because, at the end of the series of 
transactions, the assets continue to be held by X for Federal tax 
purposes, under step transaction principles, the formation of Newco and 
the transfer of assets pursuant to the merger of Newco into T are 
disregarded. The sale of 21 percent of T is treated as a sale of a 21 
percent undivided interest in each of T's assets. Immediately 
thereafter, X

[[Page 868]]

and Z are treated as contributing their respective interests in those 
assets to a partnership in exchange for ownership interests in the 
partnership.
    (iii) Under section 1001, X recognizes gain or loss from the deemed 
sale of the 21 percent interest in each asset of the limited liability 
company to Z. Under section 721(a), no gain or loss is recognized by X 
and Z as a result of the deemed contribution of their respective 
interests in the assets to the partnership in exchange for ownership 
interests in the partnership.
    Example 3. Assume the same facts as in Example 1, except that, 
instead of purchasing Y stock, Z contributes to Y an operating asset in 
exchange for 21 percent of the Y stock. Y is treated as a new 
corporation acquiring all of its assets (and assuming all of its 
liabilities) in exchange for Y stock immediately before the termination. 
Because X and Z are co-transferors that control the transferee 
immediately after the transfer, the transaction qualifies under section 
351.
    Example 4. X, an S corporation, owns 100 percent of the stock of Y, 
a corporation for which a QSub election is in effect. X distributes all 
of the Y stock pro rata to its shareholders, and the distribution 
terminates the QSub election. The transaction can qualify as a 
distribution to which sections 368(a)(1)(D) and 355 apply if the 
transaction otherwise satisfies the requirements of those sections.
    Example 5. X, an S corporation, owns 100 percent of the stock of Y, 
a corporation for which a QSub election is in effect. X subsequently 
revokes the QSub election. Y is treated as a new corporation acquiring 
all of its assets (and assuming all of its liabilities) immediately 
before the revocation from its S corporation parent in a deemed exchange 
for Y stock. On a subsequent date, X sells 21 percent of the stock of Y 
to Z, an unrelated corporation, for cash. Assume that under general 
principles of tax law including the step transaction doctrine, the sale 
is not taken into account in determining whether X is in control of Y 
immediately after the deemed exchange of assets for stock. The deemed 
exchange by X of assets for Y stock and the deemed assumption by Y of 
its liabilities qualify under section 351 because, for purposes of that 
section, X is in control of Y within the meaning of section 368(c) 
immediately after the transfer.
    Example 6. (i) X, an S corporation, owns 100 percent of the stock of 
Y, and Y owns 100 percent of the stock of Z. Y and Z are corporations 
for which QSub elections are in effect. X subsequently revokes the QSub 
elections and the effective date specified on each revocation statement 
is June 26, 2002, a date that is less than 12 months after the date on 
which the revocation statements are filed.
    (ii) Immediately before the QSub elections terminate, Y is treated 
as a new corporation acquiring all of its assets (and assuming all of 
its liabilities) directly from X in exchange for the stock of Y. Z is 
treated as a new corporation acquiring all of its assets (and assuming 
all of its liabilities) directly from Y in exchange for the stock of Z.
    Example 7. (i) The facts are the same as in Example 6, except that, 
prior to June 26, 2002 (the effective date of the revocations), Y 
distributes the Z stock to X under state law.
    (ii) Immediately before the QSub elections terminate, Y is treated 
as a new corporation acquiring all of its assets (and assuming all of 
its liabilities) directly from X in exchange for the stock of Y. Z is 
also treated as a new corporation acquiring all of its assets (and 
assuming all of its liabilities) directly from X in exchange for the 
stock of Z.
    Example 8. Merger of parent into QSub. X, an S corporation, owns 100 
percent of the stock of Y, a corporation for which a QSub election is in 
effect. X merges into Y under state law, causing the QSub election for Y 
to terminate, and Y survives the merger. The formation of the new 
corporation, Y, and the merger of X into Y can qualify as a 
reorganization described in section 368(a)(1)(F) if the transaction 
otherwise satisfies the requirements of that section.
    Example 9. Transfer of 100 percent of QSub. X, an S corporation, 
owns 100 percent of the stock of Y, a corporation for which a QSub 
election is in effect. Z, an unrelated C corporation, acquires 100 
percent of the stock of Y. The deemed formation of Y by X (as a 
consequence of the termination of Y's QSub election) is disregarded for 
Federal income tax purposes. The transaction is treated as a transfer of 
the assets of Y to Z, followed by Z's transfer of these assets to the 
capital of Y in exchange for Y stock. Furthermore, if Z is an S 
corporation and makes a QSub election for Y effective as of the 
acquisition, Z's transfer of the assets of Y in exchange for Y stock, 
followed by the immediate liquidation of Y as a consequence of the QSub 
election are disregarded for Federal income tax purposes.

    (c) Election after QSub termination--(1) In general. Absent the 
Commissioner's consent, and except as provided in paragraph (c)(2) of 
this section, a corporation whose QSub election has terminated under 
paragraph (a) of this section (or a successor corporation as defined 
inSec.  1.1362-5(b)) may not make an S election under section 1362 or 
have a QSub election under section 1361(b)(3)(B)(ii) made with respect 
to it for five taxable years (as described in section 1361(b)(3)(D)). 
The Commissioner may permit an S election by the corporation or a new 
QSub election with respect to the corporation before

[[Page 869]]

the five-year period expires. The corporation requesting consent to make 
the election has the burden of establishing that, under the relevant 
facts and circumstances, the Commissioner should consent to a new 
election.
    (2) Exception. In the case of S and QSub elections effective after 
December 31, 1996, if a corporation's QSub election terminates, the 
corporation may, without requesting the Commissioner's consent, make an 
S election or have a QSub election made with respect to it before the 
expiration of the five-year period described in section 1361(b)(3)(D) 
and paragraph (c)(1) of this section, provided that--
    (i) Immediately following the termination, the corporation (or its 
successor corporation) is otherwise eligible to make an S election or 
have a QSub election made for it; and
    (ii) The relevant election is made effective immediately following 
the termination of the QSub election.
    (3) Examples. The following examples illustrate the application of 
this paragraph (c):

    Example 1. Termination upon distribution of QSub stock to 
shareholders of parent. X, an S corporation, owns Y, a QSub. X 
distributes all of its Y stock to X's shareholders. The distribution 
terminates the QSub election because Y no longer satisfies the 
requirements of a QSub. Assuming Y is otherwise eligible to be treated 
as an S corporation, Y's shareholders may elect to treat Y as an S 
corporation effective on the date of the stock distribution without 
requesting the Commissioner's consent.
    Example 2. Sale of 100 percent of QSub stock. X, an S corporation, 
owns Y, a QSub. X sells 100 percent of the stock of Y to Z, an unrelated 
S corporation. Z may elect to treat Y as a QSub effective on the date of 
purchase without requesting the Commissioner's consent.

[T.D. 8869, 65 FR 3852, Jan. 25, 2000; 65 FR 16318, Mar. 28, 2000, as 
amended by T.D. 8869, 67 FR 65313, Oct. 24, 2002]



Sec.  1.1361-6  Effective date.

    Except as provided in Sec. Sec.  1.1361-4(a)(3)(iii), 1.1361-
4(a)(5)(i), 1.1361-4(a)(6)(iii), 1.1361-4(a)(7)(ii), 1.1361-4(a)(8)(ii), 
1.1361-4(a)(9), and 1.1361-5(c)(2), the provisions of Sec. Sec.  1.1361-
2 through 1.1361-5 apply to taxable years beginning on or after January 
20, 2000; however, taxpayers may elect to apply the regulations in 
whole, but not in part (aside from those sections with special dates of 
applicability), for taxable years beginning on or after January 1, 2000, 
provided all affected taxpayers apply the regulations in a consistent 
manner. To make this election, the corporation and all affected 
taxpayers must file a return or an amended return that is consistent 
with these rules for the taxable year for which the election is made. 
For purposes of this section, affected taxpayers means all taxpayers 
whose returns are affected by the election to apply the regulations.

[T.D. 8869, 65 FR 3854, Jan. 25, 2000, as amended by T.D. 9356, 72 FR 
45893, Aug. 16, 2007; T.D. 9422, 73 FR 47530, Aug. 14, 2008]



Sec.  1.1362-0  Table of contents.

    This section lists the captions that appear in the regulations under 
section 1362.

             Sec.  1.1362-1 Election to be an S corporation.

    (a) In general.
    (b) Years for which election is effective.

                 Sec.  1.1362-2 Termination of election.

    (a) Termination by revocation.
    (1) In general.
    (2) When effective.
    (i) In general.
    (ii) Revocations specifying a prospective revocation date.
    (3) Effect on taxable year of corporation.
    (4) Rescission of a revocation.
    (b) Termination by reason of corporation ceasing to be a small 
business corporation.
    (1) In general.
    (2) When effective.
    (3) Effect on taxable year of corporation.
    (c) Termination by reason of excess passive investment income.
    (1) In general.
    (2) When effective.
    (3) Subchapter C earnings and profits.
    (4) Gross receipts.
    (i) In general.
    (ii) Special rules for sales of capital assets, stock and 
securities.
    (A) Sales of capital assets.
    (B) Sales of stock or securities.
    (1) In general.
    (2) Treatment of certain liquidations.
    (3) Definition of stock or securities.
    (4) General partner interests.
    (i) In general.
    (ii) Exception.
    (iii) Other exclusions from gross receipts.
    (5) Passive investment income.
    (i) In general.
    (ii) Definitions.

[[Page 870]]

    (A) Royalties.
    (1) In general.
    (2) Royalties derived in the ordinary course of a trade or business.
    (3) Copyright, mineral, oil and gas, and active business computer 
software royalties.
    (B) Rents.
    (1) In general.
    (2) Rents derived in the active trade or business of renting 
property.
    (3) Produced film rents.
    (4) Income from leasing self-produced tangible property.
    (C) Dividends.
    (D) Interest.
    (1) In general.
    (2) Interest on obligations acquired in the ordinary course of a 
trade or business.
    (E) Annuities.
    (F) Gross receipts from the sale of stock or securities.
    (G) Identified income.
    (iii) Special rules.
    (A) Options or commodities dealers.
    (B) Treatment of certain lending, financing and other businesses.
    (1) In general.
    (2) Directly derived.
    (C) Payment to a patron of a cooperative.
    (6) Examples.

             Sec.  1.1362-3 Treatment of S termination year.

    (a) In general.
    (b) Allocations other than pro rata.
    (1) Elections under section 1362(e)(3).
    (2) Purchase of stock treated as an asset purchase.
    (3) 50 percent change in ownership during S termination year.
    (c) Special rules.
    (1) S corporation that is a partner in a partnership.
    (2) Tax for the C short year.
    (3) Each short year treated as taxable year.
    (4) Year for carryover purposes.
    (5) Due date for S short year return.
    (6) Year in which income from S short year is includible.
    (d) Examples.

                     Sec.  Inadvertent terminations.

   Sec.  1.1362-4 Inadvertent terminations and inadvertently invalid 
                               elections.

    (a) In general.
    (b) Inadvertent termination.
    (c) Corporation's request for determination of an inadvertent 
termination.
    (d) Adjustments.
    (e) Corporation and shareholder consents.
    (f) Status of corporation.
    (g) Effective/applicability date.

               Sec.  1.1362-5 Election after termination.

    (a) In general.
    (b) Successor corporation.
    (c) Automatic consent after certain terminations.

                 Sec.  1.1362-6 Elections and consents.

    (a) Time and manner of making elections.
    (1) In general.
    (2) Election to be an S corporation.
    (i) Manner of making election.
    (ii) Time of making election.
    (A) In general.
    (B) Elections made during the first 2\1/2\ months treated as made 
for the following taxable year.
    (C) Definition of month and beginning of the taxable year.
    (iii) Examples.
    (3) Revocation of S election.
    (i) Manner of revoking election.
    (ii) Time of revoking election.
    (iii) Examples.
    (4) Rescission of a revocation.
    (i) Manner of rescinding a revocation.
    (ii) Time of rescinding a revocation.
    (5) Election not to apply pro rata allocation.
    (b) Shareholders' consents.
    (1) Manner of consents in general.
    (2) Persons required to consent.
    (i) Community interest in stock.
    (ii) Minor.
    (iii) Estate.
    (iv) Trust.
    (3) Special rules for consent of shareholder to election to be an S 
corporation.
    (i) In general.
    (ii) Examples.
    (iii) Extension of time for filing consents to an election.
    (A) In general.
    (B) Required consents.

                     Sec.  1.1362-7 Effective date.

    (a) In general.
    (b) Special effective date for passive investment income provisions.

      Sec.  1362-8 Dividends received from affiliated subsidiaries.

    (a) In general.
    (b) Determination of active or passive earnings and profits.
    (1) In general.
    (2) Lower tier subsidiaries.
    (3) De minimis exception.
    (4) Special rules for earnings and profits accumulated by a C 
corporation prior to 80 percent acquisition.
    (5) Gross receipts safe harbor.
    (c) Allocating distributions to active or passive earnings and 
profits.
    (1) Distributions from current earnings and profits.
    (2) Distributions from accumulated earnings and profits.
    (3) Adjustments to active earnings and profits.

[[Page 871]]

    (4) Special rules for consolidated groups.
    (d) Examples.
    (e) Effective date.

[T.D. 8449, 57 FR 55448, Nov. 25, 1992; 58 FR 3330, Jan. 8, 1993, as 
amended by T.D. 8869, 65 FR 3854, Jan. 25, 2000; T.D. 9422, 73 FR 47530, 
Aug. 14, 2008]



Sec.  1.1362-1  Election to be an S corporation.

    (a) In general. Except as provided in Sec.  1.1362-5, a small 
business corporation as defined in section 1361 may elect to be an S 
corporation under section 1362(a). An election may be made only with the 
consent of all of the shareholders of the corporation at the time of the 
election. See Sec.  1.1362-6(a) for rules concerning the time and manner 
of making this election.
    (b) Years for which election is effective. An election under section 
1362(a) is effective for the entire taxable year of the corporation for 
which it is made and for all succeeding taxable years of the 
corporation, until the election is terminated.

[T.D. 8449, 57 FR 55449, Nov. 25, 1992]



Sec.  1.1362-2  Termination of election.

    (a) Termination by revocation--(1) In general. An election made 
under section 1362(a) is terminated if the corporation revokes the 
election for any taxable year of the corporation for which the election 
is effective, including the first taxable year. A revocation may be made 
only with the consent of shareholders who, at the time the revocation is 
made, hold more than one-half of the number of issued and outstanding 
shares of stock (including non-voting stock) of the corporation. See 
Sec.  1.1362-6(a) for rules concerning the time and manner of revoking 
an election made under section 1362(a).
    (2) When effective--(i) In general. Except as provided in paragraph 
(a)(2)(ii) of this section, a revocation made during the taxable year 
and before the 16th day of the third month of the taxable year is 
effective on the first day of the taxable year and a revocation made 
after the 15th day of the third month of the taxable year is effective 
for the following taxable year. If a corporation makes an election to be 
an S corporation that is to be effective beginning with the next taxable 
year and revokes its election on or before the first day of the next 
taxable year, the corporation is deemed to have revoked its election on 
the first day of the next taxable year.
    (ii) Revocations specifying a prospective revocation date. If a 
corporation specifies a date for revocation and the date is expressed in 
terms of a stated day, month, and year that is on or after the date the 
revocation is filed, the revocation is effective on and after the date 
so specified.
    (iii) Applicability of section 7503. With respect to a revocation 
made under paragraph (a)(2) of this section, see section 7503 
(addressing time for performance of acts where the last day occurs on a 
Saturday, Sunday, or legal holiday). This paragraph (a)(2)(iii) applies 
to revocations made under paragraph (a)(2) of this section effective 
after October 20, 2020. A corporation may apply this paragraph 
(a)(2)(iii) retroactively to a revocation made by the corporation under 
paragraph (a)(2) of this section effective on or before October 20, 
2020.
    (3) Effect on taxable year of corporation. In the case of a 
corporation that revokes its election to be an S corporation effective 
on the first day of the first taxable year for which its election is to 
be effective, any statement made with the election regarding a change in 
the corporation's taxable year has no effect.
    (4) Rescission of a revocation. A corporation may rescind a 
revocation made under paragraph (a)(2) of this section at any time 
before the revocation becomes effective. A rescission may be made only 
with the consent of each person who consented to the revocation and by 
each person who became a shareholder of the corporation within the 
period beginning on the first day after the date the revocation was made 
and ending on the date on which the rescission is made. See Sec.  
1.1362-6(a) for rules concerning the time and manner of rescinding a 
revocation.
    (b) Termination by reason of corporation ceasing to be a small 
business corporation--(1) In general. If a corporation ceases to be a 
small business corporation, as defined in section 1361(b), at any time 
on or after the first day of the first taxable year for which its

[[Page 872]]

election under section 1362(a) is effective, the election terminates. In 
the event of a termination under this paragraph (b)(1), the corporation 
should attach to its return for the taxable year in which the 
termination occurs a notification that a termination has occurred and 
the date of the termination.
    (2) When effective. If an election terminates because of a specific 
event that causes the corporation to fail to meet the definition of a 
small business corporation, the termination is effective as of the date 
on which the event occurs. If a corporation makes an election to be an S 
corporation that is effective beginning with the following taxable year 
and is not a small business corporation on the first day of that 
following taxable year, the election is treated as having terminated on 
that first day. If a corporation is a small business corporation on the 
first day of the taxable year for which its election is effective, its 
election does not terminate even if the corporation was not a small 
business corporation during all or part of the period beginning after 
the date the election was made and ending before the first day of the 
taxable year for which the election is effective.
    (3) Effect on taxable year of corporation. In the case of a 
corporation that fails to meet the definition of a small business 
corporation on the first day of the first taxable year for which its 
election to be an S corporation is to be effective, any statement made 
with the election regarding a change in the corporation's taxable year 
has no effect.
    (c) Termination by reason of excess passive investment income--(1) 
In general. A corporation's election under section 1362(a) terminates if 
the corporation has subchapter C earnings and profits at the close of 
each of three consecutive taxable years and, for each of those taxable 
years, has passive investment income in excess of 25 percent of gross 
receipts. See section 1375 for the tax imposed on excess passive 
investment income.
    (2) When effective. A termination under this paragraph (c) is 
effective on the first day of the first taxable year beginning after the 
third consecutive year in which the S corporation had excess passive 
investment income.
    (3) Subchapter C earnings and profits. For purposes of this 
paragraph (c), subchapter C earnings and profits of a corporation are 
the earnings and profits of any corporation, including the S corporation 
or an acquired or predecessor corporation, for any period with respect 
to which an election under section 1362(a) (or under section 1372 of 
prior law) was not in effect. The subchapter C earnings and profits of 
an S corporation are modified as required by section 1371(c).
    (4) Gross receipts--(i) In general. For purposes of this paragraph 
(c), gross receipts generally means the total amount received or accrued 
under the method of accounting used by the corporation in computing its 
taxable income and is not reduced by returns and allowances, cost of 
goods sold, or deductions.
    (ii) Special rules for sales of capital assets, stock and 
securities--(A) Sales of capital assets. For purposes of this paragraph 
(c), gross receipts from the sales or exchanges of capital assets (as 
defined in section 1221), other than stock and securities, are taken 
into account only to the extent of capital gain net income (as defined 
in section 1222).
    (B) Sales of stock or securities--(1) In general. For purposes of 
this paragraph (c), gross receipts from the sales or exchanges of stock 
or securities are taken into account only to the extent of gains 
therefrom. In addition, for purposes of computing gross receipts from 
sales or exchanges of stock or securities, losses do not offset gains.
    (2) Treatment of certain liquidations. Gross receipts from the sales 
or exchanges of stock or securities do not include amounts described in 
section 1362(d)(3)(D)(iv), relating to the treatment of certain 
liquidations. For purposes of section 1362(d)(3)(D)(iv), stock of the 
liquidating corporation owned by an S corporation shareholder is not 
treated as owned by the S corporation.
    (3) Definition of stock or securities. For purposes of this 
paragraph (c), stock or securities includes shares or certificates of 
stock, stock rights or warrants, or an interest in any corporation 
(including any joint stock company, insurance company, association, or 
other organization classified as a corporation under section 7701); an 
interest as a limited

[[Page 873]]

partner in a partnership; certificates of interest or participation in 
any profit-sharing agreement, or in any oil, gas, or other mineral 
property, or lease; collateral trust certificates; voting trust 
certificates; bonds; debentures; certificates of indebtedness; notes; 
car trust certificates; bills of exchange; or obligations issued by or 
on behalf of a State, Territory, or political subdivision thereof.
    (4) General partner interests--(i) In general. Except as provided in 
paragraph (c)(4)(ii)(B)(4)(ii) of this section, if an S corporation 
disposes of a general partner interest, the gain on the disposition is 
treated as gain from the sale of stock or securities to the extent of 
the amount the S corporation would have received as a distributive share 
of gain from the sale of stock or securities held by the partnership if 
all of the stock and securities held by the partnership had been sold by 
the partnership at fair market value at the time the S corporation 
disposes of the general partner interest. In applying this rule, the S 
corporation's distributive share of gain from the sale of stock or 
securities held by the partnership is not reduced to reflect any loss 
that would be recognized from the sale of stock or securities held by 
the partnership. In the case of tiered partnerships, the rules of this 
section apply by looking through each tier.
    (ii) Exception. An S corporation that disposes of a general partner 
interest may treat the disposition, for purposes of this paragraph (c), 
in the same manner as the disposition of an interest as a limited 
partner.
    (iii) Other exclusions from gross receipts. For purposes of this 
paragraph (c), gross receipts do not include--
    (A) Amounts received in nontaxable sales or exchanges except to the 
extent that gain is recognized by the corporation on the sale or 
exchange; or
    (B) Amounts received as a loan, as a repayment of a loan, as a 
contribution to capital, or on the issuance by the corporation of its 
own stock.
    (5) Passive investment income--(i) In general. In general, passive 
investment income means gross receipts (as defined in paragraph (c)(4) 
of this section) derived from royalties, rents, dividends, interest, 
annuities, and gains from the sales or exchanges of stock or securities.
    (ii) Definitions. For purposes of this paragraph (c)(5), the 
following definitions apply:
    (A) Royalties--(1) In general. Royalties means all royalties, 
including mineral, oil, and gas royalties, and amounts received for the 
privilege of using patents, copyrights, secret processes and formulas, 
good will, trademarks, tradebrands, franchises, and other like property. 
The gross amount of royalties is not reduced by any part of the cost of 
the rights under which the royalties are received or by any amount 
allowable as a deduction in computing taxable income.
    (2) Royalties derived in the ordinary course of a trade or business. 
Royalties does not include royalties derived in the ordinary course of a 
trade or business of franchising or licensing property. Royalties 
received by a corporation are derived in the ordinary course of a trade 
or business of franchising or licensing property only if, based on all 
the facts and circumstances, the corporation--
    (i) Created the property; or
    (ii) Performed significant services or incurred substantial costs 
with respect to the development or marketing of the property.
    (3) Copyright, mineral, oil and gas, and active business computer 
software royalties. Royalties does not include copyright royalties, nor 
mineral, oil and gas royalties if the income from those royalties would 
not be treated as personal holding company income under sections 543 
(a)(3) and (a)(4) if the corporation were a C corporation; amounts 
received upon disposal of timber, coal, or domestic iron ore with 
respect to which the special rules of sections 631 (b) and (c) apply; 
and active business computer software royalties as defined under section 
543(d) (without regard to paragraph (d)(5) of section 543).
    (B) Rents--(1) In general. Rents means amounts received for the use 
of, or right to use, property (whether real or personal) of the 
corporation.
    (2) Rents derived in the active trade or business of renting 
property. Rents does not include rents derived in the active trade or 
business of renting property.

[[Page 874]]

Rents received by a corporation are derived in an active trade or 
business of renting property only if, based on all the facts and 
circumstances, the corporation provides significant services or incurs 
substantial costs in the rental business. Generally, significant 
services are not rendered and substantial costs are not incurred in 
connection with net leases. Whether significant services are performed 
or substantial costs are incurred in the rental business is determined 
based upon all the facts and circumstances including, but not limited 
to, the number of persons employed to provide the services and the types 
and amounts of costs and expenses incurred (other than depreciation).
    (3) Produced film rents. Rents does not include produced film rents 
as defined under section 543(a)(5).
    (4) Income from leasing self-produced tangible property. Rents does 
not include compensation, however designated, for the use of, or right 
to use, any real or tangible personal property developed, manufactured, 
or produced by the taxpayer, if during the taxable year the taxpayer is 
engaged in substantial development, manufacturing, or production of real 
or tangible personal property of the same type.
    (C) Dividends. Dividends includes dividends as defined in section 
316, amounts to be included in gross income under section 551 (relating 
to foreign personal holding company income taxed to U.S. shareholders), 
and consent dividends as provided in section 565. See paragraphs 
(c)(5)(iii) (B) and (C) of this section for special rules for the 
treatment of certain dividends and certain payments to a patron of a 
cooperative. See Sec.  1.1362-8 for special rules regarding the 
treatment of dividends received by an S corporation from a C corporation 
in which the S corporation holds stock meeting the requirements of 
section 1504(a)(2).
    (D) Interest--(1) In general. Interest means any amount received for 
the use of money (including tax-exempt interest and amounts treated as 
interest under section 483, 1272, 1274, or 7872). See paragraph 
(c)(5)(iii)(B) of this section for a special rule for the treatment of 
interest derived in certain businesses.
    (2) Interest on obligations acquired in the ordinary course of a 
trade or business. Interest does not include interest on any obligation 
acquired from the sale of property described in section 1221(1) or the 
performance of services in the ordinary course of a trade or business of 
selling the property or performing the services.
    (E) Annuities. Annuities means the entire amount received as an 
annuity under an annuity, endowment, or life insurance contract, if any 
part of the amount would be includible in gross income under section 72.
    (F) Gross receipts from the sale of stock or securities. Gross 
receipts from the sales or exchanges of stock or securities, as 
described in paragraph (c)(4)(ii)(B) of this section, are passive 
investment income to the extent of gains therefrom. See paragraph 
(c)(5)(iii)(B) of this section for a special rule for the treatment of 
gains derived in certain businesses.
    (G) Identified income. Passive investment income does not include 
income identified by the Commissioner by regulations, revenue ruling, or 
revenue procedure as income derived in the ordinary course of a trade or 
business for purposes of this section.
    (iii) Special rules. For purposes of this paragraph (c)(5), the 
following special rules apply:
    (A) Options or commodities dealers. In the case of an options dealer 
or commodities dealer, passive investment income does not include any 
gain or loss (in the normal course of the taxpayer's activity of dealing 
in or trading section 1256 contracts) from any section 1256 contract or 
property related to the contract. Options dealer, commodities dealer, 
and section 1256 contract have the same meaning as in section 
1362(d)(3)(E)(ii).
    (B) Treatment of certain lending, financing and other business--(1) 
In general. Passive investment income does not include gross receipts 
that are directly derived in the ordinary course of a trade or business 
of--
    (i) Lending or financing;
    (ii) Dealing in property;
    (iii) Purchasing or discounting accounts receivable, notes, or 
installment obligations; or
    (iv) Servicing mortgages.

[[Page 875]]

    (2) Directly derived. For purposes of this paragraph (c)(5)(iii)(B), 
gross receipts directly derived in the ordinary course of business 
includes gain (as well as interest income) with respect to loans 
originated in a lending business, or interest income (as well as gain) 
from debt obligations of a dealer in such obligations. However, interest 
earned from the investment of idle funds in short-term securities does 
not constitute gross receipts directly derived in the ordinary course of 
business. Similarly, a dealer's income or gain from an item of property 
is not directly derived in the ordinary course of its trade or business 
if the dealer held the property for investment at any time before the 
income or gain is recognized.
    (C) Payment to a patron of a cooperative. Passive investment income 
does not include amounts included in the gross income of a patron of a 
cooperative (within the meaning of section 1381(a), without regard to 
paragraph (2) (A) or (C) of section 1381(a)) by reason of any payment or 
allocation to the patron based on patronage occurring in the case of a 
trade or business of the patron.
    (6) Examples. The principles of paragraphs (c)(4) and (c)(5) of this 
section are illustrated by the following examples. Unless otherwise 
provided in an example, S is an S corporation with subchapter C earnings 
and profits, and S's gross receipts from operations are gross receipts 
not derived from royalties, rents, dividends, interest, annuities, or 
gains from the sales or exchanges of stock or securities. S is a 
calendar year taxpayer and its first taxable year as an S corporation is 
1993.

    Example 1. Sales of capital assets, stock and securities. (i) S uses 
an accrual method of accounting and sells:
    (1) A depreciable asset, held for more than 6 months, which is used 
in the corporation's business;
    (2) A capital asset (other than stock or securities) for a gain;
    (3) A capital asset (other than stock or securities) for a loss; and
    (4) Securities.


S receives payment for each asset partly in money and partly in the form 
of a note payable at a future time, and elects not to report the sales 
on the installment method.
    (ii) The amount of money and the face amount (or issue price if 
different) of the note received for the business asset are considered 
gross receipts in the taxable year of sale and are not reduced by the 
adjusted basis of the property, costs of sale, or any other amount. With 
respect to the sales of the capital assets, gross receipts include the 
cash down payment and face amount (or issue price if different) of any 
notes, but only to the extent of S's capital gain net income. In the 
case of the sale of the securities, gross receipts include the cash down 
payment and face amount (or issue price if different) of the notes, but 
only to the extent of gain on the sale. In determining gross receipts 
from sales of securities, losses are not netted against gains.
    Example 2. Long-term contract reported on percentage-of-completion 
method. S has a long-term contract as defined in Sec.  1.460-1(b)(1) 
with respect to which it reports income according to the percentage-of-
completion method as described in Sec.  1.460-4(b). The portion of the 
gross contract price which corresponds to the percentage of the entire 
contract which has been completed during the taxable year is included in 
S's gross receipts for the year.
    Example 3. Income reported on installment sale method. For its 1993 
taxable year, S sells personal property on the installment plan and 
elects to report its taxable income from the sale of the property (other 
than property qualifying as a capital asset or stock or securities) on 
the installment method in accordance with section 453. The installment 
payment actually received in a given taxable year of S is included in 
gross receipts for the year.
    Example 4. Partnership interests. In 1993, S and two of its 
shareholders contribute cash to form a general partnership, PRS. S 
receives a 50 percent interest in the capital and profits of PRS. S 
formed PRS to indirectly invest in marketable stocks and securities. The 
only assets of PRS are the stock and securities, and certain real and 
tangible personal property. In 1994, S needs cash in its business and 
sells its partnership interest at a gain rather than having PRS sell the 
marketable stock or securities that have appreciated. Under paragraph 
(c)(4)(ii)(B)(4) of this section, the gain on S's disposition of its 
interest is PRS is treated as gain from the sale or exchange of stock or 
securities to the extent of the amount the distributive share of gain S 
would have received from the sale of stock or securities held by PRS if 
PRS had sold all of its stock or securities at fair market value at the 
time S disposed of its interest in PRS.
    Example 5. Royalties derived in ordinary course of trade or 
business. (i) In 1993, S has gross receipts of $75,000. Of this amount, 
$5,000 is from royalty payments with respect

[[Page 876]]

to Trademark A, $8,000 is from royalty payments with respect to 
Trademark B, and $62,000 is gross receipts from operations. S created 
Trademark A, but S did not create Trademark B or perform significant 
services or incur substantial costs with respect to the development or 
marketing of Trademark B.
    (ii) Because S created Trademark A, the royalty payments with 
respect to Trademark A are derived in the ordinary course of S's 
business and are not included within the definition of royalties for 
purposes of determining S's passive investment income. However, the 
royalty payments with respect to Trademark B are included within the 
definition of royalties for purposes of determining S's passive 
investment income. See paragraph (c)(5)(ii)(A) of this section. S's 
passive investment income for the year is $8,000, and S's passive 
investment income percentage for the taxable year is 10.67% ($8,000/
$75,000). This does not exceed 25 percent of S's gross receipts and 
consequently the three-year period described in section 1362(d)(3) does 
not begin to run.
    Example 6. Dividends; gain on sale of stock derived in the ordinary 
course of trade or business. (i) In 1993, S receives dividends of 
$10,000 on stock of corporations P and O, recognizes a gain of $25,000 
on sale of the P stock, and recognizes a loss of $12,000 on sale of the 
O stock. S held the P and O stock for investment, rather than for sale 
in the ordinary course of a trade or business. S has gross receipts from 
operations and from gain on the sale of stock in the ordinary course of 
its trade or business of $110,000.
    (ii) S's gross receipts are calculated as follows:

  $110,000  Gross receipts from operations and from gain on the sale of
             stock in the ordinary course of a trade or business
    10,000  Gross dividend receipts
    25,000  Gain on sale of P stock (Loss on O stock not taken into
             account
-----------
   145,000  Total gross receipts
 

    (iii) S's passive investment income is determined as follows:

   $10,000  Gross dividend receipts
    25,000  Gain on sale of P stock (Loss on O stock not taken into
             account
-----------
    35,000  Total passive investment income
 

    (iv) S's passive investment income percentage for its first year as 
an S corporation is 24.1% ($35,000/$145,000). This does not exceed 25 
percent of S's gross receipts and consequently the three-year period 
described in section 1362(d)(3) does not begin to run.
    Example 7. Interest on accounts receivable; netting of gain on sale 
of real property investments. (i) In 1993, S receives $6,000 of interest 
on accounts receivable arising from S's sales of inventory property. S 
also received dividends with respect to stock held for investment of 
$1,500. In addition, S sells two parcels of real property (Property J 
and Property K) that S had purchased and held for investment. S sells 
Property J, in which S has a basis of $5,000, for $10,000 (a gain of 
$5,000). S sells Property K, in which S has a basis of $12,000, for 
$9,000 (a loss of $3,000). S has gross receipts from operations of 
$90,000.
    (ii) S's gross receipts are calculated as follows:

   $90,000  Gross receipts from operations
     6,000  Gross interest receipts
     1,500  Gross dividend receipts
     2,000  Net gain on sale of real property investments
-----------
   $99,500  Total gross receipts
 

    (iii) Under paragraph (c)(5)(ii)(D) of this section, S's gross 
interest receipts are not passive investment income. In addition, gain 
on the sale of real property ($2,000) is not passive investment income. 
S's passive investment income includes only the $1,500 of gross dividend 
receipts. Accordingly, S's passive investment income percentage for its 
first year as an S corporation is 1.51% ($1,500/$99,500). This does not 
exceed 25 percent of S's gross receipts and consequently the three-year 
period described in section 1362(d)(3) does not begin to run.
    Example 8. Interest received in the ordinary course of a lending 
business. (i) In 1993, S has gross receipts of $100,000 from loans and 
investments made in the ordinary course of S's mortgage banking 
business. This includes, for example, mortgage servicing fees, interest 
earned on mortgages prior to sale of the mortgages, and gain on sale of 
mortgages. In addition, S receives, from the investment of idle funds in 
short-term securities, $15,000 of gross interest income and $5,000 of 
gain.
    (ii) S's gross receipts are calculated as follows:

  $100,000  Gross receipts from operations
    15,000  Gross interest receipts
     5,000  Gain on sale of securities
-----------
   120,000  Total gross receipts
 

    (iii) S's passive investment income is determined as follows:

   $15,000  Gross interest receipts
     5,000  Gain on sale of securities,
-----------
    20,000  Total passive investment income
 

    (iv) S's passive investment income percentage for its first year as 
an S corporation is 16.67% ($20,000/$120,000). This does not exceed 25 
percent of S's gross receipts and consequently the three-year period 
described in section 1362(d)(3) does not begin to run.

[T.D. 8449, 57 FR 55449, Nov. 25, 1992; 58 FR 15274, Mar. 22, 1993, as 
amended by T.D. 8869, 65 FR 3854, Jan. 25, 2000; T.D. 8995, 67 FR 34610, 
May 15, 2002; T.D. 9914, 85 FR 66478, Oct. 20, 2020]

[[Page 877]]



Sec.  1.1362-3  Treatment of S termination year.

    (a) In general. If an S election terminates under section 1362(d) on 
a date other than the first day of a taxable year of the corporation, 
the corporation's taxable year in which the termination occurs is an S 
termination year. The portion of the S termination year ending at the 
close of the day prior to the termination is treated as a short taxable 
year for which the corporation is an S corporation (the S short year). 
The portion of the S termination year beginning on the day the 
termination is effective is treated as a short taxable year for which 
the corporation is a C corporation (the C short year). Except as 
provided in paragraphs (b) and (c)(1) of this section, the corporation 
allocates income or loss for the entire year on a pro rata basis as 
described in section 1362(e)(2). To the extent that income or loss is 
not allocated on a pro rata basis under this section, items of income, 
gain, loss, deduction, and credit are assigned to each short taxable 
year on the basis of the corporation's normal method of accounting as 
determined under section 446. See, however, Sec.  1.1502-
76(b)(1)(ii)(A)(2) for special rules for an S election that terminates 
under section 1362(d) immediately before the S corporation becomes a 
member of a consolidated group (within the meaning of Sec.  1.1502-
1(h)). See Sec.  1.460-4(k)(3)(iv)(D) for rules relating to the 
computation of the S corporation's income or loss from a contract 
accounted for under a long-term contract method of accounting in the S 
termination year.
    (b) Allocations other than pro rata--(1) Elections under section 
1362(e)(3). The pro rata allocation rules of section 1362(e)(2) do not 
apply if the corporation elects to allocate its S termination year 
income on the basis of its normal tax accounting method. This election 
may be made only with the consent of each person who is a shareholder in 
the corporation at any time during the S short year and of each person 
who is a shareholder in the corporation on the first day of the C short 
year. See Sec.  1.1362-6(a) for rules concerning the time and manner of 
making this election.
    (2) Purchase of stock treated as an asset purchase. The pro rata 
allocation rules of section 1362(e)(2) do not apply with respect to any 
item resulting from the application of section 338.
    (3) 50 percent change in ownership during S termination year. The 
pro rata allocation rules of section 1362(e)(2) do not apply if at any 
time during the S termination year, as a result of sales or exchanges of 
stock in the corporation during that year, there is a change in 
ownership of 50 percent or more of the issued and outstanding shares of 
stock of the corporation. If stock has already been sold or exchanged 
during the S termination year, subsequent sales or exchanges of that 
stock are not taken into account for purposes of this paragraph (b)(3).
    (c) Special rules--(1) S corporation that is a partner in a 
partnership. For purposes of section 706(c) only, the termination of the 
election of an S corporation that is a partner in a partnership during 
any portion of the S short year under Sec.  1.1362-2 (a) or (b), is 
treated as a sale or exchange of the corporation's entire interest in 
the partnership on the last day of the S short year, if--
    (i) The pro rata allocation rules do not apply to the corporation; 
and
    (ii) Any taxable year of the partnership ends with or within the C 
short year.
    (2) Tax for the C short year. The taxable income for the C short 
year is determined on an annualized basis as described in section 
1362(e)(5).
    (3) Each short year treated as taxable year--(i) In general. Except 
as otherwise provided in paragraph (c)(4) of this section, the S and C 
short years are treated as two separate years for purposes of all 
provisions of the Internal Revenue Code.
    (ii) Application of section 163(j). For purposes of section 163(j), 
a separate limitation (as defined in Sec.  1.163(j)-1(b)(36)) applies to 
each S short year and each C short year. Any items necessary to 
determine the amount of business interest expense (as defined in Sec.  
1.163(j)-1(b)(3)) that are deducted in each S short year or C short year 
must be allocated between the S short year and C short year in 
accordance with an allocation methodology provided in section 1362(e).

[[Page 878]]

    (4) Year for carryover purposes. The S and C short years are treated 
as one year for purposes of determining the number of taxable years to 
which any item may be carried back or forward by the corporation.
    (5) Due date for S short year return. The date by which the return 
for the S short year must be filed is the same as the date by which the 
return for the C short year must be filed (including extensions).
    (6) Year in which income from S short year is includible. A 
shareholder must include in taxable income the shareholder's pro rata 
share of the items described in section 1366(a) for the S short year for 
the taxable year with or within which the S termination year ends.
    (d) Examples The provisions of this section are illustrated by the 
following examples:

    (1) Example 1.--S termination year not created.
    (i) On January 1, 1993, the first day of its taxable year, a 
subchapter C corporation had three eligible shareholders. During 1993, 
the corporation properly elected to be treated as an S corporation 
effective January 1, 1994, the first day of the succeeding taxable year. 
Subsequently, a transfer of some of the stock in the corporation was 
made to an ineligible shareholder. The ineligible shareholder still 
holds the stock on January 1, 1994.
    (ii) The corporation fails to meet the definition of a small 
business corporation on January 1, 1994, and its election is treated as 
having terminated on that date. See Sec.  1.1362-2(b)(2) for the 
termination rules. Because the corporation ceases to be a small business 
corporation on the first day of a taxable year, an S termination year is 
not created. In addition, if the corporation in the future meets the 
definition of a small business corporation and desires to elect to be 
treated as an S corporation, the corporation is automatically granted 
consent to reelect before the expiration of the 5-year waiting period. 
See Sec.  1.1362-5 for special rules concerning automatic consent to 
reelect.
    (2) Example 2. More than 50 percent change in ownership during S 
short year.
    A, an individual, owns all 100 outstanding shares of stock of S, a 
calendar year S corporation. On January 31, 1993, A sells 60 shares of S 
stock to B, an individual. On June 1, 1993, A sells 5 shares of S stock 
to PRS, a partnership. S ceases to be a small business corporation on 
June 1, 1993, and pursuant to section 1362(d)(2), its election 
terminates on that date. Because there was a more than 50 percent change 
in ownership of the issued and outstanding shares of S stock, S must 
assign the items of income, loss, deduction, or credit for the S 
termination year to the two short taxable years on the basis of S's 
normal method of accounting under the rules of paragraph (b)(3) of this 
section.
    (3) Example 3. More than 50 percent change in ownership during C 
short year.
    A, an individual, owns all 100 outstanding shares of stock of S, a 
calendar year S corporation. On June 1, 1993, A sells 5 shares of S 
stock to PRS, a partnership. S ceases to be a small business corporation 
on that date and pursuant to section 1362(d)(3), its election terminates 
on that date. On July 1, 1993, A sells 60 shares of S stock to B, an 
individual. Since there was a more than 50 percent change in ownership 
of the issued and outstanding shares of S stock during the S termination 
year, S must assign the items of income, loss, deduction, or credit for 
the S termination year to the two short taxable years on the basis of 
S's normal method of accounting under the rules of paragraph (b)(3) of 
this section.
    (4) Example 4. Stock acquired other than by sale or exchange.
    C and D are shareholders in S, a calendar year S corporation. Each 
owns 50 percent of the issued and outstanding shares of the corporation 
on December 31, 1993. On March 1, 1994, C makes a gift of his entire 
shareholder interest to T, a trust not permitted as a shareholder under 
section 1361(c)(2). S ceases to be a small business corporation on March 
1, 1994, and pursuant to section 1362(d)(2), its S corporation election 
terminates effective on that date. As a result of the gift, T owns 50 
percent of S's issued and outstanding stock. However, because T acquired 
the stock by

[[Page 879]]

gift from C rather than by sale or exchange, there has not been a more 
than 50 percent change in ownership by sale or exchange of S that would 
cause the rules of paragraph (b)(3) of this section to apply.

[T.D. 8449, 57 FR 55452, Nov. 25, 1992, as amended by T.D. 8842, 64 FR 
61205, Nov. 10, 1999; T.D. 9137, 69 FR 42559, July 16, 2004; T.D. 9905, 
85 FR 56842, Sept. 14, 2020]



Sec.  1.1362-4  Inadvertent terminations and inadvertently invalid elections.

    (a) In general. A corporation is treated as continuing to be an S 
corporation or a QSub (or, an invalid election to be either an S 
corporation or a QSub is treated as valid) during the period specified 
by the Commissioner if--
    (1) The corporation made a valid election under section 1362(a) or 
section 1361(b)(3) and the election terminated or the corporation made 
an election under section 1362(a) or section 1361(b)(3) that was 
invalid;
    (2) The Commissioner determines that the termination or invalidity 
was inadvertent;
    (3) Within a reasonable period of time after discovery of the 
terminating event or invalid election, steps were taken so that the 
corporation for which the election was made or the termination occurred 
is a small business corporation or a QSub, as the case may be, or to 
acquire the required shareholder consents; and
    (4) The corporation and shareholders agree to adjustments that the 
Commissioner may require for the period.
    (b) Inadvertent termination or inadvertently invalid election. For 
purposes of paragraph (a) of this section, the determination of whether 
a termination or invalid election was inadvertent is made by the 
Commissioner. The corporation has the burden of establishing that under 
the relevant facts and circumstances the Commissioner should determine 
that the termination or invalid election was inadvertent. The fact that 
the terminating event or invalidity of the election was not reasonably 
within the control of the corporation and, in the case of a termination, 
was not part of a plan to terminate the election, or the fact that the 
terminating event or circumstance took place without the knowledge of 
the corporation, notwithstanding its due diligence to safeguard itself 
against such an event or circumstance, tends to establish that the 
termination or invalidity of the election was inadvertent.
    (c) Corporation's request for determination of an inadvertent 
termination or invalid election. A corporation that believes that the 
termination or invalidity of its election was inadvertent may request a 
determination from the Commissioner that the termination or invalidity 
of its election was inadvertent. The request is made in the form of a 
ruling request and should set forth all relevant facts pertaining to the 
event or circumstance including, but not limited to, the facts described 
in paragraph (b) of this section, the date of the corporation's election 
(or intended election) under section 1362(a) or 1361(b)(3), a detailed 
explanation of the event or circumstance causing the termination or 
invalidity, when and how the event or circumstance was discovered, and 
the steps taken under paragraph (a)(3) of this section.
    (d) Adjustments. The Commissioner may require any adjustments that 
are appropriate. In general, the adjustments required should be 
consistent with the treatment of the corporation as an S corporation or 
QSub during the period specified by the Commissioner. In the case of 
stock held by an ineligible shareholder that causes an inadvertent 
termination or invalid election for an S corporation under section 
1362(f), the Commissioner may require the ineligible shareholder to be 
treated as a shareholder of the S corporation during the period the 
ineligible shareholder actually held stock in the corporation. Moreover, 
the Commissioner may require protective adjustments that prevent the 
loss of any revenue due to the holding of stock by an ineligible 
shareholder (for example, a nonresident alien).
    (e) Corporation and shareholder consents. The corporation and all 
persons who were shareholders of the corporation at any time during the 
period specified by the Commissioner must consent to any adjustments 
that the

[[Page 880]]

Commissioner may require. Each consent should be in the form of a 
statement agreeing to make the adjustments. The statement must be signed 
by the shareholder (in the case of shareholder consent) or a person 
authorized to sign the return required by section 6037 (in the case of 
corporate consent). See Sec.  1.1362-6(b)(2) for persons required to 
sign consents. A shareholder's consent statement should include the 
name, address, and taxpayer identification numbers of the corporation 
and shareholder, the number of shares of stock owned by the shareholder, 
and the dates on which the shareholder owned any stock. The corporate 
consent statement should include the name, address, and taxpayer 
identification numbers of the corporation and each shareholder.
    (f) Status of corporation. The status of the corporation after the 
terminating event or invalid election and before the determination of 
inadvertence is determined by the Commissioner. Inadvertent termination 
or inadvertent invalid election relief may be granted retroactively for 
all years for which the terminating event or circumstance giving rise to 
invalidity is effective, in which case the corporation is treated as if 
its election was valid or had not terminated. Alternatively, relief may 
be granted only for the period in which the corporation became eligible 
for subchapter S or QSub treatment, in which case the corporation is 
treated as a C corporation or, in the case of a QSub with an 
inadvertently terminated or invalid election, as a separate C 
corporation, during the period for which the corporation was not 
eligible for its intended status.
    (g) Effective/applicability date. Paragraphs (a), (b), (c), (d), and 
(f) of this section are effective on August 14, 2008.

[T.D. 8449, 57 FR 55453, Nov. 25, 1992, as amended by T.D. 9422, 73 FR 
47530, Aug. 14, 2008]



Sec.  1.1362-5  Election after termination.

    (a) In general. Absent the Commissioner's consent, an S corporation 
whose election has terminated (or a successor corporation) may not make 
a new election under section 1362(a) for five taxable years as described 
in section 1362(g). However, the Commissioner may permit the corporation 
to make a new election before the 5-year period expires. The corporation 
has the burden of establishing that under the relevant facts and 
circumstances, the Commissioner should consent to a new election. The 
fact that more than 50 percent of the stock in the corporation is owned 
by persons who did not own any stock in the corporation on the date of 
the termination tends to establish that consent should be granted. In 
the absence of this fact, consent ordinarily is denied unless the 
corporation shows that the event causing termination was not reasonably 
within the control of the corporation or shareholders having a 
substantial interest in the corporation and was not part of a plan on 
the part of the corporation or of such shareholders to terminate the 
election.
    (b) Successor corporation. A corporation is a successor corporation 
to a corporation whose election under section 1362 has been terminated 
if--
    (1) 50 percent or more of the stock of the corporation (the new 
corporation) is owned, directly or indirectly, by the same persons who, 
on the date of the termination, owned 50 percent or more of the stock of 
the corporation whose election terminated (the old corporation); and
    (2) Either the new corporation acquires a substantial portion of the 
assets of the old corporation, or a substantial portion of the assets of 
the new corporation were assets of the old corporation.
    (c) Automatic consent after certain terminations. A corporation may, 
without requesting the Commissioner's consent, make a new election under 
section 1362(a) before the 5-year period described in section 1362(g) 
expires if the termination occurred because the corporation--
    (1) Revoked its election effective on the first day of the first 
taxable year for which its election was to be effective (see Sec.  
1.1362-2(a)(2)); or
    (2) Failed to meet the definition of a small business corporation on 
the first day of the first taxable year for which its election was to be 
effective (see Sec.  1.1362-2(b)(2)).

[T.D. 8449, 57 FR 55454, Nov. 25, 1992]

[[Page 881]]



Sec.  1.1362-6  Elections and consents.

    (a) Time and manner of making elections--(1) In general. An election 
statement made under this section must identify the election being made, 
set forth the name, address, and taxpayer identification number of the 
corporation, and be signed by a person authorized to sign the return 
required to be filed under section 6037.
    (2) Election to be an S corporation--(i) Manner of making election. 
A small business corporation makes an election under section 1362(a) to 
be an S corporation by filing a completed Form 2553. The election form 
must be filed with the service center designated in the instructions 
applicable to Form 2553. The election is not valid unless all 
shareholders of the corporation at the time of the election consent to 
the election in the manner provided in paragraph (b) of this section. 
However, once a valid election is made, new shareholders need not 
consent to that election.
    (ii) Time of making election--(A) In general. The election described 
in paragraph (a)(2)(i) of this section may be made by a small business 
corporation at any time during the taxable year that immediately 
precedes the taxable year for which the election is to be effective, or 
during the taxable year for which the election is to be effective 
provided that the election is made before the 16th day of the third 
month of the year. If a corporation makes an election for a taxable 
year, and the election meets all the requirements of this section but is 
made during the period beginning after the 15th day of the third month 
of the taxable year, the election is treated as being made for the 
following taxable year provided that the corporation meets all the 
requirements of section 1361(b) at the time the election is made. For 
taxable years of 2\1/2\ months or less, an election made before the 16th 
day of the third month after the first day of the taxable year is 
treated as made during that year.
    (B) Elections made during the first 2\1/2\ months treated as made 
for the following taxable year. A timely election made by a small 
business corporation during the taxable year for which it is intended to 
be effective is nonetheless treated as made for the following taxable 
year if--
    (1) The corporation is not a small business corporation during the 
entire portion of the taxable year which occurs before the date the 
election is made; or
    (2) Any person who held stock in the corporation at any time during 
the portion of the taxable year which occurs before the time the 
election is made, and who does not hold stock at the time the election 
is made, does not consent to the election.
    (C) Definition of month and beginning of the taxable year. Month 
means a period commencing on the same numerical day of any calendar 
month as the day of the calendar month on which the taxable year began 
and ending with the close of the day preceding the numerically 
corresponding day of the succeeding calendar month or, if there is no 
corresponding day, with the close of the last day of the succeeding 
calendar month. In addition, the taxable year of a new corporation 
begins on the date that the corporation has shareholders, acquires 
assets, or begins doing business, whichever is the first to occur. The 
existence of incorporators does not necessarily begin the taxable year 
of a new corporation.
    (iii) Examples. The provisions of this section are illustrated by 
the following examples:

    Example 1. Effective election; no prior taxable year. A calendar 
year small business corporation begins its first taxable year on January 
7, 1993. To be an S corporation beginning with its first taxable year, 
the corporation must make the election set forth in this section during 
the period that begins January 7, 1993, and ends before March 22, 1993. 
Because the corporation had no taxable year immediately preceding the 
taxable year for which the election is to be effective, an election made 
earlier than January 7, 1993, will not be valid.
    Example 2. Effective election; taxable year less than 2 \1/2\ 
months. A calendar year small business corporation begins its first 
taxable year on November 8, 1993. To be an S corporation beginning with 
its first taxable year, the corporation must make the election set forth 
in this section during the period that begins November 8, 1993, and ends 
before January 23, 1994.
    Example 3. Election effective for the following taxable year; 
ineligible shareholder. On January 1, 1993, two individuals and a 
partnership

[[Page 882]]

own all of the stock of a calendar year subchapter C corporation. On 
January 31, 1993, the partnership dissolved and distributed its shares 
in the corporation to its five partners, all individuals. On February 
28, 1993, the seven shareholders of the corporation consented to the 
corporation's election of subchapter S status. The corporation files a 
properly completed Form 2533 on March 2, 1993. The corporation is not 
eligible to be a subchapter S corporation for the 1993 taxable year 
because during the period of the taxable year prior to the election it 
had an ineligible shareholder. However, under paragraph (a)(2)(ii)(B) of 
this section, the election is treated as made for the corporation's 1994 
taxable year.

    (3) Revocation of S election--(i) Manner of revoking election. To 
revoke an election, the corporation files a statement that the 
corporation revokes the election made under section 1362(a). The 
statement must be filed with the service center where the election was 
properly filed. The revocation statement must include the number of 
shares of stock (including non-voting stock) issued and outstanding at 
the time the revocation is made. A revocation may be made only with the 
consent of shareholders who, at the time the revocation is made, hold 
more than one-half of the number of issued and outstanding shares of 
stock (including non-voting stock) of the corporation. Each shareholder 
who consents to the revocation must consent in the manner required under 
paragraph (b) of this section. In addition, each consent should indicate 
the number of issued and outstanding shares of stock (including non-
voting stock) held by each shareholder at the time of the revocation.
    (ii) Time of revoking election. For rules concerning when a 
revocation is effective, see Sec.  1.1362-2(a)(2).
    (iii) Examples. The principles of this paragraph (a)(3) are 
illustrated by the following examples:

    Example 1. Revocation; consent of shareholders owning more than one-
half of issued and outstanding shares. A calendar year S corporation has 
issued an outstanding 40,000 shares of class A voting common stock and 
20,000 shares of class B non-voting common stock. The corporation wishes 
to revoke its election of subchapter S status. Shareholders owning 
11,000 shares of class A stock sign revocation consents. Shareholders 
owning 20,000 shares of class B stock sign revocation consents. The 
corporation has obtained the required shareholder consent to revoke its 
subchapter S election because shareholders owning more than one-half of 
the total number of issued and outstanding shares of stock of the 
corporation consented to the revocation.
    Example 2. Effective prospective revocation. In June 1993, a 
calendar year S corporation determines that it will revoke its 
subchapter S election effective August 1, 1993. To do so it must file 
its revocation statement with consents attached on or before August 1, 
1993, and the statement must indicate that the revocation is intended to 
be effective August 1, 1993.

    (4) Rescission of revocation--(i) Manner of rescinding a revocation. 
To rescind a revocation, the corporation files a statement that the 
corporation rescinds the revocation made under section 1362(d)(1). The 
statement must be filed with the service center where the revocation was 
properly filed. A rescission may be made only with the consent (in the 
manner required under paragraph (b)(1) of this section) of each person 
who consented to the revocation and of each person who became a 
shareholder of the corporation within the period beginning on the first 
day after the date the revocation was made and ending on the date on 
which the rescission is made.
    (ii) Time of rescinding a revocation. If the rescission statement is 
filed before the revocation becomes effective and is filed with proper 
service center, the rescission is effective on the date it is so filed.
    (5) Election not to apply pro rata allocation. To elect not to apply 
the pro rata allocation rules to an S termination year, a corporation 
files a statement that it elects under section 1362(e)(3) not to apply 
the rules provided in section 1362(e)(2). In addition to meeting the 
requirements of paragraph (a)(1) of this section, the statement must set 
forth the cause of the termination and the date thereof. The statement 
must be filed with the corporation's return for the C short year. This 
election may be made only with the consent of all persons who are 
shareholders of the corporation at any time during the S short year and 
all persons who are shareholders of the corporation on the first day of 
the C short year (in the manner required under paragraph (b)(1) of this 
section).

[[Page 883]]

    (b) Shareholders' consents--(1) Manner of consents in general. A 
shareholder's consent required under paragraph (a) of this section must 
be in the form of a written statement that sets forth the name, address, 
and taxpayer identification number of the shareholder, the number of 
shares of stock owned by the shareholder, the date (or dates) on which 
the stock was acquired, the date on which the shareholder's taxable year 
ends, the name of the S corporation, the corporation's taxpayer 
identification number, and the election to which the shareholder 
consents. The statement must be signed by the shareholder under 
penalties of perjury. Except as provided in paragraph (b)(3)(iii) of 
this section, the election of the corporation is not valid if any 
required consent is not filed in accordance with the rules contained in 
this paragraph (b). The consent statement should be attached to the 
corporation's election statement.
    (2) Persons required to consent. The following rules apply in 
determining persons required to consent:
    (i) Community interest in stock. When stock of the corporation is 
owned by husband and wife as community property (or the income from the 
stock is community property), or is owned by tenants in common, joint 
tenants, or tenants by the entirety, each person having a community 
interest in the stock or income therefrom and each tenant in common, 
joint tenant and tenant by the entirety must consent to the election.
    (ii) Minor. The consent of a minor must be made by the minor or by 
the legal representative of the minor (or by a natural or an adoptive 
parent of the minor if no legal representative has been appointed).
    (iii) Estate. The consent of an estate must be made by an executor 
or administrator thereof, or by any other fiduciary appointed by 
testamentary instrument or appointed by the court having jurisdiction 
over the administration of the estate.
    (iv) Trusts. In the case of a trust described in section 
1361(c)(2)(A) (including a trust treated under section 1361(d)(1)(A) as 
a trust described in section 1361(c)(2)(A)(i) and excepting an electing 
small business trust described in section 1361(c)(2)(A)(v) (ESBT)), only 
the person treated as the shareholder for purposes of section 1361(b)(1) 
must consent to the election. When stock of the corporation is held by a 
trust, both husband and wife must consent to any election if the husband 
and wife have a community interest in the trust property. See paragraph 
(b)(2)(i) of this section for rules concerning community interests in S 
corporation stock. In the case of an ESBT, the trustee and the owner of 
any portion of the trust that consists of the stock in one or more S 
corporations under subpart E, part I, subchapter J, chapter 1 of the 
Internal Revenue Code must consent to the S corporation election. If 
there is more than one trustee, the trustee or trustees with authority 
to legally bind the trust must consent to the S corporation election.
    (3) Special rules for consent of shareholder to election to be an S 
corporation--(i) In general. The consent of a shareholder to an election 
by a small business corporation under section 1362(a) may be made on 
Form 2553 or on a separate statement in the manner described in 
paragraph (b)(1) of this section. In addition, the separate statement 
must set forth the name, address, and taxpayer identification number of 
the corporation. A shareholder's consent is binding and may not be 
withdrawn after a valid election is made by the corporation. Each person 
who is a shareholder (including any person who is treated as a 
shareholder under section 1361(c)(2)(B)) at the time the election is 
made) must consent to the election. If the election is made before the 
16th day of the third month of the taxable year and is intended to be 
effective for that year, each person who was a shareholder (including 
any person who was treated as a shareholder under section 1361(c)(2)(B)) 
at any time during the portion of that year which occurs before the time 
the election is made, and who is not a shareholder at the time the 
election is made, must also consent to the election. If the election is 
to be effective for the following taxable year, no consent need be filed 
by any shareholder who is not a shareholder on the date of the election. 
Any person who is considered to be a shareholder under applicable State

[[Page 884]]

law solely by virtue of his or her status as an incorporator is not 
treated as a shareholder for purposes of this paragraph (b)(3)(i).
    (ii) Examples. The principles of this section are illustrated by the 
following examples:

    Example 1. Effective election; shareholder consents. On January 1, 
1993, the first day of its taxable year, a subchapter C corporation had 
15 shareholders. On January 30, 1993, two of the C corporation's 
shareholders, A and B, both individuals, sold their shares in the 
corporation to P, Q, and R, all individuals. On March 1, 1993, the 
corporation filed its election to be an S corporation for the 1993 
taxable year. The election will be effective (assuming the other 
requirements of section 1361(b) are met) provided that all of the 
shareholders as of March 1, 1993, as well as former shareholders A and 
B, consent to the election.
    Example 2. Consent of new shareholder unnecessary. On January 1, 
1993, three individuals own all of the stock of a calendar year 
subchapter C corporation. On April 15, 1993, the corporation, in 
accordance with paragraph (a)(2) of this section, files a properly 
completed Form 2553. The corporation anticipates that the election will 
be effective beginning January 1, 1994, the first day of the succeeding 
taxable year. On October 1, 1993, the three shareholders collectively 
sell 75% of their shares in the corporation to another individual. On 
January 1, 1994, the corporation's shareholders are the three original 
individuals and the new shareholder. Because the election was valid and 
binding when made, it is not necessary for the new shareholder to 
consent to the election. The corporation's subchapter S election is 
effective on January 1, 1994 (assuming the other requirements of section 
1361(b) are met).

    (iii) Extension of time for filing consents to an election--(A) In 
general. An election that is timely filed for any taxable year and that 
would be valid except for the failure of any shareholder to file a 
timely consent is not invalid if consents are filed as required under 
paragraph (b)(3)(iii)(B) of this section and it is shown to the 
satisfaction of the district director or director of the service center 
with which the corporation files its income tax return that--
    (1) There was reasonable cause for the failure to file the consent;
    (2) The request for the extension of time to file a consent is made 
within a reasonable time under the circumstances; and
    (3) The interests of the Government will not be jeopardized by 
treating the election as valid.
    (B) Required consents. Consents must be filed within the extended 
period of time as may be granted by the Internal Revenue Service, by all 
persons who--
    (1) Were shareholders of the corporation at any time during the 
period beginning as of the date of the invalid election and ending on 
the date on which an extension of time is granted in accordance with 
this paragraph (b)(3)(iii); and
    (2) Have not previously consented to the election.

[T.D. 8449, 57 FR 55454, Nov. 25, 1992, as amended by T.D. 8994, 67 FR 
34400, May 14, 2002]



Sec.  1.1362-7  Effective dates.

    (a) In general. The provisions of Sec. Sec.  1.1362-1 through 
1.1362-6 apply to taxable years of corporations beginning after December 
31, 1992. For taxable years to which these regulations do not apply, 
corporations and shareholders subject to the provisions of section 1362 
must take reasonable return positions taking into consideration the 
statute; its legislative history; the provisions of Sec. Sec.  18.1362-1 
through 18.1362-5 (see 26 CFR part 18 as contained in the CFR edition 
revised as of April 1, 1992). In addition, following these regulations 
is a reasonable return position. See Notice 92-56, 1992-49 I.R.B. (see 
Sec.  601.601(d)(2)(ii)(b) of this chapter), for additional guidance 
regarding reasonable return positions for years to which Sec. Sec.  
1.362-1 through 1.1362-6 do not apply. Section 1.1362-6(b)(2)(iv) is 
applicable for taxable years beginning on and after May 14, 2002.
    (b) Special effective date for passive investment income provisions. 
For taxable years of an S corporation and all affected shareholders that 
are not closed, the S corporation and all affected shareholders may 
elect to apply the provisions of Sec.  1.1362-2(c)(5). To make the 
election, the corporation and all affected shareholders must file a 
return or an amended return that is consistent with these rules for the 
taxable year for which the election is made and

[[Page 885]]

each subsequent taxable year. For purposes of this section, affected 
shareholders means all shareholders who received distributive shares of 
S corporation items in the taxable year for which the election is made 
and all shareholders of the S corporation for all subsequent taxable 
years. However, the Commissioner may, in appropriate circumstances, 
permit taxpayers to make this election even if all affected shareholders 
cannot file consistent returns.

[T.D. 8449, 57 FR 55456, Nov. 25, 1992, as amended by T.D. 8994, 67 FR 
34401, May 14, 2002]



Sec.  1.1362-8  Dividends received from affiliated subsidiaries.

    (a) In general. For purposes of section 1362(d)(3), if an S 
corporation holds stock in a C corporation meeting the requirements of 
section 1504(a)(2), the term passive investment income does not include 
dividends from the C corporation to the extent those dividends are 
attributable to the earnings and profits of the C corporation derived 
from the active conduct of a trade or business (active earnings and 
profits). For purposes of applying section 1362(d)(3), earnings and 
profits of a C corporation are active earnings and profits to the extent 
that the earnings and profits are derived from activities that would not 
produce passive investment income (as defined in section 1362(d)(3)) if 
the C corporation were an S corporation.
    (b) Determination of active or passive earnings and profits--(1) In 
general. An S corporation may use any reasonable method to determine the 
amount of dividends that are not treated as passive investment income 
under section 1362(d)(3)(E). Paragraph (b)(5) of this section describes 
a method of determining the amount of dividends that are not treated as 
passive investment income under section 1362(d)(3)(E) that is deemed to 
be reasonable under all circumstances.
    (2) Lower tier subsidiaries. If a C corporation subsidiary (upper 
tier corporation) holds stock in another C corporation (lower tier 
subsidiary) meeting the requirements of section 1504(a)(2), the upper 
tier corporation's gross receipts attributable to a dividend from the 
lower tier subsidiary are considered to be derived from the active 
conduct of a trade or business to the extent the lower tier subsidiary's 
earnings and profits are attributable to the active conduct of a trade 
or business by the subsidiary under paragraph (b) (1), (3), (4), or (5) 
of this section. For purposes of this section, distributions by the 
lower tier subsidiary will be considered attributable to active earnings 
and profits according to the rule in paragraph (c) of this section. This 
paragraph (b)(2) does not apply to any member of a consolidated group 
(as defined in Sec.  1.1502-1(h)).
    (3) De minimis exception. If less than 10 percent of a C 
corporation's earnings and profits for a taxable year are derived from 
activities that would produce passive investment income if the C 
corporation were an S corporation, all earnings and profits produced by 
the corporation during that taxable year are considered active earnings 
and profits.
    (4) Special rules for earnings and profits accumulated by a C 
corporation prior to 80 percent acquisition. A C corporation may treat 
all earnings and profits accumulated by the corporation in all taxable 
years ending before the S corporation held stock meeting the 
requirements of section 1504(a)(2) as active earnings and profits in the 
same proportion as the C corporation's active earnings and profits for 
the three taxable years ending prior to the time when the S corporation 
acquired 80 percent of the C corporation bears to the C corporation's 
total earnings and profits for those three taxable years.
    (5) Gross receipts safe harbor. A corporation may treat its earnings 
and profits for a year as active earnings and profits in the same 
proportion as the corporation's gross receipts (as defined in Sec.  
1.1362-2(c)(4)) derived from activities that would not produce passive 
investment income (if the C corporation were an S corporation), 
including those that do not produce passive investment income under 
paragraphs (b)(2) through (b)(4) of this section, bear to the 
corporation's total gross receipts for the year in which the earnings 
and profits are produced.
    (c) Allocating distributions to active or passive earnings and 
profits--(1) Distributions from current earnings and profits.

[[Page 886]]

Dividends distributed by a C corporation from current earnings and 
profits are attributable to active earnings and profits in the same 
proportion as current active earnings and profits bear to total current 
earnings and profits of the C corporation.
    (2) Distributions from accumulated earnings and profits. Dividends 
distributed by a C corporation out of accumulated earnings and profits 
for a taxable year are attributable to active earnings and profits in 
the same proportion as accumulated active earnings and profits for that 
taxable year bear to total accumulated earnings and profits for that 
taxable year immediately prior to the distribution.
    (3) Adjustments to active earnings and profits. For purposes of 
applying paragraph (c) (1) or (2) of this section to a distribution, the 
active earnings and profits of a corporation shall be reduced by the 
amount of any prior distribution properly treated as attributable to 
active earnings and profits from the same taxable year.
    (4) Special rules for consolidated groups. For purposes of applying 
section 1362(d)(3) and this section to dividends received by an S 
corporation from the common parent of a consolidated group (as defined 
in Sec.  1.1502-1(h)), the following rules apply--
    (i) The current earnings and profits, accumulated earnings and 
profits, and active earnings and profits of the common parent shall be 
determined under the principles of Sec.  1.1502-33 (relating to earnings 
and profits of any member of a consolidated group owning stock of 
another member); and
    (ii) The gross receipts of the common parent shall be the sum of the 
gross receipts of each member of the consolidated group (including the 
common parent), adjusted to eliminate gross receipts from intercompany 
transactions (as defined in Sec.  1.1502-13(b)(1)(i)).
    (d) Examples. The following examples illustrate the principles of 
this section:

    Example 1. (i) X, an S corporation, owns 85 percent of the one class 
of stock of Y. On December 31, 2002, Y declares a dividend of $100 ($85 
to X), which is equal to Y's current earnings and profits. In 2002, Y 
has total gross receipts of $1,000, $200 of which would be passive 
investment income if Y were an S corporation.
    (ii) One-fifth ($200/$1,000) of Y's gross receipts for 2002 is 
attributable to activities that would produce passive investment income. 
Accordingly, one-fifth of the $100 of earnings and profits is passive, 
and $17 (\1/5\ of $85) of the dividend from Y to X is passive investment 
income.
    Example 2. (i) The facts are the same as in Example 1, except that Y 
owns 90 percent of the stock of Z. Y and Z do not join in the filing of 
a consolidated return. In 2002, Z has gross receipts of $15,000, $12,000 
of which are derived from activities that would produce passive 
investment income. On December 31, 2002, Z declares a dividend of $1,000 
($900 to Y) from current earnings and profits.
    (ii) Four-fifths ($12,000/$15,000) of the dividend from Z to Y are 
attributable to passive earnings and profits. Accordingly, $720 (\4/5\ 
of $900) of the dividend from Z to Y is considered gross receipts from 
an activity that would produce passive investment income. The $900 
dividend to Y gives Y a total of $1,900 ($1,000 + $900) in gross 
receipts, $920 ($200 + $720) of which is attributable to passive 
investment income-producing activities. Under these facts, $41 ($920/
$1,900 of $85) of Y's distribution to X is passive investment income to 
X.

    (e) Effective date. This section applies to dividends received in 
taxable years beginning on or after January 20, 2000; however, taxpayers 
may elect to apply the regulations in whole, but not in part, for 
taxable years beginning on or after January 1, 2000, provided all 
affected taxpayers apply the regulations in a consistent manner. To make 
this election, the corporation and all affected taxpayers must file a 
return or an amended return that is consistent with these rules for the 
taxable year for which the election is made. For purposes of this 
section, affected taxpayers means all taxpayers whose returns are 
affected by the election to apply the regulations.

[T.D. 8869, 65 FR 3854, Jan. 25, 2000; 65 FR 16318, Mar. 28, 2000]



Sec.  1.1363-1  Effect of election on corporation.

    (a) Exemption of corporation from income tax--(1) In general. Except 
as provided in this paragraph (a), a small business corporation that 
makes a valid election under section 1362(a) is exempt from the taxes 
imposed by chapter 1 of the Internal Revenue Code with respect to 
taxable years of the corporation for which the election is in effect.

[[Page 887]]

    (2) Corporate level taxes. An S corporation is not exempt from the 
tax imposed by section 1374 (relating to the tax imposed on certain 
built-in gains), or section 1375 (relating to the tax on excess passive 
investment income). See also section 1363(d) (relating to the recapture 
of LIFO benefits) for the rules regarding the payment by an S 
corporation of LIFO recapture amounts.
    (b) Computation of corporate taxable income. The taxable income of 
an S corporation is computed as described in section 1363(b).
    (c) Elections of the S corporation--(1) In general. Any elections 
(other than those described in paragraph (c)(2) of this section) 
affecting the computation of items derived from an S corporation are 
made by the corporation. For example, elections of methods of 
accounting, of computing depreciation, of treating soil and water 
conservation expenditures, and the option to deduct as expenses 
intangible drilling and development costs, are made by the corporation 
and not by the shareholders separately. All corporate elections are 
applicable to all shareholders.
    (2) Exceptions. (i) Each shareholder's pro rata share of expenses 
described in section 617 paid or accrued by the S corporation is treated 
according to the shareholder's method of treating those expenses, 
notwithstanding the treatment of the expenses by the corporation.
    (ii) Each shareholder may elect to amortize that shareholder's pro 
rata share of any qualified expenditure described in section 59(e) paid 
or accrued by the S corporation.
    (iii) Each shareholder's pro rata share of taxes described in 
section 901 paid or accrued by the S corporation to foreign countries or 
possessions of the United States (according to its method of treating 
those taxes) is treated according to the shareholder's method of 
treating those taxes, and each shareholder may elect to use the total 
amount either as a credit against tax or as a deduction from income.
    (d) Effective date. This section applies to taxable years of 
corporations beginning after December 31, 1992. For taxable years to 
which this section does not apply, corporations and shareholders subject 
to the provisions of section 1363 must take reasonable return positions 
taking into consideration the statute, its legislative history and these 
regulations. See Notice 92-56, 1992-49 I.R.B. (see Sec.  
601.601(d)(2)(ii)(b) of this chapter), for additional guidance regarding 
reasonable return positions for taxable years to which this section does 
not apply.

[T.D. 8449, 57 FR 55456, Nov. 25, 1992]



Sec.  1.1363-2  Recapture of LIFO benefits.

    (a) In general. A C corporation must include the LIFO recapture 
amount (as defined in section 1363(d)(3)) in its gross income--
    (1) In its last taxable year as a C corporation if the corporation 
inventoried assets under the LIFO method for its last taxable year 
before its S corporation election becomes effective; or
    (2) In the year of transfer by the C corporation to an S corporation 
of the LIFO inventory assets if paragraph (a)(1) of this section does 
not apply and the C corporation--
    (i) Inventoried assets under the LIFO method during the taxable year 
of the transfer of those LIFO inventory assets; and
    (ii) Transferred the LIFO inventory assets to the S corporation in a 
nonrecognition transaction (within the meaning of section 7701(a)(45)) 
in which the transferred assets constitute transferred basis property 
(within the meaning of section 7701(a)(43)).
    (b) LIFO inventory held indirectly through partnership. A C 
corporation must include the lookthrough LIFO recapture amount (as 
defined in paragraph (c)(4) of this section) in its gross income--
    (1) In its last taxable year as a C corporation if, on the last day 
of the corporation's last taxable year before its S corporation election 
becomes effective, the corporation held a lookthrough partnership 
interest (as defined in paragraph (c)(3) of this section); or
    (2) In the year of transfer by the C corporation to an S corporation 
of a lookthrough partnership interest if the corporation transferred its 
lookthrough partnership interest to the S corporation in a 
nonrecognition transaction (within the meaning of section 7701(a)(45)) 
in which the transferred interest constitutes transferred

[[Page 888]]

basis property (within the meaning of section 7701(a)(43)).
    (c) Definitions and special rules--(1) Recapture date. In the case 
of a transaction described in paragraph (a)(1) or (b)(1) of this 
section, the recapture date is the day before the effective date of the 
S corporation election. In the case of a transaction described in 
paragraph (a)(2) or (b)(2) of this section, the recapture date is the 
date of the transfer of the partnership interest to the S corporation.
    (2) Determination of LIFO recapture amount. The LIFO recapture 
amount shall be determined as of the end of the recapture date for 
transactions described in paragraph (a)(1) of this section, and as of 
the moment before the transfer occurs for transactions described in 
paragraph (a)(2) of this section.
    (3) Lookthrough partnership interest. A partnership interest is a 
lookthrough partnership interest if the partnership owns (directly or 
indirectly through one or more partnerships) assets accounted for under 
the last-in, first-out (LIFO) method (LIFO inventory).
    (4) Lookthrough LIFO recapture amount--(i) In general. For purposes 
of this section, a corporation's lookthrough LIFO recapture amount is 
the amount of income that would be allocated to the corporation, taking 
into account section 704(c) and Sec.  1.704-3, if the partnership sold 
all of its LIFO inventory for the inventory's FIFO value. For this 
purpose, the FIFO value of inventory is the inventory amount of the 
inventory assets under the first-in, first-out method of accounting 
authorized by section 471, determined in accordance with section 
1363(d)(4)(C).
    (ii) Determination of lookthrough LIFO recapture amount. Except as 
provided in paragraph (c)(4)(iii) of this section, the lookthrough LIFO 
recapture amount shall be determined as of the end of the recapture date 
for transactions described in paragraph (b)(1) of this section, and as 
of the moment before the transfer occurs for transactions described in 
paragraph (b)(2) of this section.
    (iii) Alternative rule. If the partnership is not otherwise required 
to determine the inventory amount of the inventory using the LIFO method 
(the LIFO value) on the recapture date, the partnership may determine 
the lookthrough LIFO recapture amount as though the FIFO and LIFO values 
of the inventory on the recapture date equaled the FIFO and LIFO values 
of the opening inventory for the partnership's taxable year that 
includes the recapture date. For this purpose, the opening inventory 
includes inventory contributed by a partner to the partnership on or 
before the recapture date and excludes inventory distributed by the 
partnership to a partner on or before the recapture date. A partnership 
that applies the alternative method of this paragraph (c)(4)(iii) to 
calculate the lookthrough LIFO recapture amount must take into account 
any adjustments to the partnership's basis in its LIFO inventory that 
result from transactions occurring after the start of the partnership's 
taxable year and before the end of the recapture date. For example, the 
lookthrough LIFO recapture amount must be adjusted to take into account 
any adjustments to the basis of LIFO inventory during that period under 
sections 734(b), 737(c), or 751(b).
    (d) Payment of tax. Any increase in tax caused by including the LIFO 
recapture amount or the lookthrough LIFO recapture amount in the gross 
income of the C corporation is payable in four equal installments. The C 
corporation must pay the first installment of this payment by the due 
date of its return, determined without regard to extensions, for the 
last taxable year it operated as a C corporation if paragraph (a)(1) or 
(b)(1) of this section applies, or for the taxable year of the transfer 
if paragraph (a)(2) or (b)(2) of this section applies. The three 
succeeding installments must be paid--
    (1) For a transaction described in paragraph (a)(1) or (b)(1) of 
this section, by the corporation that made the election under section 
1362(a) to be an S corporation, on or before the due date for the 
corporation's returns (determined without regard to extensions) for the 
succeeding three taxable years; and
    (2) For a transaction described in paragraph (a)(2) or (b)(2) of 
this section, by the transferee S corporation

[[Page 889]]

on or before the due date for the transferee corporation's returns 
(determined without regard to extensions) for the succeeding three 
taxable years.
    (e) Basis adjustments--(1) General rule. Appropriate adjustments to 
the basis of inventory are to be made to reflect any amount included in 
income under paragraph (a) of this section.
    (2) LIFO inventory owned through a partnership--(i) Basis of 
corporation's partnership interest. Appropriate adjustments to the basis 
of the corporation's lookthrough partnership interest are to be made to 
reflect any amount included in income under paragraph (b) of this 
section.
    (ii) Basis of partnership assets. A partnership directly holding 
LIFO inventory that is taken into account under paragraph (b) of this 
section may elect to adjust the basis of that LIFO inventory. In 
addition, a partnership that holds, through another partnership, LIFO 
inventory that is taken into account under paragraph (b) of this section 
may elect to adjust the basis of that partnership interest. Any 
adjustment under this paragraph (e)(2) to the basis of inventory held by 
the partnership is equal to the amount of LIFO recapture attributable to 
the inventory. Likewise, any adjustment under this paragraph (e)(2) to 
the basis of a lookthrough partnership interest held by the partnership 
is equal to the amount of LIFO recapture attributable to the interest. A 
basis adjustment under this paragraph (e)(2) is treated in the same 
manner and has the same effect as an adjustment to the basis of 
partnership property under section 743(b). See Sec.  1.743-1(j).
    (3) Election. A partnership elects to adjust the basis of its 
inventory and any lookthrough partnership interest that it owns by 
attaching a statement to its original or amended income tax return for 
the first taxable year ending on or after the date of the S corporation 
election or transfer described in paragraph (b) of this section. This 
statement shall state that the partnership is electing under this 
paragraph (e)(3) and must include the names, addresses, and taxpayer 
identification numbers of any corporate partner liable for tax under 
paragraph (d) of this section and of the partnership, as well as the 
amount of the adjustment and the portion of the adjustment that is 
attributable to each pool of inventory or lookthrough partnership 
interest that is held by the partnership.
    (f) Examples. The following examples illustrate the rules of this 
section:

    Example 1. (i) G is a C corporation with a taxable year ending on 
June 30. GH is a partnership with a calendar year taxable year. G has a 
20 percent interest in GH. The remaining 80 percent interest is owned by 
an individual. On April 25, 2005, G contributed inventory that is LIFO 
inventory to GH, increasing G's interest in the partnership to 50 
percent. GH holds no other LIFO inventory, and there are no other 
adjustments to the partnership's basis in its LIFO inventory between 
January 1, 2005 and the end of the recapture date. G elects to be an S 
corporation effective July 1, 2005. The recapture date is June 30, 2005 
under paragraph (c)(1) of this section. GH elects to use the LIFO method 
for the inventory and determines that the FIFO and LIFO values of the 
opening inventory for GH's 2005 taxable year, including the inventory 
contributed by G, are $200 and $120, respectively.
    (ii) Under paragraph (c)(4)(iii) of this section, GH is not required 
to determine the FIFO and LIFO values of the inventory on the recapture 
date. Instead, GH may determine the lookthrough LIFO recapture amount as 
though the FIFO and LIFO values of the inventory on the recapture date 
equaled the FIFO and LIFO values of the opening inventory for the 
partnership's taxable year (2005) that includes the recapture date. For 
this purpose, under paragraph (c)(4) of this section, the opening 
inventory includes the inventory contributed by G. The amount by which 
the FIFO value ($200) exceeds the LIFO value ($120) in GH's opening 
inventory is $80. Thus, if GH sold all of its LIFO inventory for $200, 
it would recognize $80 of income. G's lookthrough LIFO recapture amount 
is $80, the amount of income that would be allocated to G, taking into 
account section 704(c) and Sec.  1.704-3, if GH sold all of its LIFO 
inventory for the FIFO value. Under paragraph (b)(1) of this section, G 
must include $80 in income in its taxable year ending on June 30, 2005. 
Under paragraph (e)(2) of this section, G must increase its basis in its 
interest in GH by $80. Under paragraphs (e)(2) and (3) of this section, 
and in accordance with section 743(b) principles, GH may elect to 
increase the basis (with respect to G only) of its LIFO inventory by 
$80.
    Example 2. (i) J is a C corporation with a calendar year taxable 
year. JK is a partnership with a calendar year taxable year. J has a 30 
percent interest in the partnership. JK owns LIFO inventory that is not 
section

[[Page 890]]

704(c) property. J elects to be an S corporation effective January 1, 
2005. The recapture date is December 31, 2004 under paragraph (c)(1) of 
this section. JK determines that the FIFO and LIFO values of the 
inventory on December 31, 2004 are $240 and $140, respectively.
    (ii) The amount by which the FIFO value ($240) exceeds the LIFO 
value ($140) on the recapture date is $100. Thus, if JK sold all of its 
LIFO inventory for $240, it would recognize $100 of income. J's 
lookthrough LIFO recapture amount is $30, the amount of income that 
would be allocated to J if JK sold all of its LIFO inventory for the 
FIFO value (30 percent of $100). Under paragraph (b)(1) of this section, 
J must include $30 in income in its taxable year ending on December 31, 
2004. Under paragraph (e)(2) of this section, J must increase its basis 
in its interest in JK by $30. Under paragraphs (e)(2) and (3) of this 
section, and in accordance with section 743(b) principles, JK may elect 
to increase the basis (with respect to J only) of its inventory by $30.

    (g) Effective dates. (1) The provisions of paragraph (a)(1) of this 
section apply to S elections made after December 17, 1987. For an 
exception, see section 10227(b)(2) of the Revenue Act of 1987.
    (2) The provisions of paragraph (a)(2) of this section apply to 
transfers made after August 18, 1993.
    (3) The provisions of paragraphs (b), (c), (d), (e)(2), (e)(3), and 
(f) of this section apply to S elections and transfers made on or after 
August 13, 2004. The rules that apply to S elections and transfers made 
before August 13, 2004, are contained in Sec.  1.1363-2 as in effect 
prior to August 13, 2004 (see 26 CFR part 1 revised as of April 1, 
2005).

[T.D. 8567, 59 FR 51106, Oct. 7, 1994, as amended by T.D. 9210, 70 FR 
39921, July 12, 2005]



Sec.  1.1366-0  Table of contents.

    The following table of contents is provided to facilitate the use of 
Sec. Sec.  1.1366-1 through 1.1366-5:

    Sec.  1.1366-1 Shareholder's share of items of an S corporation.

    (a) Determination of shareholder's tax liability.
    (1) In general.
    (2) Separately stated items of income, loss, deduction, or credit.
    (3) Nonseparately computed income or loss.
    (4) Separate activities requirement.
    (5) Aggregation of deductions or exclusions for purposes of 
limitations.
    (b) Character of items constituting pro rata share.
    (1) In general.
    (2) Exception for contribution of noncapital gain property.
    (3) Exception for contribution of capital loss property.
    (c) Gross income of a shareholder.
    (1) In general.
    (2) Gross income for substantial omission of items.
    (d) Shareholders holding stock subject to community property laws.
    (e) Net operating loss deduction of shareholder of S corporation.
    (f) Cross-reference.

  Sec.  1.1366-2 Limitations on deduction of passthrough items of an S 
                    corporation to its shareholders.

    (a) In general.
    (1) Limitation on losses and deductions.
    (2) Basis of indebtedness.
    (i) In general.
    (ii) Special rule for guarantees.
    (iii) Examples.
    (3) Carryover of disallowance.
    (4) Basis limitation amount.
    (i) Stock portion.
    (ii) Indebtedness portion.
    (5) Limitation on losses and deductions allocated to each item.
    (6) Nontransferability of losses and deductions.
    (i) In general.
    (ii) Exceptions for transfers of stock under section 1041(a).
    (iii) Examples.
    (7) Basis of stock acquired by gift.
    (b) Special rules for carryover of disallowed losses and deductions 
to post-termination transition period described in section 1377(b).
    (1) In general.
    (2) Limitation on losses and deductions.
    (3) Limitation on losses and deductions allocated to each item.
    (4) Adjustment to the basis of stock.
    (c) Carryover of disallowed losses and deductions in the case of 
liquidations, reorganizations, and divisions.
    (1) Liquidations and reorganizations.
    (2) Corporate separations to which section 368(a)(1)(D) applies.

               Sec.  1.1366-3 Treatment of family groups.

    (a) In general.
    (b) Examples.

 Sec.  1.1366-4 Special rules limiting the passthrough of certain items 
                of an S corporation to its shareholders.

    (a) Passthrough inapplicable to section 34 credit.
    (b) Reduction in passthrough for tax imposed on built-in gains.
    (c) Reduction in passthrough for tax imposed on excess net passive 
income.

[[Page 891]]

              Sec.  1.1366-5 Effective/applicability date.

[T.D. 8852, 64 FR 71644, Dec. 22, 1999, as amended by T.D. 9422, 73 FR 
47530, Aug. 14, 2008; T.D. 9682, 79 FR 42677, July 23, 2014]



Sec.  1.1366-1  Shareholder's share of items of an S corporation.

    (a) Determination of shareholder's tax liability--(1) In general. An 
S corporation must report, and a shareholder is required to take into 
account in the shareholder's return, the shareholder's pro rata share, 
whether or not distributed, of the S corporation's items of income, 
loss, deduction, or credit described in paragraphs (a)(2), (3), and (4) 
of this section. A shareholder's pro rata share is determined in 
accordance with the provisions of section 1377(a) and the regulations 
thereunder. The shareholder takes these items into account in 
determining the shareholder's taxable income and tax liability for the 
shareholder's taxable year with or within which the taxable year of the 
corporation ends. If the shareholder dies (or if the shareholder is an 
estate or trust and the estate or trust terminates) before the end of 
the taxable year of the corporation, the shareholder's pro rata share of 
these items is taken into account on the shareholder's final return. For 
the limitation on allowance of a shareholder's pro rata share of S 
corporation losses or deductions, see section 1366(d) and Sec.  1.1366-
2.
    (2) Separately stated items of income, loss, deduction, or credit. 
Each shareholder must take into account separately the shareholder's pro 
rata share of any item of income (including tax-exempt income), loss, 
deduction, or credit of the S corporation that if separately taken into 
account by any shareholder could affect the shareholder's tax liability 
for that taxable year differently than if the shareholder did not take 
the item into account separately. The separately stated items of the S 
corporation include, but are not limited to, the following items--
    (i) The corporation's combined net amount of gains and losses from 
sales or exchanges of capital assets grouped by applicable holding 
periods, by applicable rate of tax under section 1(h), and by any other 
classification that may be relevant in determining the shareholder's tax 
liability;
    (ii) The corporation's combined net amount of gains and losses from 
sales or exchanges of property described in section 1231 (relating to 
property used in the trade or business and involuntary conversions), 
grouped by applicable holding periods, by applicable rate of tax under 
section 1(h), and by any other classification that may be relevant in 
determining the shareholder's tax liability;
    (iii) Charitable contributions, grouped by the percentage 
limitations of section 170(b), paid by the corporation within the 
taxable year of the corporation;
    (iv) The taxes described in section 901 that have been paid (or 
accrued) by the corporation to foreign countries or to possessions of 
the United States;
    (v) Each of the corporation's separate items involved in the 
determination of credits against tax allowable under part IV of 
subchapter A (section 21 and following) of the Internal Revenue Code, 
except for any credit allowed under section 34 (relating to certain uses 
of gasoline and special fuels);
    (vi) Each of the corporation's separate items of gains and losses 
from wagering transactions (section 165(d)); soil and water conservation 
expenditures (section 175); deduction under an election to expense 
certain depreciable business expenses (section 179); medical, dental, 
etc., expenses (section 213); the additional itemized deductions for 
individuals provided in part VII of subchapter B (section 212 and 
following) of the Internal Revenue Code; and any other itemized 
deductions for which the limitations on itemized deductions under 
sections 67 or 68 applies;
    (vii) Any of the corporation's items of portfolio income or loss, 
and expenses related thereto, as defined in the regulations under 
section 469;
    (viii) The corporation's tax-exempt income. For purposes of 
subchapter S, tax-exempt income is income that is permanently excludible 
from gross income in all circumstances in which the applicable provision 
of the Internal Revenue Code applies. For example, income that is 
excludible from gross income under section 101 (certain death benefits) 
or section 103 (interest on

[[Page 892]]

state and local bonds) is tax-exempt income, while income that is 
excludible from gross income under section 108 (income from discharge of 
indebtedness) or section 109 (improvements by lessee on lessor's 
property) is not tax-exempt income;
    (ix) The corporation's adjustments described in sections 56 and 58, 
and items of tax preference described in section 57; and
    (x) Any item identified in guidance (including forms and 
instructions) issued by the Commissioner as an item required to be 
separately stated under this paragraph (a)(2).
    (3) Nonseparately computed income or loss. Each shareholder must 
take into account separately the shareholder's pro rata share of the 
nonseparately computed income or loss of the S corporation. For this 
purpose, nonseparately computed income or loss means the corporation's 
gross income less the deductions allowed to the corporation under 
chapter 1 of the Internal Revenue Code, determined by excluding any item 
requiring separate computation under paragraph (a)(2) of this section.
    (4) Separate activities requirement. An S corporation must report, 
and each shareholder must take into account in the shareholder's return, 
the shareholder's pro rata share of an S corporation's items of income, 
loss, deduction, or credit described in paragraphs (a)(2) and (3) of 
this section for each of the corporation's activities as defined in 
section 469 and the regulations thereunder.
    (5) Aggregation of deductions or exclusions for purposes of 
limitations--(i) In general. A shareholder aggregates the shareholder's 
separate deductions or exclusions with the shareholder's pro rata share 
of the S corporation's separately stated deductions or exclusions in 
determining the amount of any deduction or exclusion allowable to the 
shareholder under subtitle A of the Internal Revenue Code as to which a 
limitation is imposed.
    (ii) Example. The provisions of paragraph (a)(5)(i) of this section 
are illustrated by the following example:

    Example. In 1999, Corporation M, a calendar year S corporation, 
purchases and places in service section 179 property costing $10,000. 
Corporation M elects to expense the entire cost of the property. 
Shareholder A owns 50 percent of the stock of Corporation M. Shareholder 
A's pro rata share of this item after Corporation M applies the section 
179(b) limitations is $5,000. Because the aggregate amount of 
Shareholder A's pro rata share and separately acquired section 179 
expense may not exceed $19,000 (the aggregate maximum cost that may be 
taken into account under section 179(a) for the applicable taxable 
year), Shareholder A may elect to expense up to $14,000 of separately 
acquired section 179 property that is purchased and placed in service in 
1999, subject to the limitations of section 179(b).

    (b) Character of items constituting pro rata share--(1) In general. 
Except as provided in paragraph (b)(2) or (3) of this section, the 
character of any item of income, loss, deduction, or credit described in 
section 1366(a)(1)(A) or (B) and paragraph (a) of this section is 
determined for the S corporation and retains that character in the hands 
of the shareholder. For example, if an S corporation has capital gain on 
the sale or exchange of a capital asset, a shareholder's pro rata share 
of that gain will also be characterized as a capital gain regardless of 
whether the shareholder is otherwise a dealer in that type of property. 
Similarly, if an S corporation engages in an activity that is not for 
profit (as defined in section 183), a shareholder's pro rata share of 
the S corporation's deductions will be characterized as not for profit. 
Also, if an S corporation makes a charitable contribution to an 
organization qualifying under section 170(b)(1)(A), a shareholder's pro 
rata share of the S corporation's charitable contribution will be 
characterized as made to an organization qualifying under section 
170(b)(1)(A).
    (2) Exception for contribution of noncapital gain property. If an S 
corporation is formed or availed of by any shareholder or group of 
shareholders for a principal purpose of selling or exchanging 
contributed property that in the hands of the shareholder or 
shareholders would not have produced capital gain if sold or exchanged 
by the shareholder or shareholders, then the gain on the sale or 
exchange of the property recognized by the corporation is not treated as 
a capital gain.
    (3) Exception for contribution of capital loss property. If an S 
corporation is

[[Page 893]]

formed or availed of by any shareholder or group of shareholders for a 
principal purpose of selling or exchanging contributed property that in 
the hands of the shareholder or shareholders would have produced capital 
loss if sold or exchanged by the shareholder or shareholders, then the 
loss on the sale or exchange of the property recognized by the 
corporation is treated as a capital loss to the extent that, immediately 
before the contribution, the adjusted basis of the property in the hands 
of the shareholder or shareholders exceeded the fair market value of the 
property.
    (c) Gross income of a shareholder--(1) In general. Where it is 
necessary to determine the amount or character of the gross income of a 
shareholder, the shareholder's gross income includes the shareholder's 
pro rata share of the gross income of the S corporation. The 
shareholder's pro rata share of the gross income of the S corporation is 
the amount of gross income of the corporation used in deriving the 
shareholder's pro rata share of S corporation taxable income or loss 
(including items described in section 1366(a)(1)(A) or (B) and paragraph 
(a) of this section). For example, a shareholder is required to include 
the shareholder's pro rata share of S corporation gross income in 
computing the shareholder's gross income for the purposes of determining 
the necessity of filing a return (section 6012(a)) and the shareholder's 
gross income derived from farming (sections 175 and 6654(i)).
    (2) Gross income for substantial omission of items--(i) In general. 
For purposes of determining the applicability of the 6-year period of 
limitation on assessment and collection provided in section 6501(e) 
(relating to omission of more than 25 percent of gross income), a 
shareholder's gross income includes the shareholder's pro rata share of 
S corporation gross income (as described in section 6501(e)(1)(A)(i)). 
In this respect, the amount of S corporation gross income used in 
deriving the shareholder's pro rata share of any item of S corporation 
income, loss, deduction, or credit (as included or disclosed in the 
shareholder's return) is considered as an amount of gross income stated 
in the shareholder's return for purposes of section 6501(e).
    (ii) Example. The following example illustrates the provisions of 
paragraph (c)(2)(i) of this section:

    Example. Shareholder A, an individual, owns 25 percent of the stock 
of Corporation N, an S corporation that has $10,000 gross income and 
$2,000 taxable income. A reports only $300 as A's pro rata share of N's 
taxable income. A should have reported $500 as A's pro rata share of 
taxable income, derived from A's pro rata share, $2,500, of N's gross 
income. Because A's return included only $300 without a disclosure 
meeting the requirements of section 6501(e)(1)(A)(ii) describing the 
difference of $200, A is regarded as having reported on the return only 
$1,500 ($300/$500 of $2,500) as gross income from N.

    (d) Shareholders holding stock subject to community property laws. 
If a shareholder holds S corporation stock that is community property, 
then the shareholder's pro rata share of any item or items listed in 
paragraphs (a)(2), (3), and (4) of this section with respect to that 
stock is reported by the husband and wife in accordance with community 
property rules.
    (e) Net operating loss deduction of shareholder of S corporation. 
For purposes of determining a net operating loss deduction under section 
172, a shareholder of an S corporation must take into account the 
shareholder's pro rata share of items of income, loss, deduction, or 
credit of the corporation. See section 1366(b) and paragraph (b) of this 
section for rules on determining the character of the items. In 
determining under section 172(d)(4) the nonbusiness deductions allowable 
to a shareholder of an S corporation (arising from both corporation 
sources and any other sources), the shareholder separately takes into 
account the shareholder's pro rata share of the deductions of the 
corporation that are not attributable to a trade or business and 
combines this amount with the shareholder's nonbusiness deductions from 
any other sources. The shareholder also separately takes into account 
the shareholder's pro rata share of the gross income of the corporation 
not derived from a trade or business and combines this amount with the 
shareholder's nonbusiness income from all other sources. See section 172 
and the regulations thereunder.

[[Page 894]]

    (f) Cross-reference. For rules relating to the consistent tax 
treatment of subchapter S items, see section 6037(c).

[T.D. 8852, 64 FR 71645, Dec. 22, 1999]



Sec.  1.1366-2  Limitations on deduction of passthrough items 
of an S corporation to its shareholders.

    (a) In general--(1) Limitation on losses and deductions. The 
aggregate amount of losses and deductions taken into account by a 
shareholder under Sec.  1.1366-1(a) (2), (3), and (4) for any taxable 
year of an S corporation cannot exceed the sum of--
    (i) The adjusted basis of the shareholder's stock in the corporation 
(as determined under paragraph (a)(4)(i) of this section); and
    (ii) The adjusted basis of any indebtedness of the corporation to 
the shareholder (as determined under paragraphs (a)(2) and (a)(4)(ii) of 
this section).
    (2) Basis of indebtedness--(i) In general. The term basis of any 
indebtedness of the S corporation to the shareholder means the 
shareholder's adjusted basis (as defined in Sec.  1.1011-1 and as 
specifically provided in section 1367(b)(2)) in any bona fide 
indebtedness of the S corporation that runs directly to the shareholder. 
Whether indebtedness is bona fide indebtedness to a shareholder is 
determined under general Federal tax principles and depends upon all of 
the facts and circumstances.
    (ii) Special rule for guarantees. A shareholder does not obtain 
basis of indebtedness in the S corporation merely by guaranteeing a loan 
or acting as a surety, accommodation party, or in any similar capacity 
relating to a loan. When a shareholder makes a payment on bona fide 
indebtedness of the S corporation for which the shareholder has acted as 
guarantor or in a similar capacity, then the shareholder may increase 
the shareholder's basis of indebtedness to the extent of that payment.
    (iii) Examples. The following examples illustrate the provisions of 
paragraph (a)(2)(i) and (ii) of this section:

    Example 1. Shareholder loan transaction. A is the sole shareholder 
of S, an S corporation. S received a loan from A. Whether the loan from 
A to S constitutes bona fide indebtedness from S to A is determined 
under general Federal tax principles and depends upon all of the facts 
and circumstances. See paragraph (a)(2)(i) of this section. If the loan 
constitutes bona fide indebtedness from S to A, A's loan to S increases 
A's basis of indebtedness under paragraph (a)(2)(i) of this section. The 
result is the same if A made the loan to S through an entity that is 
disregarded as an entity separate from A under Sec.  301.7701-3 of this 
chapter.
    Example 2. Back-to-back loan transaction. A is the sole shareholder 
of two S corporations, S1 and S2. S1 loaned $200,000 to A. A then loaned 
$200,000 to S2. Whether the loan from A to S2 constitutes bona fide 
indebtedness from S2 to A is determined under general Federal tax 
principles and depends upon all of the facts and circumstances. See 
paragraph (a)(2)(i) of this section. If A's loan to S2 constitutes bona 
fide indebtedness from S2 to A, A's back-to-back loan increases A's 
basis of indebtedness in S2 under paragraph (a)(2)(i) of this section.
    Example 3. Loan restructuring through distributions. A is the sole 
shareholder of two S corporations, S1 and S2. In May 2014, S1 made a 
loan to S2. In December 2014, S1 assigned its creditor position in the 
note to A by making a distribution to A of the note. Under local law, 
after S1 distributed the note to A, S2 was relieved of its liability to 
S1 and was directly liable to A. Whether S2 is indebted to A rather than 
S1 is determined under general Federal tax principles and depends upon 
all of the facts and circumstances. See paragraph (a)(2)(i) of this 
section. If the note constitutes bona fide indebtedness from S2 to A, 
the note increases A's basis of indebtedness in S2 under paragraph 
(a)(2)(i) of this section.
    Example 4. Guarantee. A is a shareholder of S, an S corporation. In 
2014, S received a loan from Bank. Bank required A's guarantee as a 
condition of making the loan to S. Beginning in 2015, S could no longer 
make payments on the loan and A made payments directly to Bank from A's 
personal funds until the loan obligation was satisfied. For each payment 
A made on the note, A obtains basis of indebtedness under paragraph 
(a)(2)(ii) of this section. Thus, A's basis of indebtedness is increased 
during 2015 under paragraph (a)(2)(ii) of this section to the extent of 
A's payments to Bank pursuant to the guarantee agreement.

    (3) Carryover of disallowance. A shareholder's aggregate amount of 
losses and deductions for a taxable year in excess of the sum of the 
adjusted basis of the shareholder's stock in an S corporation and of any 
indebtedness of the S corporation to the shareholder is not allowed for 
the taxable year. However,

[[Page 895]]

any disallowed loss or deduction retains its character and is treated as 
incurred by the corporation in the corporation's first succeeding 
taxable year, and subsequent taxable years, with respect to the 
shareholder. For rules on determining the adjusted bases of stock of an 
S corporation and indebtedness of the corporation to the shareholder, 
see paragraphs (a)(4) (i) and (ii) of this section.
    (4) Basis limitation amount--(i) Stock portion. A shareholder 
generally determines the adjusted basis of stock for purposes of 
paragraphs (a)(1)(i) and (3) of this section (limiting losses and 
deductions) by taking into account only increases in basis under section 
1367(a)(1) for the taxable year and decreases in basis under section 
1367(a)(2) (A), (D) and (E) (relating to distributions, noncapital, 
nondeductible expenses, and certain oil and gas depletion deductions) 
for the taxable year. In so determining this loss limitation amount, the 
shareholder disregards decreases in basis under section 1367(a)(2) (B) 
and (C) (for losses and deductions, including losses and deductions 
previously disallowed) for the taxable year. However, if the shareholder 
has in effect for the taxable year an election under Sec.  1.1367-1(g) 
to decrease basis by items of loss and deduction prior to decreasing 
basis by noncapital, nondeductible expenses and certain oil and gas 
depletion deductions, the shareholder also disregards decreases in basis 
under section 1367(a)(2) (D) and (E). This basis limitation amount for 
stock is determined at the time prescribed under Sec.  1.1367-1(d)(1) 
for adjustments to the basis of stock.
    (ii) Indebtedness portion. A shareholder determines the 
shareholder's adjusted basis in indebtedness of the corporation for 
purposes of paragraphs (a)(1)(ii) and (3) of this section (limiting 
losses and deductions) without regard to any adjustment under section 
1367(b)(2)(A) for the taxable year. This basis limitation amount for 
indebtedness is determined at the time prescribed under Sec.  1.1367-
2(d)(1) for adjustments to the basis of indebtedness.
    (5) Limitation on losses and deductions allocated to each item. If a 
shareholder's pro rata share of the aggregate amount of losses and 
deductions specified in Sec.  1.1366-1(a)(2), (3), and (4) exceeds the 
sum of the adjusted basis of the shareholder's stock in the corporation 
(determined in accordance with paragraph (a)(4)(i) of this section) and 
the adjusted basis of any indebtedness of the corporation to the 
shareholder (determined in accordance with paragraph (a)(4)(ii) of this 
section), then the limitation on losses and deductions under section 
1366(d)(1) must be allocated among the shareholder's pro rata share of 
each loss or deduction. The amount of the limitation allocated to any 
loss or deduction is an amount that bears the same ratio to the amount 
of the limitation as the loss or deduction bears to the total of the 
losses and deductions. For this purpose, the total of losses and 
deductions for the taxable year is the sum of the shareholder's pro rata 
share of losses and deductions for the taxable year, and the losses and 
deductions disallowed and carried forward from prior years pursuant to 
section 1366(d)(2).
    (6) Nontransferability of losses and deductions--(i) In general. 
Except as provided in paragraph (a)(6)(ii) of this section, any loss or 
deduction disallowed under paragraph (a)(1) of this section is personal 
to the shareholder and cannot in any manner be transferred to another 
person. If a shareholder transfers some but not all of the shareholder's 
stock in the corporation, the amount of any disallowed loss or deduction 
under this section is not reduced and the transferee does not acquire 
any portion of the disallowed loss or deduction. If a shareholder 
transfers all of the shareholder's stock in the corporation, any 
disallowed loss or deduction is permanently disallowed.
    (ii) Exceptions for transfers of stock under section 1041(a). If a 
shareholder transfers stock of an S corporation after December 31, 2004, 
in a transfer described in section 1041(a), any loss or deduction with 
respect to the transferred stock that is disallowed to the transferring 
shareholder under paragraph (a)(1) of this section shall be treated as 
incurred by the corporation in the following taxable year with respect 
to the transferee spouse or former spouse. The amount of any loss or 
deduction with respect to the stock

[[Page 896]]

transferred shall be determined by prorating any losses or deductions 
disallowed under paragraph (a)(1) of this section for the year of the 
transfer between the transferor and the spouse or former spouse based on 
the stock ownership at the beginning of the following taxable year. If a 
transferor claims a deduction for losses in the taxable year of 
transfer, then under paragraph (a)(5) of this section, if the 
transferor's pro rata share of the losses and deductions in the year of 
transfer exceeds the transferor's basis in stock and the indebtedness of 
the corporation to the transferor, then the limitation must be allocated 
among the transferor spouse's pro rata share of each loss or deduction, 
including disallowed losses and deductions carried over from the prior 
year.
    (iii) Examples. The following examples illustrates the provisions of 
paragraph (a)(6)(ii) of this section:

    Example 1. A owns all 100 shares in X, a calendar year S 
corporation. For X's taxable year ending December 31, 2006, A has zero 
basis in the shares and X does not have any indebtedness to A. For the 
2006 taxable year, X had $100 in losses that A cannot use because of the 
basis limitation in section 1366(d)(1) and that are treated as incurred 
by the corporation with respect to A in the following taxable year. 
Halfway through the 2007 taxable year, A transfers 50 shares to B, A's 
former spouse in a transfer to which section 1041(a) applies. In the 
2007 taxable year, X has $80 in losses. On A's 2007 individual income 
tax return, A may use the entire $100 carryover loss from 2006, as well 
as A's share of the $80 2007 loss determined under section 1377(a) 
($60), assuming A acquires sufficient basis in the X stock. On B's 2007 
individual income tax return, B may use B's share of the $80 2007 loss 
determined under section 1377(a) ($20), assuming B has sufficient basis 
in the X stock. If any disallowed 2006 loss is disallowed to A under 
section 1366(d)(1) in 2007, that loss is prorated between A and B based 
on their stock ownership at the beginning of 2008. On B's 2008 
individual income tax return, B may use that loss, assuming B acquires 
sufficient basis in the X stock. If neither A nor B acquires any basis 
during the 2007 taxable year, then as of the beginning of 2008, the 
corporation will be treated as incurring $50 of loss with respect to A 
and $50 of loss with respect to B for the $100 of disallowed 2006 loss, 
and the corporation will be treated as incurring $60 of loss with 
respect to A and $20 with respect to B for the $80 of disallowed 2007 
loss.
    Example 2. Assume the same facts as Example 1, except that during 
the 2007 taxable year, A acquires $10 of basis in A's shares in X. For 
the 2007 taxable year, A may claim a $10 loss deduction, which 
represents $6.25 of the disallowed 2006 loss of $100 and $3.75 of A's 
2007 loss of $60. The disallowed 2006 loss is reduced to $93.75. As of 
the beginning of 2008, the corporation will be treated as incurring half 
of the remaining $93.75 of loss with respect to A and half of that loss 
with respect to B for the remaining $93.75 of disallowed 2006 loss, and 
if B does not acquire any basis during 2007, the corporation will be 
treated as incurring $56.25 of loss with respect to A and $20 with 
respect to B for the remaining disallowed 2007 loss.

    (7) Basis of stock acquired by gift. For purposes of section 
1366(d)(1)(A) and paragraphs (a)(1)(i) and (3) of this section, the 
basis of stock in a corporation acquired by gift is the basis of the 
stock that is used for purposes of determining loss under section 
1015(a).
    (b) Special rules for carryover of disallowed losses and deductions 
to post-termination transition period described in section 1377(b)--(1) 
In general. If, for the last taxable year of a corporation for which it 
was an S corporation, a loss or deduction was disallowed to a 
shareholder by reason of the limitation in paragraph (a) of this 
section, the loss or deduction is treated under section 1366(d)(3) as 
incurred by that shareholder on the last day of any post-termination 
transition period (within the meaning of section 1377(b)).
    (2) Limitation on losses and deductions. The aggregate amount of 
losses and deductions taken into account by a shareholder under 
paragraph (b)(1) of this section cannot exceed the adjusted basis of the 
shareholder's stock in the corporation determined at the close of the 
last day of the post-termination transition period. For this purpose, 
the adjusted basis of a shareholder's stock in the corporation is 
determined at the close of the last day of the post-termination 
transition period without regard to any reduction required under 
paragraph (b)(4) of this section. If a shareholder disposes of a share 
of stock prior to the close of the last day of the post-termination 
transition period, the adjusted basis of that share is its basis as of 
the close of the day of disposition. Any losses and deductions in excess 
of a shareholder's adjusted stock basis are permanently disallowed. For 
purposes

[[Page 897]]

of section 1366(d)(3)(B) and this paragraph (b)(2), the basis of stock 
in a corporation acquired by gift is the basis of the stock that is used 
for purposes of determining loss under section 1015(a).
    (3) Limitation on losses and deductions allocated to each item. If 
the aggregate amount of losses and deductions treated as incurred by the 
shareholder under paragraph (b)(1) of this section exceeds the adjusted 
basis of the shareholder's stock determined under paragraph (b)(2) of 
this section, the limitation on losses and deductions under section 
1366(d)(3)(B) must be allocated among each loss or deduction. The amount 
of the limitation allocated to each loss or deduction is an amount that 
bears the same ratio to the amount of the limitation as the amount of 
each loss or deduction bears to the total of all the losses and 
deductions.
    (4) Adjustment to the basis of stock. The shareholder's basis in the 
stock of the corporation is reduced by the amount allowed as a deduction 
by reason of this paragraph (b). For rules regarding adjustments to the 
basis of a shareholder's stock in an S corporation, see Sec.  1.1367-1.
    (c) Carryover of disallowed losses and deductions in the case of 
liquidations, reorganizations, and divisions--(1) Liquidations and 
reorganizations. If a corporation acquires the assets of an S 
corporation in a transaction to which section 381(a) applies, any loss 
or deduction disallowed under paragraph (a) of this section with respect 
to a shareholder of the distributor or transferor S corporation is 
available to that shareholder as a shareholder of the acquiring 
corporation. Thus, where the acquiring corporation is an S corporation, 
a loss or deduction of a shareholder of the distributor or transferor S 
corporation disallowed prior to or during the taxable year of the 
transaction is treated as incurred by the acquiring S corporation with 
respect to that shareholder if the shareholder is a shareholder of the 
acquiring S corporation after the transaction. Where the acquiring 
corporation is a C corporation, a post-termination transition period 
arises the day after the last day that an S corporation was in existence 
and the rules provided in paragraph (b) of this section apply with 
respect to any shareholder of the acquired S corporation that is also a 
shareholder of the acquiring C corporation after the transaction. See 
the special rules under section 1377 for the availability of the post-
termination transition period if the acquiring corporation is a C 
corporation.
    (2) Corporate separations to which section 368(a)(1)(D) applies. If 
an S corporation transfers a portion of its assets constituting an 
active trade or business to another corporation in a transaction to 
which section 368(a)(1)(D) applies, and immediately thereafter the stock 
and securities of the controlled corporation are distributed in a 
distribution or exchange to which section 355 (or so much of section 356 
as relates to section 355) applies, any loss or deduction disallowed 
under paragraph (a) of this section with respect to a shareholder of the 
distributing S corporation immediately before the transaction is 
allocated between the distributing corporation and the controlled 
corporation with respect to the shareholder. Such allocation shall be 
made according to any reasonable method, including a method based on the 
relative fair market value of the shareholder's stock in the 
distributing and controlled corporations immediately after the 
distribution, a method based on the relative adjusted basis of the 
assets in the distributing and controlled corporations immediately after 
the distribution, or, in the case of losses and deductions clearly 
attributable to either the distributing or controlled corporation, any 
method that allocates such losses and deductions accordingly.

[T.D. 8852, 64 FR 71646, Dec. 22, 1999, as amended by T.D. 9422, 73 FR 
47531, Aug. 14, 2008; T.D. 9682, 79 FR 42678, July 23, 2014]



Sec.  1.1366-3  Treatment of family groups.

    (a) In general. Under section 1366(e), if an individual, who is a 
member of the family of one or more shareholders of an S corporation, 
renders services for, or furnishes capital to, the corporation without 
receiving reasonable compensation, the Commissioner shall prescribe 
adjustments to those items taken into account by the individual and the 
shareholders as may be necessary to reflect the value of the services 
rendered or capital furnished. For

[[Page 898]]

these purposes, in determining the reasonable value for services 
rendered, or capital furnished, to the corporation, consideration will 
be given to all the facts and circumstances, including the amount that 
ordinarily would be paid in order to obtain comparable services or 
capital from a person (other than a member of the family) who is not a 
shareholder in the corporation. In addition, for purposes of section 
1366(e), if a member of the family of one or more shareholders of the S 
corporation holds an interest in a passthrough entity (e.g., a 
partnership, S corporation, trust, or estate), that performs services 
for, or furnishes capital to, the S corporation without receiving 
reasonable compensation, the Commissioner shall prescribe adjustments to 
the passthrough entity and the corporation as may be necessary to 
reflect the value of the services rendered or capital furnished. For 
purposes of section 1366(e), the term family of any shareholder includes 
only the shareholder's spouse, ancestors, lineal descendants, and any 
trust for the primary benefit of any of these persons.
    (b) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. The stock of an S corporation is owned 50 percent by F 
and 50 percent by T, the minor son of F. For the taxable year, the 
corporation has items of taxable income equal to $70,000. Compensation 
of $10,000 is paid by the corporation to F for services rendered during 
the taxable year, and no compensation is paid to T, who rendered no 
services. Based on all the relevant facts and circumstances, reasonable 
compensation for the services rendered by F would be $30,000. In the 
discretion of the Internal Revenue Service, up to an additional $20,000 
of the $70,000 of the corporation's taxable income, for tax purposes, 
may be allocated to F as compensation for services rendered. If the 
Internal Revenue Service allocates $20,000 of the corporation's taxable 
income to F as compensation for services, taxable income of the 
corporation would be reduced by $20,000 to $50,000, of which F and T 
each would be allocated $25,000. F would have $30,000 of total 
compensation paid by the corporation for services rendered.
    Example 2. The stock of an S corporation is owned by A and B. For 
the taxable year, the corporation has paid compensation to a partnership 
that rendered services to the corporation during the taxable year. The 
spouse of A is a partner in that partnership. Consequently, if based on 
all the relevant facts and circumstances the partnership did not receive 
reasonable compensation for the services rendered to the corporation, 
the Internal Revenue Service, in its discretion, may make adjustments to 
those items taken into account by the partnership and the corporation as 
may be necessary to reflect the value of the services rendered.

[T.D. 8852, 64 FR 71648, Dec. 22, 1999]



Sec.  1.1366-4  Special rules limiting the passthrough of certain items 
of an S corporation to its shareholders.

    (a) Passthrough inapplicable to section 34 credit. Section 1.1366-
1(a) does not apply to any credit allowable under section 34 (relating 
to certain uses of gasoline and special fuels).
    (b) Reduction in passthrough for tax imposed on built-in gains. For 
purposes of Sec.  1.1366-1(a), if for any taxable year of the S 
corporation a tax is imposed on the corporation under section 1374, the 
amount of the tax imposed is treated as a loss sustained by the S 
corporation during the taxable year. The character of the deemed loss is 
determined by allocating the loss proportionately among the net 
recognized built-in gains giving rise to the tax and attributing the 
character of each net recognized built-in gain to the allocable portion 
of the loss.
    (c) Reduction in passthrough for tax imposed on excess net passive 
income. For purposes of Sec.  1.1366-1(a), if for any taxable year of 
the S corporation a tax is imposed on the corporation under section 
1375, each item of passive investment income shall be reduced by an 
amount that bears the same ratio to the amount of the tax as the net 
amount of the item bears to the total net passive investment income for 
that taxable year.

[T.D. 8852, 64 FR 71648, Dec. 22, 1999; 65 FR 12471, Mar. 9, 2000]



Sec.  1.1366-5  Effective/applicability date.

    (a) Sections 1.1366-1, 1.1366-2(a)(1), and 1.1366-2(b) through 
1.1366-4 apply to taxable years of an S corporation beginning on or 
after August 18, 1998.
    (b) Section 1.1366-2(a)(2) applies to indebtedness between an S 
corporation and its shareholder resulting from any transaction occurring 
on or after July 23, 2014. In addition, S corporations and their 
shareholders may rely on Sec.  1.1366-

[[Page 899]]

2(a)(2) with respect to indebtedness between an S corporation and its 
shareholder that resulted from any transaction that occurred in a year 
for which the period of limitations on the assessment of tax has not 
expired before July 23, 2014.
    (c) Sections 1.1366-2(a)(3) through (7), and this section apply on 
and after July 23, 2014. For rules that apply before that date, see 26 
CFR part 1 (revised as of April 1, 2014).

[ T.D. 9682, 79 FR 42678, July 23, 2014]



Sec.  1.1367-0  Table of contents.

    The following table of contents is provided to facilitate the use of 
Sec. Sec.  1.1367-1 through 1.1367-3.

   Sec.  1.1367-1 Adjustments to basis of shareholder's stock in an S 
                              corporation.

    (a) In general.
    (1) Adjustments under section 1367.
    (2) Applicability of other Internal Revenue Code provisions.
    (b) Increase in basis of stock.
    (1) In general.
    (2) Amount of increase in basis of individual shares.
    (c) Decrease in basis of stock.
    (1) In general.
    (2) Noncapital, nondeductible expenses.
    (3) Amount of decrease in basis of individual shares.
    (d) Time at which adjustments to basis of stock are effective.
    (1) In general.
    (2) Adjustment for nontaxable item.
    (3) Effect of election under section 1377(a)(2) or Sec.  1.1368-
1(g)(2).
    (e) Ordering rules for taxable years beginning before January 1, 
1997.
    (f) Ordering rules for taxable years beginning on or after August 
18, 1998.
    (g) Elective ordering rule.
    (h) Examples.
    (i) [Reserved]
    (j) Adjustments for items of income in respect of a decedent.

   Sec.  1.1367-2 Adjustments to basis of indebtedness to shareholder.

    (a) In general.
    (b) Reduction in basis of indebtedness.
    (1) General rule.
    (2) Termination of shareholder's interest in corporation during 
taxable year.
    (3) Multiple indebtedness.
    (c) Restoration of basis.
    (1) General rule.
    (2) Multiple indebtedness.
    (d) Time at which adjustments to basis of indebtedness are 
effective.
    (1) In general.
    (2) Effect of election under section 1377(a)(2) or Sec.  1.1368-
1(g)(2).
    (e) Examples.

           Sec.  1.1367-3 Effective date and transition rule.

[T.D. 8508, 59 FR 15, Jan. 3, 1994, as amended by T.D. 8852, 64 FR 
71648, Dec. 22, 1999]



Sec.  1.1367-1  Adjustments to basis of shareholder's stock 
in an S corporation.

    (a) In general--(1) Adjustments under section 1367. This section 
provides rules relating to adjustments required by section 1367 to the 
basis of a shareholder's stock in an S corporation. Paragraph (b) of 
this section provides rules concerning increases in the basis of a 
shareholder's stock, and paragraph (c) of this section provides rules 
concerning decreases in the basis of a shareholder's stock.
    (2) Applicability of other Internal Revenue Code provisions. In 
addition to the adjustments required by section 1367 and this section, 
the basis of stock is determined or adjusted under other applicable 
provisions of the Internal Revenue Code.
    (b) Increase in basis of stock--(1) In general. Except as provided 
in Sec.  1.1367-2(c) (relating to restoration of basis of indebtedness 
to the shareholder), the basis of a shareholder's stock in an S 
corporation is increased by the sum of the items described in section 
1367(a)(1). The increase in basis described in section 1367(a)(1)(C) for 
the excess of the deduction for depletion over the basis of the property 
subject to depletion does not include the depletion deduction 
attributable to oil or gas property. See section 613(A)(c)(11).
    (2) Amount of increase in basis of individual shares. The basis of a 
shareholder's share of stock is increased by an amount equal to the 
shareholder's pro rata portion of the items described in section 
1367(a)(1) that is attributable to that share, determined on a per 
share, per day basis in accordance with section 1377(a).
    (c) Decrease in basis of stock--(1) In general. The basis of a 
shareholder's stock in an S corporation is decreased (but not below 
zero) by the sum of the items described in section 1367(a)(2).
    (2) Noncapital, nondeductible expenses. For purposes of section 
1367(a)(2)(D),

[[Page 900]]

expenses of the corporation not deductible in computing its taxable 
income and not properly chargeable to a capital account (noncapital, 
nondeductible expenses) are only those items for which no loss or 
deduction is allowable and do not include items the deduction for which 
is deferred to a later taxable year. Examples of noncapital, 
nondeductible expenses include (but are not limited to) the following: 
Illegal bribes, kickbacks, and other payments not deductible under 
section 162(c); fines and penalties not deductible under section 162(f); 
expenses and interest relating to tax-exempt income under section 265; 
losses for which the deduction is disallowed under section 267(a)(1); 
the portion of meals and entertainment expenses disallowed under section 
274; and the two-thirds portion of treble damages paid for violating 
antitrust laws not deductible under section 162. For basis adjustments 
necessary to coordinate sections 1367 and 362(e)(2), see Sec.  1.362-
4(e)(2).
    (3) Amount of decrease in basis of individual shares. The basis of a 
shareholder's share of stock is decreased by an amount equal to the 
shareholder's pro rata portion of the passthrough items and 
distributions described in section 1367(a)(2) attributable to that 
share, determined on a per share, per day basis in accordance with 
section 1377(a). If the amount attributable to a share exceeds its 
basis, the excess is applied to reduce (but not below zero) the 
remaining bases of all other shares of stock in the corporation owned by 
the shareholder in proportion to the remaining basis of each of those 
shares.
    (d) Time at which adjustments to basis of stock are effective--(1) 
In general. The adjustments described in section 1367(a) to the basis of 
a shareholder's stock are determined as of the close of the 
corporation's taxable year, and the adjustments generally are effective 
as of that date. However, if a shareholder disposes of stock during the 
corporation's taxable year, the adjustments with respect to that stock 
are effective immediately prior to the disposition.
    (2) Adjustment for nontaxable item. An adjustment for a nontaxable 
item is determined for the taxable year in which the item would have 
been includible or deductible under the corporation's method of 
accounting for Federal income tax purposes if the item had been subject 
to Federal income taxation.
    (3) Effect of election under section 1377(a)(2) or Sec.  1.1368-
1(g)(2). If an election under section 1377(a)(2) (to terminate the year 
in the case of the termination of a shareholder's interest) or under 
Sec.  1.1368-1(g)(2) (to terminate the year in the case of a qualifying 
disposition) is made with respect to the taxable year of a corporation, 
this paragraph (d) applies as if the taxable year consisted of separate 
taxable years, the first of which ends at the close of the day on which 
either the shareholder's interest is terminated or a qualifying 
disposition occurs, whichever the case may be.
    (e) Ordering rules for taxable years beginning before January 1, 
1997. For any taxable year of a corporation beginning before January 1, 
1997, except as provided in paragraph (g) of this section, the 
adjustments required by section 1367(a) are made in the following 
order--
    (1) Any increase in basis attributable to the income items described 
in section 1367(a)(1) (A) and (B) and the excess of the deductions for 
depletion described in section 1367(a)(1)(C);
    (2) Any decrease in basis attributable to noncapital, nondeductible 
expenses described in section 1367(a)(2)(D) and the oil and gas 
depletion deduction described in section 1367(a)(2)(E);
    (3) Any decrease in basis attributable to items of loss or deduction 
described in section 1367(a)(2) (B) and (C); and
    (4) Any decrease in basis attributable to a distribution by the 
corporation described in section 1367(a)(2)(A).
    (f) Ordering rules for taxable years beginning on or after August 
18, 1998. For any taxable year of a corporation beginning on or after 
August 18, 1998, except as provided in paragraph (g) of this section, 
the adjustments required by section 1367(a) are made in the following 
order--
    (1) Any increase in basis attributable to the income items described 
in section 1367(a)(1)(A) and (B), and the excess of the deductions for 
depletion described in section 1367(a)(1)(C);
    (2) Any decrease in basis attributable to a distribution by the 
corporation described in section 1367(a)(2)(A);

[[Page 901]]

    (3) Any decrease in basis attributable to noncapital, nondeductible 
expenses described in section 1367(a)(2)(D), and the oil and gas 
depletion deduction described in section 1367(a)(2)(E); and
    (4) Any decrease in basis attributable to items of loss or deduction 
described in section 1367(a)(2)(B) and (C).
    (g) Elective ordering rule. A shareholder may elect to decrease 
basis under paragraph (e)(3) or (f)(4) of this section, whichever 
applies, prior to decreasing basis under paragraph (e)(2) or (f)(3) of 
this section, whichever applies. If a shareholder makes this election, 
any amount described in paragraph (e)(2) or (f)(3) of this section, 
whichever applies, that is in excess of the shareholder's basis in stock 
and indebtedness is treated, solely for purposes of this section, as an 
amount described in paragraph (e)(2) or (f)(3) of this section, 
whichever applies, in the succeeding taxable year. A shareholder makes 
the election under this paragraph by attaching a statement to the 
shareholder's timely filed original or amended return that states that 
the shareholder agrees to the carryover rule of the preceding sentence. 
Once a shareholder makes an election under this paragraph with respect 
to an S corporation, the shareholder must continue to use the rules of 
this paragraph for that S corporation in future taxable years unless the 
shareholder receives the permission of the Commissioner.
    (h) Examples. The following examples illustrate the principles of 
Sec.  1.1367-1. In each example, the corporation is a calendar year S 
corporation:

    Example 1. Adjustments to basis of stock for taxable years beginning 
before January 1, 1997. (i) On December 31, 1994, A owns a block of 50 
shares of stock with an adjusted basis per share of $6 in Corporation S. 
On December 31, 1994, A purchases for $400 an additional block of 50 
shares of stock with an adjusted basis of $8 per share. Thus, A holds 
100 shares of stock for each day of the 1995 taxable year. For S's 1995 
taxable year, A's pro rata share of the amount of the items described in 
section 1367(a)(1)(A) (relating to increases in basis of stock) is $300, 
and A's pro rata share of the amount of the items described in section 
1367(a)(2) (B) and (D) (relating to decreases in basis of stock) is 
$500. S makes a distribution to A in the amount of $100 during 1995.
    (ii) Pursuant to the ordering rules of paragraph (e) of this 
section, A increases the basis of each share of stock by $3 ($300/100 
shares) and decreases the basis of each share of stock by $5 ($500/100 
shares). Then A reduces the basis of each share by $1 ($100/100 shares) 
for the distribution. Thus, on January 1, 1996, A has a basis of $3 per 
share in his original block of 50 shares ($6 + $3-$5-$1) and a basis of 
$5 per share in the second block of 50 shares ($8 + $3-$5-$1).
    Example 2. Adjustments to basis of stock for taxable years beginning 
on or after August 18, 1998. (i) On December 31, 2001, A owns a block of 
50 shares of stock with an adjusted basis per share of $6 in Corporation 
S. On December 31, 2001, A purchases for $400 an additional block of 50 
shares of stock with an adjusted basis of $8 per share. Thus, A holds 
100 shares of stock for each day of the 2002 taxable year. For S's 2002 
taxable year, A's pro rata share of the amount of items described in 
section 1367(a)(1)(A) (relating to increases in basis of stock) is $300, 
A's pro rata share of the amount of the items described in section 
1367(a)(2)(B) (relating to decreases in basis of stock attributable to 
items of loss and deduction) is $300, and A's pro rata share of the 
amount of the items described in section 1367(a)(2)(D) (relating to 
decreases in basis of stock attributable to noncapital, nondeductible 
expenses) is $200. S makes a distribution to A in the amount of $100 
during 2002.
    (ii) Pursuant to the ordering rules of paragraph (f) of this 
section, A first increases the basis of each share of stock by $3 ($300/
100 shares) and then decreases the basis of each share by $1 ($100/100 
shares) for the distribution. A next decreases the basis of each share 
by $2 ($200/100 shares) for the noncapital, nondeductible expenses and 
then decreases the basis of each share by $3 ($300/100 shares) for the 
items of loss. Thus, on January 1, 2003, A has a basis of $3 per share 
in the original block of 50 shares ($6 + $3 - $1 - $2 - $3) and a basis 
of $5 per share in the second block of 100 shares ($8 + $3 - $1 - $2 - 
$3).
    Example 3. Adjustments attributable to basis of individual shares of 
stock. (i) On December 31, 1993, B owns one share of S corporation's 10 
outstanding shares of stock. The basis of B's share is $30. On July 2, 
1994, B purchases from another shareholder two shares for $25 each. 
During 1994, S corporation has no income or deductions but incurs a loss 
of $365. Under section 1377(a)(1)(A) and paragraph (c)(3) of this 
section, the amount of the loss assigned to each day of S's taxable year 
is $1.00 ($365/365 days). For each day, $.10 is allocated to each 
outstanding share ($1.00 amount of loss assigned to each day/10 shares).
    (ii) B owned one share for 365 days and, therefore, reduces the 
basis of that share by the amount of loss attributable to it, i.e., 
$36.50 ($.10 x 365 days). B owned two shares for 182 days and, 
therefore, reduces the basis of each of those shares by the amount of 
the

[[Page 902]]

loss attributable to each, i.e., $18.20 ($.10 x 182 days).
    (iii) The bases of the shares are decreased as follows:

------------------------------------------------------------------------
                                                                 Excess
             Share               Original  Decrease  Adjusted    basis
                                  basis                basis   reduction
------------------------------------------------------------------------
No. 1.........................     $30.00   $36.50         $0     $6.50
No. 2.........................      25.00    18.20       6.80         0
No. 3.........................      25.00    18.20       6.80         0
                                                    ----------
    Total remaining basis.....  .........  ........     13.60  .........
------------------------------------------------------------------------

    (iv) Because the decrease in basis attributable to share No. 1 
exceeds the basis of share No. 1 by $6.50 ($36.50 - $30.00), the excess 
is applied to reduce the bases of shares No. 2 and No. 3 in proportion 
to their remaining bases. Therefore, the bases of share No. 2 and share 
No. 3 are each decreased by an additional $3.25 ($6.50 x $6.80/$13.60). 
After this decrease, Share No. 1 has a basis of zero, Share No. 2 has a 
basis of $3.55, and Share No. 3 has a basis of $3.55.
    Example 4. Effects of section 1377(a)(2) election and distribution 
on basis of stock for taxable years beginning before January 1, 1997. 
(i) On January 1, 1994, individuals B and C each own 50 of the 100 
shares of issued and outstanding stock of Corporation S. B's adjusted 
basis in each share of stock is $120, and C's is $80. On June 30, 1994, 
S distributes $6,000 to B and $6,000 to C. On June 30, 1994, B sells all 
of her S stock for $10,000 to D. S elects under section 1377(a)(2) to 
treat its 1994 taxable year as consisting of two taxable years, the 
first of which ends at the close of June 30, the date on which B 
terminates her interest in S.
    (ii) For the period January 1, 1994, through June 30, 1994, S has 
nonseparately computed income of $6,000 and a separately stated 
deduction item of $4,000. Therefore, on June 30, 1994, B and C, pursuant 
to the ordering rules of paragraph (e) of this section, increase the 
basis of each share by $60 ($6,000/100 shares) and decrease the basis of 
each share by $40 ($4,000/100 shares). Then B and C reduce the basis of 
each share by $120 ($12,000/100 shares) for the distribution.
    (iii) The basis of B's stock is reduced from $120 to $20 per share 
($120 + $60-$40-$120). The basis of C's stock is reduced from $80 to $0 
per share ($80 + $60-$40-$120). See section 1368 and Sec.  1.1368-1 (c) 
and (d) for rules relating to the tax treatment of the distributions.
    (iv) Pursuant to paragraph (d)(3) of this section, the net reduction 
in the basis of B's shares of the S stock required by section 1367 and 
this section is effective immediately prior to B's sale of her stock. 
Thus, B's basis for determining gain or loss on the sale of the S stock 
is $20 per share, and B has a gain on the sale of $180 ($200-$20) per 
share.
    Example 5. Effects of section 1377(a)(2) election and distribution 
on basis of stock for taxable years beginning on or after August 18, 
1998. (i) The facts are the same as in Example 4, except that all of the 
events occur in 2001 rather than in 1994 and except as follows: On June 
30, 2001, B sells 25 shares of her stock for $5,000 to D and 25 shares 
back to Corporation S for $5,000. Under section 1377(a)(2)(B) and Sec.  
1.1377-1(b)(2), B, C, and D are affected shareholders because B has 
transferred shares to Corporations S and D. Pursuant to section 
1377(a)(2)(A) and Sec.  1.1377-1(b)(1), B, C, and D, the affected 
shareholders, and Corporation S agree to treat the taxable year 2001 as 
if it consisted of two separate taxable years for all affected 
shareholders for the purposes set forth in Sec.  1.1377-1(b)(3)(i).
    (ii) On June 30, 2001, B and C, pursuant to the ordering rules of 
paragraph (f)(1) of this section, increase the basis of each share by 
$60 ($6,000/100 shares) for the nonseparately computed income. Then B 
and C reduce the basis of each share by $120 ($12,000/100 shares) for 
the distribution. Finally, B and C decrease the basis of each share by 
$40 ($4,000/100 shares) for the separately stated deduction item.
    (iii) The basis of the stock of B is reduced from $120 to $20 per 
share ($120 + $60 - $120 - $40). Prior to accounting for the separately 
stated deduction item, the basis of the stock of C is reduced from $80 
to $20 ($80 + $60 - $120). Finally, because the period from January 1 
through June 30, 2001 is treated under Sec.  1.1377-1(b)(3)(i) as a 
separate taxable year for purposes of making adjustments to the basis of 
stock, under section 1366(d) and Sec.  1.1366-2(a)(3), C may deduct only 
$20 per share of the remaining $40 of the separately stated deduction 
item, and the basis of the stock of C is reduced from $20 per share to 
$0 per share. Under section 1366 and Sec.  1.1366-2(a)(3), C's remaining 
separately stated deduction item of $20 per share is treated as having 
been incurred in the first succeeding taxable year of Corporation S, 
which, for this purpose, begins on July 1, 2001.

    (i) [Reserved]
    (j) Adjustments for items of income in respect of a decedent. The 
basis determined under section 1014 of any stock in an S corporation is 
reduced by the portion of the value of the stock that is attributable to 
items constituting income in respect of a decedent. For the 
determination of items realized by an S corporation constituting income 
in respect of a decedent, see sections

[[Page 903]]

1367(b)(4)(A) and 691 and applicable regulations thereunder. For the 
determination of the allowance of a deduction for the amount of estate 
tax attributable to income in respect of a decedent, see section 691(c) 
and applicable regulations thereunder.

[T.D. 8508, 59 FR 15, Jan. 3, 1994, as amended by T.D. 8852, 64 FR 
71648, Dec. 22, 1999; 65 FR 12471, Mar. 9, 2000; 65 FR 16319, Mar. 28, 
2000; T.D. 9633, 78 FR 54168, Sept. 3, 2013; T.D. 9682, 79 FR 42678, 
July 23, 2014; T.D. 9759, 81 FR 17083, Mar. 28, 2016]



Sec.  1.1367-2  Adjustments to basis of indebtedness to shareholder.

    (a) In general--(1) Adjustments under section 1367. This section 
provides rules relating to adjustments required by subchapter S to the 
basis of indebtedness (including open account debt as described in 
paragraph (a)(2) of this section) of an S corporation to a shareholder. 
The basis of indebtedness of the S corporation to a shareholder is 
reduced as provided in paragraph (b) of this section and restored as 
provided in paragraph (c) of this section in accordance with the timing 
rules in paragraph (d) of this section.
    (2) Open Account Debt--(i) General rule. The term open account debt 
means shareholder advances not evidenced by separate written instruments 
and repayments on the advances, the aggregate outstanding principal of 
which does not exceed $25,000 of indebtedness of the S corporation to 
the shareholder at the close of the S corporation's taxable year. 
Advances and repayments on open account debt are treated as a single 
indebtedness.
    (ii) Exception. If the shareholder advances not evidenced by a 
separate written instrument, net of repayments, exceeds an aggregate 
outstanding principal amount of $25,000 at the close of the S 
corporation's taxable year, for any subsequent taxable year the 
aggregate principal amount of that indebtedness is treated in the same 
manner as indebtedness evidenced by a separate written instrument for 
purposes of this section. For any subsequent taxable year, that 
indebtedness is not open account debt and is subject to all basis 
adjustment rules applicable to basis of indebtedness of an S corporation 
to a shareholder in this section.
    (b) Reduction in basis of indebtedness--(1) General rule. If, after 
making the adjustments required by section 1367(a)(1) for any taxable 
year of the S corporation, the amounts specified in section 1367(a)(2) 
(B), (C), (D), and (E) (relating to losses, deductions, noncapital, 
nondeductible expenses, and certain oil and gas depletion deductions) 
exceed the basis of a shareholder's stock in the corporation, the excess 
is applied to reduce (but not below zero) the basis of any indebtedness 
of the S corporation to the shareholder held by the shareholder at the 
close of the corporation's taxable year. Any such indebtedness that has 
been satisfied by the corporation, or disposed of or forgiven by the 
shareholder, during the taxable year, is not held by the shareholder at 
the close of that year and is not subject to basis reduction.
    (2) Termination of shareholder's interest in corporation during 
taxable year. If a shareholder terminates his or her interest in the 
corporation during the taxable year, the rules of this paragraph (b) are 
applied with respect to any indebtedness of the S corporation held by 
the shareholder immediately prior to the termination of the 
shareholder's interest in the corporation.
    (3) Multiple indebtedness. If a shareholder holds more than one 
indebtedness at the close of the corporation's taxable year or, if 
applicable, immediately prior to the termination of the shareholder's 
interest in the corporation, the reduction in basis is applied to each 
indebtedness in the same proportion that the basis of each indebtedness 
bears to the aggregate bases of the indebtedness to the shareholder.
    (c) Restoration of basis--(1) General rule. If, for any taxable year 
of an S corporation beginning after December 31, 1982, there has been a 
reduction in the basis of an indebtedness of the S corporation to a 
shareholder under section 1367(b)(2)(A), any net increase in any 
subsequent taxable year of the corporation is applied to restore that 
reduction. For purposes of this section, net increase with respect to a 
shareholder means the amount by which the shareholder's pro rata share 
of the items described in section 1367(a)(1) (relating to income items 
and excess deduction for depletion) exceed the items

[[Page 904]]

described in section 1367(a)(2) (relating to losses, deductions, 
noncapital, nondeductible expenses, certain oil and gas depletion 
deductions, and certain distributions) for the taxable year. These 
restoration rules apply only to indebtedness held by a shareholder as of 
the beginning of the taxable year in which the net increase arises. The 
reduction in basis of indebtedness must be restored before any net 
increase is applied to restore the basis of a shareholder's stock in an 
S corporation. In no event may the shareholder's basis of indebtedness 
be restored above the adjusted basis of the indebtedness under section 
1016(a), excluding any adjustments under section 1016(a)(17) for prior 
taxable years, determined as of the beginning of the taxable year in 
which the net increase arises.
    (2) Multiple indebtedness. If a shareholder holds more than one 
indebtedness (including any open account debt and any debt treated as a 
single indebtedness under paragraph (a)(2)(ii) of this section) as of 
the beginning of an S corporation's taxable year, any net increase is 
applied first to restore the reduction of basis in any indebtedness 
repaid (in whole or in part) in that taxable year to the extent 
necessary to offset any gain that would otherwise be realized on the 
repayment. Any remaining net increase is applied to restore each 
outstanding indebtedness (including any open account debt and any debt 
treated as a single indebtedness under paragraph (a)(2)(ii) of this 
section) in proportion to the amount that the basis of each outstanding 
indebtedness has been reduced under section 1367(b)(2)(A) and paragraph 
(b) of this section and not restored under section 1367(b)(2)(B) and 
this paragraph (c).
    (d) Time at which adjustments to basis of indebtedness are 
effective--
    (1) In general. The amounts of the adjustments to basis of 
indebtedness (including open account debt) provided in section 
1367(b)(2) and this section are determined as of the close of the S 
corporation's taxable year, and the adjustments are generally effective 
as of the close of the S corporation's taxable year. However, if the 
shareholder is not a shareholder in the S corporation at that time, 
these adjustments are effective immediately before the shareholder 
terminates his or her interest in the S corporation. Except as provided 
in paragraph (d)(2) of this section, if a debt is disposed of or repaid 
in whole or in part before the close of the taxable year, the basis of 
that indebtedness is restored under paragraph (c) of this section, 
effective immediately before the disposition or the first repayment on 
the debt during the taxable year. To the extent any indebtedness of the 
S corporation to the shareholder is disposed of or repaid (in whole or 
in part) during the taxable year and the shareholder's basis in that 
indebtedness has been reduced under paragraph (b) of this section and is 
not restored completely under paragraph (c) of this section, the 
disposition or repayment is a recognition event effective immediately 
before the indebtedness is disposed of or repaid (in whole or in part).
    (2) Open account debt--(i) In general. All advances and repayments 
on open account debt (as described in paragraph (a)(2)(i) of this 
section) during the S corporation's taxable year are netted at the close 
of the S corporation's taxable year to determine the amount of any net 
advance or net repayment. The net advance or net repayment is combined 
with the outstanding aggregate principal balance of the existing open 
account debt and that amount is carried forward to the beginning of the 
subsequent taxable year as the outstanding aggregate principal amount of 
the open account debt (unless the aggregate principal amount meets the 
exception defined in paragraph (a)(2)(ii) of this section at the close 
of the taxable year). However, if the shareholder in the S corporation 
is not a shareholder of the S corporation at the close of the S 
corporation's taxable year, such advances and repayments on open account 
debt are netted, and the basis of that indebtedness is restored under 
paragraph (c) of this section, effective immediately before the 
shareholder terminates his or her interest in the S corporation. If any 
open account debt is disposed of before or upon the close of the taxable 
year, the disposition is effective at the close of the S corporation's 
taxable year, and all advances and repayments are netted immediately 
prior to the disposition and the

[[Page 905]]

basis of that indebtedness is restored under paragraph (c) of this 
section, effective at the close of the S corporation's taxable year.
    (ii) Exception. Shareholder indebtedness that is open account debt 
at the beginning of the taxable year but meets the exception defined in 
paragraph (a)(2)(ii) of this section at the close of the taxable year, 
adjustments to the basis of the indebtedness for that taxable year 
follow the provisions for open account debt. The resulting aggregate 
principal amount of indebtedness is treated as the principal amount of a 
debt evidenced by a separate written instrument for any subsequent 
taxable year, and is no longer subject to the open account debt 
provisions of this section.
    (3) Effect of election under section 1377(a)(2) or Sec.  1.1368-
1(g)(2). If an election is made under section 1377(a)(2) (to terminate 
the year in the case of the termination of a shareholder's interest) or 
under Sec.  1.1368-1(g)(2) (to terminate the year in the case of a 
qualifying disposition), this paragraph (d) applies as if the taxable 
year consisted of separate taxable years, the first of which ends at the 
close of the day on which the shareholder either terminates his or her 
interest in the corporation or disposes of a substantial amount of 
stock, whichever the case may be.
    (e) Examples. The following examples illustrate the principles of 
Sec.  1.1367-2. In each example, the corporation is a calendar year S 
corporation. The lending transactions described in the examples do not 
result in foregone interest (within the meaning of section 7872(e)(2)), 
original issue discount (within the meaning of section 1273), or total 
unstated interest (within the meaning of section 483(b)).

    Example 1. Reduction in basis of indebtedness. (i) A has been the 
sole shareholder in Corporation S since 1992. In 1993, A loans S $1,000 
(Debt No. 1), which is evidenced by a ten-year promissory note in the 
face amount of $1,000. In 1996, A loans S $5,000 (Debt No. 2), which is 
evidenced by a demand promissory note. On December 31, 1996, the basis 
of A's stock is zero; the basis of Debt No. 1 has been reduced under 
paragraph (b) of this section to $0; and the basis of Debt No. 2 has 
been reduced to $1,000. On January 1, 1997, A loans S $4,000 (Debt No. 
3), which is evidenced by a demand promissory note. For S's 1997 taxable 
year, the sum of the amounts specified in section 1367(a)(1) (in this 
case, nonseparately computed income and the excess deduction for 
depletion) is $6,000, and the sum of the amounts specified in section 
1367(a)(2) (B), (D), and (E) (in this case, items of separately stated 
deductions and losses, noncapital, nondeductible expenses, and certain 
oil and gas depletion deductions--there is no nonseparately computed 
loss) is $10,000. Corporation S makes no payments to A on any of the 
loans during 1997.
    (ii) The $4,000 excess of loss and deduction items is applied to 
reduce the basis of each indebtedness in proportion to the basis of that 
indebtedness over the aggregate bases of the indebtedness to the 
shareholder (determined immediately before any adjustment under section 
1367(b)(2)(A) and paragraph (b) of this section is effective for the 
taxable year). Thus, the basis of Debt No. 2 is reduced in an amount 
equal to $800 ($4,000 (excess) x $1,000 (basis of Debt No. 2)/$5,000 
(total basis of all debt)). Similarly, the basis in Debt No. 3 is 
reduced in an amount equal to $3,200 ($4,000 x $4,000/$5,000). 
Accordingly, on December 31, 1997, A's basis in his stock is zero and 
his bases in the three debts are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                  1/1/96   12/31/96   1/1/97   12/31/97   1/1/98
                              Debt                                basis   reduction   basis   reduction   basis
----------------------------------------------------------------------------------------------------------------
No. 1..........................................................   $1,000     $1,000       $0         $0       $0
No. 2..........................................................    5,000      4,000    1,000        800      200
No. 3..........................................................  .......  .........    4,000      3,200      800
----------------------------------------------------------------------------------------------------------------

    Example 2. Restoration of basis of indebtedness. (i) The facts are 
the same as in Example 1. On July 1, 1998, S completely repays Debt No. 
3, and, for S's 1998 taxable year, the net increase (within the meaning 
of paragraph (c) of this section) with respect to A equals $4,500.
    (ii) The net increase is applied first to restore the bases in the 
debts held on January 1, 1998, before any of the net increase is applied 
to increase A's basis in his shares of S stock. The net increase is 
applied to restore first the reduction of basis in indebtedness repaid 
in 1998. Any remaining net increase is applied to restore the bases of 
the outstanding debts in proportion to the amount that each of these 
outstanding debts have been reduced previously under paragraph (b) of 
this section and have not been restored. As of December 31, 1998, the 
total reduction in A's debts held on January 1, 1998 equals $9,000. 
Thus, the basis of Debt No. 3 is restored by $3,200 (the amount of the 
previous reduction) to $4,000. A's basis in Debt No. 3 is treated as 
restored immediately before that debt is repaid. Accordingly, A does not 
realize any gain on the repayment. The remaining net increase of $1,300 
($4,500-$3,200) is applied to restore the bases of Debt No. 1 and Debt 
No. 2. As of December 31, 1998, the total reduction in these outstanding 
debts is $5,800

[[Page 906]]

($9,000-$3,200). The basis of Debt No. 1 is restored in an amount equal 
to $224 ($1,300 x $1,000/$5,800). Similarly, the basis in Debt No. 2 is 
restored in an amount equal to $1,076 ($1,300 x $4,800/$5,800). On 
December 31, 1998, A's basis in his S stock is zero and his bases in the 
two remaining debts are as follows:

------------------------------------------------------------------------
   Original        Amount                        Amount       12/31/98
    basis         reduced      1/1/98 basis     restored        basis
------------------------------------------------------------------------
     $1,000         $1,000             $0           $224           $224
      5,000          4,800            200          1,076          1,276
------------------------------------------------------------------------

    Example 3. Full restoration of basis in indebtedness when debt is 
repaid in part during the taxable year. (i) C has been a shareholder in 
Corporation S since 1992. In 1997, C loans S $1,000. S issues its note 
to C in the amount of $1,000, of which $950 is payable on March 1, 1998, 
and $50 is payable on March 1, 1999. On December 31, 1997, C's basis in 
all her shares of S stock is zero and her basis in the note has been 
reduced under paragraph (b) of this section to $900. For 1998, the net 
increase (within the meaning of paragraph (c) of this section) with 
respect to C is $300.
    (ii) Because C's basis of indebtedness was reduced in a prior 
taxable year under Sec.  1.1367-2(b), the net increase for 1998 is 
applied to restore this reduction. The restored basis cannot exceed the 
adjusted basis of the debt as of the beginning of the first day of 1998, 
excluding prior adjustments under section 1367, or $1,000. Therefore, 
$100 of the $300 net increase is applied to restore the basis of the 
debt from $900 to $1,000 effective immediately before the repayment on 
March 1, 1998. The remaining net increase of $200 increases C's basis in 
her stock.
    Example 4. Determination of net increase--distribution in excess of 
increase in basis. (i) D has been the sole shareholder in Corporation S 
since 1990. On January 1, 1996, D loans S $10,000 in return for a note 
from S in the amount of $10,000 of which $5,000 is payable on each of 
January 1, 2000, and January 1, 2001. On December 31, 1997, the basis of 
D's shares of S stock is zero, and his basis in the note has been 
reduced under paragraph (b) of this section to $8,000. During 1998, the 
sum of the items under section 1367(a)(1) (relating to increases in 
basis of stock) with respect to D equals $10,000 (in this case, 
nonseparately computed income), and the sum of the items under section 
1367(a)(2)(B), (C), (D), and (E) (relating to decreases in basis of 
stock) with respect to D equals $0. During 1998, S also makes 
distributions to D totaling $11,000. This distribution is an item that 
reduces basis of stock under section 1367(a)(2)(A) and must be taken 
into account for purposes of determining whether there is a net increase 
for the taxable year. Thus, for 1998, there is no net increase with 
respect to D because the amount of the items provided in section 
1367(a)(1) do not exceed the amount of the items provided in section 
1367(a)(2).
    (ii) Because there is no net increase with respect to D for 1998, 
none of the 1997 reduction in D's basis in the indebtedness is restored. 
The $10,000 increase in basis under section 1367(a)(1) is applied to 
increase D's basis in his S stock. Under section 1367(a)(2)(A), the 
$11,000 distribution with respect to D's stock reduces D's basis in his 
shares of S stock to $0. See section 1368 and Sec.  1.1368-1 (c) and (d) 
for the tax treatment of the $1,000 distribution in excess of D's basis.
    Example 5. Distributions less than increase in basis. (i) The facts 
are the same as in Example 4, except that in 1998 S makes distributions 
to D totaling $8,000. On these facts, for 1998, there is a net increase 
with respect to D of $2,000 (the amount by which the items provided in 
section 1367(a)(1) exceed the amount of the items provided in section 
1367(a)(2)).
    (ii) Because there is a net increase of $2,000 with respect to D for 
1998, $2,000 of the $10,000 increase in basis under section 1367(a)(1) 
is first applied to restore D's basis in the indebtedness to $10,000 
($8,000 + $2,000). Accordingly, on December 31, 1998, D has a basis in 
his shares of S stock of $0 ($0 + $8,000 (increase in basis remaining 
after restoring basis in indebtedness)--$8,000 (distribution)) and a 
basis in the note of $10,000.
    Example 6. The $25,000 aggregate principal amount applies to each 
shareholder. (i) A and B have been the two shareholders in Corporation S 
since 2000. As of the end of the 2008 taxable year, the bases of A's and 
B's stock are both zero. On June 1, 2009, A advances S $16,000, which is 
not evidenced by a written instrument. On August 1, 2009, B advances S 
$22,000, which is not evidenced by a written instrument. Both the 
$16,000 advance and the $22,000 advance are open account debt and remain 
outstanding at those amounts during 2009. There is no net increase under 
paragraph (c) of this section in year 2009.
    (ii) At the close of the 2009 taxable year, A's open account debt 
does not exceed $25,000. A therefore carries forward to the beginning of 
the 2010 taxable year the $16,000 as open account debt.
    (iii) At the close of the 2009 taxable year, B's open account debt 
does not exceed $25,000. B therefore carries forward to the beginning of 
the 2010 taxable year the $22,000 as open account debt.
    Example 7. Treatment of open account debt. (i) The facts are the 
same as in Example 6, in addition to which, on December 31, 2009, A's 
basis in the open account debt is reduced under paragraph (b) of this 
section to $8,000. On April 1, 2010, S repays A $4,000 of the open 
account indebtedness. On September 1, 2010, A advances S an additional 
$1,000, which is not evidenced by a written instrument. There is no net 
increase under paragraph (c) of this section in year 2010.
    (ii) The $4,000 April repayment S makes to A and A's $1,000 
September advance are netted to result in a net repayment of $3,000 for

[[Page 907]]

the taxable year on A's $16,000 open account debt carried forward from 
2009. Because there is no net increase in 2010, no basis of indebtedness 
is restored for the 2010 taxable year, and A realizes $1,500 of income 
on the $3,000 net repayment at the close of the 2010 taxable year.
    (iii) At close of the 2010 taxable year, A's open account debt does 
not exceed $25,000. The net repayment of $3,000 for the taxable year on 
A's $16,000 open account debt carried forward from 2009, leaves A with 
an open account debt of $13,000 to carry forward as open account debt to 
the beginning of the 2011 taxable year.
    Example 8. Treatment of shareholder indebtedness not evidenced by a 
written instrument which exceeds $25,000. (i) The facts are the same as 
in Example 7, in addition to which, on February 1, 2011, S repays $5,000 
of the open account debt and on March 1, 2011, A advances S $20,000, 
which is not evidenced by a written instrument.
    (ii) At the close of the 2010 taxable year, A has an open account 
debt of $13,000 to carry forward as open account debt to the beginning 
of the 2011 taxable year.
    (iii) The 2011 advances and repayments are netted to result in a net 
advance of $15,000 on A's $13,000 open account debt carried forward from 
2010, increasing A's open account debt to $28,000 as of the close of the 
2011 taxable year. Because A's open account debt exceeds $25,000, for 
any subsequent taxable year the $28,000 indebtedness will be treated in 
the same manner as indebtedness evidenced by a separate written 
instrument for the purposes of this section. Because there is no net 
increase in 2011, no basis of indebtedness is restored for the 2011 
taxable year.

[T.D. 8508, 59 FR 16, Jan. 3, 1994, as amended by T.D. 9428, 73 FR 
62202, Oct. 20, 2008; T.D. 9428, 73 FR 67389, Nov. 14, 2008; T.D. 9428, 
73 FR 71545, Nov. 25, 2008]



Sec.  1.1367-3  Effective/Applicability date.

    Section 1.1367-2(a), (c)(2), (d)(2), and (e) Example 6, Example 7, 
and Example 8 apply to any shareholder advances to the S corporation 
made on or after October 20, 2008 and repayments on those advances by 
the S corporation. The rules that apply with respect to shareholder 
advances to the S corporation made before October 20, 2008, are 
contained in Sec.  1.1367-3 in effect prior to October 20, 2008. (See 26 
CFR part 1 revised as of April 1, 2007.) Shareholders have the option to 
apply these rules to shareholder advances to the S corporation made 
before October 20, 2008, and repayments on those advances by the S 
corporation. Section 1.1367-1(h), Example 5(iii) applies on and after 
July 23, 2014. The rules that apply before July 23, 2014 are contained 
in Sec.  1.1367-3 in effect prior to July 23, 2014 (see 26 CFR part 1 
revised as of April 1, 2014).

[T.D. 9428, 73 FR 62203, Oct. 20, 2008, as amended by T.D. 9682, 79 FR 
42678, July 23, 2014]



Sec.  1.1368-0  Table of contents.

    The following table of contents is provided to facilitate the use of 
Sec. Sec.  1.1368-1 through 1.1368-4.

             Sec.  1.1368-1 Distributions by S corporations.

    (a) In general.
    (b) Date distribution made.
    (c) S corporation with no earnings and profits.
    (d) S corporation with earnings and profits.
    (1) General treatment of distribution.
    (2) Previously taxed income.
    (e) Certain adjustments taken into account.
    (1) Taxable years beginning before January 1, 1997.
    (2) Taxable years beginning on or after August 18, 1998.
    (f) Elections relating to source of distributions.
    (1) In general.
    (2) Election to distribute earnings and profits first.
    (i) In general.
    (ii) Previously taxed income.
    (iii) Corporation with subchapter C and subchapter S earnings and 
profits.
    (3) Election to make a deemed dividend.
    (4) Election to forego previously taxed income.
    (5) Time and manner of making elections.
    (i) For earnings and profits.
    (ii) For previously taxed income and deemed dividends.
    (iii) Corporate statement regarding elections.
    (iv) Irrevocable elections.
    (g) Special rule.
    (1) Election to terminate year under Sec.  1.1368-1(g)(2).
    (2) Election in case of a qualifying disposition.
    (i) In general.
    (ii) Effect of the election.
    (iii) Time and manner of making election.
    (iv) Coordination with election under section 1377(a)(2).

          Sec.  1.1368-2 Accumulated adjustments account (AAA).

    (a) Accumulated adjustments account.
    (1) In general.
    (2) Increases to the AAA.
    (3) Decreases to the AAA.
    (i) In general.

[[Page 908]]

    (ii) Extent of allowable reduction.
    (iii) Decrease to the AAA for distributions.
    (4) Ordering rules for the AAA for taxable years beginning before 
January 1, 1997.
    (5) Ordering rules for the AAA for taxable years beginning on or 
after August 18, 1998.
    (b) Distributions in excess of the AAA.
    (1) In general.
    (2) Amount of the AAA allocated to each distribution.
    (c) Distribution of money and loss property.
    (1) In general.
    (2) Allocating the AAA to loss property.
    (d) Adjustment in the case of redemptions, liquidations, 
reorganizations, and divisions.
    (1) Redemptions.
    (i) General rule.
    (ii) Special rule for years in which a corporation makes both 
ordinary and redemption distributions.
    (iii) Adjustments to earnings and profits.
    (2) Liquidations and reorganizations.
    (3) Corporate separations to which section 368(a)(1)(D) applies.
    (e) Election to terminate year under section 1377(a)(2) or Sec.  
1.1368-1(g)(2).

                        Sec.  1.1368-3 Examples.

           Sec.  1.1368-4 Effective date and transition rule.

[T.D. 8508, 59 FR 18, Jan. 3, 1994, as amended by T.D. 8696, 61 FR 
67455, Dec. 23, 1996; T.D. 8852, 64 FR 71649, Dec. 22, 1999; T.D. 8869, 
65 FR 3855, Jan. 25, 2000]



Sec.  1.1368-1  Distributions by S corporations.

    (a) In general. This section provides rules for distributions made 
by an S corporation with respect to its stock which, but for section 
1368(a) and this section, would be subject to section 301(c) and other 
rules of the Internal Revenue Code that characterize a distribution as a 
dividend.
    (b) Date distribution made. For purposes of section 1368, a 
distribution is taken into account on the date the corporation makes the 
distribution, regardless of when the distribution is treated as received 
by the shareholder.
    (c) S corporation with no earnings and profits. A distribution made 
by an S corporation that has no accumulated earnings and profits as of 
the end of the taxable year of the S corporation in which the 
distribution is made is treated in the manner provided in section 
1368(b).
    (d) S corporation with earnings and profits--(1) General treatment 
of distribution. Except as provided in paragraph (d)(2) of this section, 
a distribution made with respect to its stock by an S corporation that 
has accumulated earnings and profits as of the end of the taxable year 
of the S corporation in which the distribution is made is treated in the 
manner provided in section 1368(c). See section 316 and Sec.  1.316-2 
for provisions relating to the allocation of earnings and profits among 
distributions.
    (2) Previously taxed income. This paragraph (d)(2) applies to 
distributions by a corporation that has both accumulated earnings and 
profits and previously taxed income (within the meaning of section 
1375(d)(2), as in effect prior to its amendment by the Subchapter S 
Revision Act of 1982, and the regulations thereunder) with respect to 
one or more shareholders. In the case of such a distribution, that 
portion remaining after the application of section 1368(c)(1) (relating 
to distributions from the accumulated adjustments account (AAA) as 
defined in Sec.  1.1368-2(a)) is treated in the manner provided in 
section 1368(b) (relating to S corporations without earnings and 
profits) to the extent that portion is a distribution of money and does 
not exceed the shareholder's net share immediately before the 
distribution of the corporation's previously taxed income. The AAA and 
the earnings and profits of the corporation are not decreased by that 
portion of the distribution. Any distribution remaining after the 
application of this paragraph (d)(2) is treated in the manner provided 
in section 1368(c) (2) and (3).
    (e) Certain adjustments taken into account--(1) Taxable years 
beginning before January 1, 1997. For any taxable year of the 
corporation beginning before January 1, 1997, paragraphs (c) and (d) of 
this section are applied only after taking into account--
    (i) The adjustments to the basis of the shares of a shareholder's 
stock described in section 1367 (without regard to section 1367(a)(2)(A) 
(relating to decreases attributable to distributions not includible in 
income)) for the S corporation's taxable year; and
    (ii) The adjustments to the AAA required by section 1368(e)(1)(A) 
(but without regard to the adjustments for

[[Page 909]]

distributions under Sec.  1.1368-2(a)(3)(iii)) for the S corporation's 
taxable year.
    (2) Taxable years beginning on or after August 18, 1998. For any 
taxable year of the corporation beginning on or after August 18, 1998, 
paragraphs (c) and (d) of this section are applied only after taking 
into account--
    (i) The adjustments to the basis of the shares of a shareholder's 
stock described in section 1367(a)(1) (relating to increases in basis of 
stock) for the S corporation's taxable year; and
    (ii) The adjustments to the AAA required by section 1368(e)(1)(A) 
(but without regard to the adjustments for distributions under Sec.  
1.1368-2(a)(3)(iii)) for the S corporation's taxable year. Any net 
negative adjustment (as defined in section 1368(e)(1)(C)(ii)) for the 
taxable year shall not be taken into account.
    (f) Elections relating to source of distributions--(1) In general. 
An S corporation may modify the application of paragraphs (c) and (d) of 
this section by electing (pursuant to paragraph (f)(5) of this 
section)--
    (i) To distribute earnings and profits first as described in 
paragraph (f)(2) of this section;
    (ii) To make a deemed dividend as described in paragraph (f)(3) of 
this section; or
    (iii) To forego previously taxed income as described in paragraph 
(f)(4) of this section.
    (2) Election to distribute earnings and profits first--(i) In 
general. An S corporation with accumulated earnings and profits may 
elect under this paragraph (f)(2) for any taxable year to distribute 
earnings and profits first as provided in section 1368(e)(3). Except as 
provided in paragraph (f)(2)(ii) of this section, distributions made by 
an S corporation making this election are treated as made first from 
earnings and profits under section 1368(c)(2) and second from the AAA 
under section 1368(c)(1). Any remaining portion of the distribution is 
treated in the manner provided in section 1368(b). This election is 
effective for all distributions made during the year for which the 
election is made.
    (ii) Previously taxed income. If a corporation to which paragraph 
(d)(2) of this section (relating to corporations with previously taxed 
income) applies makes the election provided in this paragraph (f)(2) for 
the taxable year, and does not make the election to forego previously 
taxed income under paragraph (f)(4) of this section, distributions by 
the S corporation during the taxable year are treated as made first, 
from previously taxed income under paragraph (d)(2) of this section; 
second, from earnings and profits under section 1368(c)(2); and third, 
from the AAA under section 1368(c)(1). Any portion of a distribution 
remaining after the previously taxed income, earnings and profits, and 
the AAA are exhausted is treated in the manner provided in section 
1368(b).
    (iii) Corporation with subchapter C and subchapter S earnings and 
profits. If an S corporation that makes the election provided in this 
paragraph (f)(2) has both subchapter C earnings and profits (as defined 
in section 1362(d)(3)(B)) and subchapter S earnings and profits in a 
taxable year of the corporation in which the distribution is made, the 
distribution is treated as made first from subchapter C earnings and 
profits, and second from subchapter S earnings and profits. Subchapter S 
earnings and profits are earnings and profits accumulated in a taxable 
year beginning before January 1, 1983 (or in the case of a qualified 
casualty insurance electing small business corporation or a qualified 
oil corporation, earnings and profits accumulated in any taxable year), 
for which an election under subchapter S of chapter 1 of the Internal 
Revenue Code was in effect.
    (3) Election to make a deemed dividend. An S corporation may elect 
under this paragraph (f)(3) to distribute all or part of its subchapter 
C earnings and profits through a deemed dividend. If an S corporation 
makes the election provided in this paragraph (f)(3), the S corporation 
will be considered to have made the election provided in paragraph 
(f)(2) of this section (relating to the election to distribute earnings 
and profits first). The amount of the deemed dividend may not exceed the 
subchapter C earnings and profits of the corporation on the last day of 
the taxable year, reduced by any actual distributions of subchapter C 
earnings and profits made during the taxable

[[Page 910]]

year. The amount of the deemed dividend is considered, for all purposes 
of the Internal Revenue Code, as if it were distributed in money to the 
shareholders in proportion to their stock ownership, received by the 
shareholders, and immediately contributed by the shareholders to the 
corporation, all on the last day of the corporation's taxable year.
    (4) Election to forego previously taxed income. An S corporation may 
elect to forego distributions of previously taxed income. If such an 
election is made, paragraph (d)(2) of this section (relating to 
corporations with previously taxed income) does not apply to any 
distribution made during the taxable year. Thus, distributions by a 
corporation that makes the election to forego previously taxed income 
for a taxable year under this paragraph (f)(4) and does not make the 
election to distribute earnings and profits first under paragraph (f)(2) 
of this section are treated in the manner provided in section 1368(c) 
(relating to distributions by corporations with earnings and profits). 
Distributions by a corporation that makes both the election to 
distribute earnings and profits first under paragraph (f)(2) of this 
section and the election to forego previously taxed income under this 
paragraph (f)(4), are treated in the manner provided in paragraph 
(f)(2)(i) of this section.
    (5) Time and manner of making elections--(i) For earnings and 
profits. If an election is made under paragraph (f)(2) of this section 
to distribute earnings and profits first, see section 1368(e)(3) 
regarding the consent required by shareholders.
    (ii) For previously taxed income and deemed dividends. If an 
election is made to forego previously taxed income under paragraph 
(f)(4) of this section or to make a deemed dividend under paragraph 
(f)(3) of this section, consent by each ``affected shareholder,'' as 
defined in section 1368(e)(3)(B), is required.
    (iii) Corporate statement regarding elections. A corporation makes 
an election for a taxable year under Sec.  1.1368-1(f) by attaching a 
statement to a timely filed (including extensions) original or amended 
return required to be filed under section 6037 for that taxable year. In 
the statement, the corporation must identify the election it is making 
under Sec.  1.1368-1(f) and must state that each shareholder consents to 
the election. In the case of elections for taxable years beginning 
before January 1, 2003, an officer of the corporation must sign under 
penalties of perjury the statement on behalf of the corporation. In the 
case of elections for taxable years beginning after December 31, 2002, 
the statement described in this paragraph (f)(5)(iii) shall be verified 
by signing the return. A statement of election to make a deemed dividend 
under Sec.  1.1368-1(f) must include the amount of the deemed dividend 
that is distributed to each shareholder.
    (iv) Irrevocable elections. The elections under this paragraph (f) 
are irrevocable and are effective only for the taxable year for which 
they are made. In applying the preceding sentence to elections under 
this paragraph (f), an election to terminate the taxable year under 
section 1377(a)(2) or Sec.  1.1368-1(g)(2) is disregarded.
    (g) Special rule--(1) Election to terminate year under Sec.  1.1368-
1(g)(2). If an election is made under paragraph (g)(2) of this section 
to terminate the year when there is a qualifying disposition, this 
section applies as if the taxable year consisted of separate taxable 
years, the first of which ends at the close of the day on which there is 
a qualifying disposition of stock.
    (2) Election in case of a qualifying disposition--(i) In general. In 
the case of a qualifying disposition, a corporation may elect under this 
paragraph (g)(2)(i) to treat the year as if it consisted of separate 
taxable years, the first of which ends at the close of the day on which 
the qualifying disposition occurs. A qualifying disposition is--
    (A) A disposition by a shareholder of 20 percent or more of the 
outstanding stock of the corporation in one or more transactions during 
any thirty-day period during the corporation's taxable year;
    (B) A redemption treated as an exchange under section 302(a) or 
section 303(a) of 20 percent or more of the outstanding stock of the 
corporation from a shareholder in one or more transactions during any 
thirty-day period during the corporation's taxable year; or

[[Page 911]]

    (C) An issuance of an amount of stock equal to or greater than 25 
percent of the previously outstanding stock to one or more new 
shareholders during any thirty-day period during the corporation's 
taxable year.
    (ii) Effect of the election. A corporation making an election under 
paragraph (g)(2)(i) of this section must treat the taxable year as 
separate taxable years for purposes of allocating items of income and 
loss; making adjustments to the AAA, earnings and profits, and basis; 
and determining the tax effect of distributions under section 1368 (b) 
and (c). An election made under paragraph (g)(2)(i) of this section may 
be made upon the occurrence of any qualifying disposition. Dispositions 
of stock that are taken into account as part of a qualifying disposition 
are not taken into account in determining whether a subsequent 
qualifying disposition has been made. In the case of a taxable year for 
which an election is made under paragraph (g)(2)(i), for purposes of 
section 163(j), a separate section 163(j) limitation (as defined in 
Sec.  1.163(j)-1(b)(36)) applies to each separate taxable year. Any 
items necessary to determine the amount of business interest expense (as 
defined in Sec.  1.163(j)-1(b)(3)) that are deducted in each separate 
taxable year must be allocated between the two separate taxable years in 
accordance with an allocation methodology provided in this paragraph 
(g).
    (iii) Time and manner of making election. A corporation makes an 
election under Sec.  1.1368-1(g)(2)(i) for a taxable year by attaching a 
statement to a timely filed (including extensions) original or amended 
return required to be filed under section 6037 for a taxable year 
(without regard to the election under Sec.  1.1368-1(g)(2)(i)). In the 
statement, the corporation must state that it is electing for the 
taxable year under Sec.  1.1368-1(g)(2)(i) to treat the taxable year as 
if it consisted of separate taxable years. The corporation also must set 
forth facts in the statement relating to the qualifying disposition 
(e.g., sale, gift, stock issuance, or redemption), and state that each 
shareholder who held stock in the corporation during the taxable year 
(without regard to the election under Sec.  1.1368-1(g)(2)(i)) consents 
to this election. For purposes of this election, a shareholder of the 
corporation for the taxable year is a shareholder as described in 
section 1362(a)(2). A single election statement may be filed for all 
elections made under Sec.  1.1368-1(g)(2)(i) for the taxable year. An 
election made under Sec.  1.1368-1(g)(2)(i) is irrevocable. In the case 
of elections for taxable years beginning before January 1, 2003, the 
statement through which a corporation makes an election under Sec.  
1.1368-1(g)(2)(i) must be signed by an officer of the corporation under 
penalties of perjury. In the case of elections for taxable years 
beginning after December 31, 2002, the statement described in the 
preceding sentence shall be verified by signing the return.
    (iv) Coordination with election under section 1377(a)(2). If the 
event resulting in a qualifying disposition also results in a 
termination of a shareholder's entire interest as described in Sec.  
1.1377-1(b)(4), the election under this paragraph (g)(2) cannot be made. 
Rather, the election under section 1377(a)(2) and Sec.  1.1377-1(b) may 
be made. See Sec.  1.1377-1(b) (concerning the election under section 
1377(a)(2)).

[T.D. 8508, 59 FR 19, Jan. 3, 1994, as amended by T.D. 8696, 61 FR 
67455, Dec. 23, 1996; T.D. 8852, 64 FR 71650, Dec. 22, 1999; T.D. 9100, 
68 FR 70706, Dec. 19, 2003; T.D. 9300, 71 FR 71043, Dec. 8, 2006; T.D. 
9905, 85 FR 56842, Sept. 14, 2020]



Sec.  1.1368-2  Accumulated adjustments account (AAA).

    (a) Accumulated adjustments account--(1) In general. The accumulated 
adjustments account is an account of the S corporation and is not 
apportioned among shareholders. The AAA is relevant for all taxable 
years beginning on or after January 1, 1983, for which the corporation 
is an S corporation. On the first day of the first year for which the 
corporation is an S corporation, the balance of the AAA is zero. The AAA 
is increased in the manner provided in paragraph (a)(2) of this section 
and is decreased in the manner provided in paragraph (a)(3) of this 
section. For the adjustments to the AAA in the case of redemptions, 
liquidations, reorganizations, and corporate separations, see paragraph 
(d) of this section.

[[Page 912]]

    (2) Increases to the AAA. The AAA is increased for the taxable year 
of the corporation by the sum of the following items with respect to the 
corporation for the taxable year:
    (i) The items of income described in section 1366(a)(1)(A) other 
than income that is exempt from tax;
    (ii) Any nonseparately computed income determined under section 
1366(a)(1)(B); and
    (iii) The excess of the deductions for depletion over the basis of 
property subject to depletion unless the property is an oil or gas 
property the basis of which has been allocated to shareholders under 
section 613A(c)(11).
    (3) Decreases to the AAA--(i) In general. The AAA is decreased for 
the taxable year of the corporation by the sum of the following items 
with respect to the corporation for the taxable year--
    (A) The items of loss or deduction described in section 
1366(a)(1)(A);
    (B) Any nonseparately computed loss determined under section 
1366(a)(1)(B);
    (C) Any expense of the corporation not deductible in computing its 
taxable income and not properly chargeable to a capital account, other 
than--
    (1) Federal taxes attributable to any taxable year in which the 
corporation was a C corporation; and
    (2) Expenses related to income that is exempt from tax; and
    (D) The sum of the shareholders' deductions for depletion for any 
oil or gas property held by the corporation described in section 
1367(a)(2)(E).
    (ii) Extent of allowable reduction. The AAA may be decreased under 
paragraph (a)(3)(i) of this section below zero. The AAA is decreased by 
noncapital, nondeductible expenses under paragraph (a)(3)(i)(C) of this 
section even though a portion of the noncapital, nondeductible expenses 
is not taken into account by a shareholder under Sec.  1.1367-1(g) 
(relating to the elective ordering rule). The AAA is also decreased by 
the entire amount of any loss or deduction even though a portion of the 
loss or deduction is not taken into account by a shareholder under 
section 1366(d)(1) or is otherwise not currently deductible under the 
Internal Revenue Code. However, in any subsequent taxable year in which 
the loss, deduction, or noncapital, nondeductible expense is treated as 
incurred by the corporation with respect to the shareholder under 
section 1366(d)(2) or Sec.  1.1367-1(g) (or in which the loss or 
deduction is otherwise allowed to the shareholder), no further 
adjustment is made to the AAA.
    (iii) Decrease to the AAA for distributions. The AAA is decreased 
(but not below zero) by any portion of a distribution to which section 
1368 (b) or (c)(1) applies.
    (4) Ordering rules for the AAA for taxable years beginning before 
January 1, 1997. For any taxable year beginning before January 1, 1997, 
the adjustments to the AAA are made in the following order--
    (i) The AAA is increased under paragraph (a)(2) of this section 
before it is decreased under paragraph (a)(3) of this section for the 
taxable year;
    (ii) The AAA is decreased under paragraph (a)(3)(i) of this section 
before it is decreased under paragraph (a)(3) (iii) of this section;
    (iii) The AAA is decreased (but not below zero) by any portion of an 
ordinary distribution to which section 1368 (b) or (c)(1) applies; and
    (iv) The AAA is adjusted (whether negative or positive) for 
redemption distributions under paragraph (d)(1) of this section.
    (5) Ordering rules for the AAA for taxable years beginning on or 
after August 18, 1998. For any taxable year of the S corporation 
beginning on or after August 18, 1998, the adjustments to the AAA are 
made in the following order--
    (i) The AAA is increased under paragraph (a)(2) of this section 
before it is decreased under paragraph (a)(3)(i) of this section for the 
taxable year;
    (ii) The AAA is decreased under paragraph (a)(3)(i) of this section 
(without taking into account any net negative adjustment (as defined in 
section 1368(e)(1)(C)(ii)) before it is decreased under paragraph 
(a)(3)(iii) of this section;
    (iii) The AAA is decreased (but not below zero) by any portion of an 
ordinary distribution to which section 1368(b) or (c)(1) applies;
    (iv) The AAA is decreased by any net negative adjustment (as defined 
in section 1368(e)(1)(C)(ii)); and

[[Page 913]]

    (v) The AAA is adjusted (whether negative or positive) for 
redemption distributions under paragraph (d)(1) of this section.
    (b) Distributions in excess of the AAA--(1) In general. A portion of 
the AAA (determined under paragraph (b)(2) of this section) is allocated 
to each of the distributions made for the taxable year if--
    (i) An S corporation makes more than one distribution of property 
with respect to its stock during the taxable year of the corporation 
(including an S short year as defined under section 1362(e)(1)(A));
    (ii) The AAA has a positive balance at the close of the year; and
    (iii) The sum of the distributions made during the corporation's 
taxable year exceeds the balance of the AAA at the close of the year.
    (2) Amount of the AAA allocated to each distribution. The amount of 
the AAA allocated to each distribution is determined by multiplying the 
balance of the AAA at the close of the current taxable year by a 
fraction, the numerator of which is the amount of the distribution and 
the denominator of which is the amount of all distributions made during 
the taxable year. For purposes of this paragraph (b)(2), the term all 
distributions made during the taxable year does not include any 
distribution treated as from earnings and profits or previously taxed 
income pursuant to an election made under section 1368(e)(3) and Sec.  
1.1368-1(f)(2). See paragraph (d)(1) of this section for rules relating 
to the adjustments to the AAA for redemptions and distributions in the 
year of a redemption.
    (c) Distribution of money and loss property--(1) In general. The 
amount of the AAA allocated to a distribution under this section must be 
further allocated (under paragraph (c)(2) of this section) if the 
distribution--
    (i) Consists of property the adjusted basis of which exceeds its 
fair market value on the date of the distribution and money;
    (ii) Is a distribution to which Sec.  1.1368-1(d)(1) applies; and
    (iii) Exceeds the amount of the corporation's AAA properly allocable 
to that distribution.
    (2) Allocating the AAA to loss property. The amount of the AAA 
allocated to the property other than money is equal to the amount of the 
AAA allocated to the distribution multiplied by a fraction, the 
numerator of which is the fair market value of the property other than 
money on the date of distribution and the denominator of which is the 
amount of the distribution. The amount of the AAA allocated to the money 
is equal to the amount of the AAA allocated to the distribution reduced 
by the amount of the AAA allocated to the property other than money.
    (d) Adjustment in the case of redemptions, liquidations, 
reorganizations, and divisions--(1) Redemptions--(i) General rule. In 
the case of a redemption distribution by an S corporation that is 
treated as an exchange under section 302(a) or section 303(a) (a 
redemption distribution), the AAA of the corporation is adjusted in an 
amount equal to the ratable share of the corporation's AAA (whether 
negative or positive) attributable to the redeemed stock as of the date 
of the redemption.
    (ii) Special rule for years in which a corporation makes both 
ordinary and redemption distributions. In any year in which a 
corporation makes one or more distributions to which section 1368(a) 
applies (ordinary distributions) and makes one or more redemption 
distributions, the AAA of the corporation is adjusted first for any 
ordinary distributions and then for any redemption distributions.
    (iii) Adjustments to earnings and profits. Earnings and profits are 
adjusted under section 312 independently of any adjustments made to the 
AAA.
    (2) Liquidations and reorganizations. An S corporation acquiring the 
assets of another S corporation in a transaction to which section 381(a) 
applies will succeed to and merge its AAA (whether positive or negative) 
with the AAA (whether positive or negative) of the distributor or 
transferor S corporation as of the close of the date of distribution or 
transfer. Thus, the AAA of the acquiring corporation after the 
transaction is the sum of the AAAs of the corporations prior to the 
transaction.

[[Page 914]]

    (3) Corporate separations to which section 368(a)(l)(D) applies. If 
an S corporation with accumulated earnings and profits transfers a part 
of its assets constituting an active trade or business to another 
corporation in a transaction to which section 368(a)(l)(D) applies, and 
immediately thereafter the stock and securities of the controlled 
corporation are distributed in a distribution or exchange to which 
section 355 (or so much of section 356 as relates to section 355) 
applies, the AAA of the distributing corporation immediately before the 
transaction is allocated between the distributing corporation and the 
controlled corporation in a manner similar to the manner in which the 
earnings and profits of the distributing corporation are allocated under 
section 312 (h). See Sec.  1.312-10(a).
    (e) Election to terminate year under section 1377(a)(2) or Sec.  
1.1368-1(g)(2). If an election is made under section 1377(a)(2) (to 
terminate the year in the case of termination of a shareholder's 
interest) or Sec.  1.1368-1(g)(2) (to terminate the year in the case of 
a qualifying disposition), this section applies as if the taxable year 
consisted of separate taxable years, the first of which ends at the 
close of the day on which the shareholder terminated his or her interest 
in the corporation or makes a substantial disposition of stock, 
whichever the case may be.

[T.D. 8508, 59 FR 20, Jan. 3, 1994, as amended by T.D. 8852, 64 FR 
71650, Dec. 22, 1999; T.D. 8869, 65 FR 3855, Jan. 25, 2000]



Sec.  1.1368-3  Examples.

    The principles of Sec. Sec.  1.1368-1 and 1.1368-2 are illustrated 
by the examples below. In each example Corporation S is a calendar year 
corporation:

    Example 1. Distributions by S corporations without C corporation 
earnings and profits for taxable years beginning before January 1, 1997. 
(i) Corporation S, an S corporation, has no earnings and profits as of 
January 1, 1996, the first day of its 1996 taxable year. S's sole 
shareholder, A, holds 10 shares of S stock with a basis of $1 per share 
as of that date. On March 1, 1996, S makes a distribution of $38 to A. 
For S's 1996 taxable year, A's pro rata share of the amount of the items 
described in section 1367(a)(1) (relating to increases in basis of 
stock) is $50 and A's pro rata share of the amount of the items 
described in section 1367(a)(2) (B) through (D) (relating to decreases 
in basis of stock for items other than distributions) is $26.
    (ii) Under section 1368(d)(1) and Sec.  1.1368-1(e)(1), the 
adjustments to the bases of A's stock in S described in section 1367 are 
made before the distribution rules of section 1368 are applied. Thus, 
A's basis per share in the stock is $3.40 ($1 + [($50-$26) / 10 shares]) 
before taking into account the distribution. Under section 
1367(a)(2)(A), the basis of A's stock is decreased by distributions to A 
that are not includible in A's income. Under Sec.  1.1367-1(c)(3), the 
amount of the distribution that is attributable to each share of A's 
stock is $3.80 ($38 distribution / 10 shares). However, A only has a 
basis of $3.40 in each share, and basis may not be reduced below zero. 
Therefore, the basis of each share of his stock is reduced by $3.40 to 
zero, and the remaining $4.00 of the distribution ([$3.80-$3.40] x 10 
shares) is treated as gain from the sale or exchange of property. As of 
January 1, 1997, A has a basis of $0 in his shares of S stock.
    Example 2. Distributions by S corporations without earnings and 
profits for taxable years beginning on or after August 18, 1998. (i) 
Corporation S, an S corporation, has no earnings and profits as of 
January 1, 2001, the first day of its 2001 taxable year. S's sole 
shareholder, A, holds 10 shares of S stock with a basis of $1 per share 
as of that date. On March 1, 2001, S makes a distribution of $38 to A. 
The balance in Corporation S's AAA is $100. For S's 2001 taxable year, 
A's pro rata share of the amount of the items described in section 
1367(a)(1) (relating to increases in basis of stock) is $50. A's pro 
rata share of the amount of the items described in sections 
1367(a)(2)(B) through (D) (relating to decreases in basis of stock for 
items other than distributions) is $26, $20 of which is attributable to 
items described in section 1367(a)(2)(B) and (C) and $6 of which is 
attributable to items described in section 1367(a)(2)(D) (relating to 
decreases in basis attributable to noncapital, nondeductible expenses).
    (ii) Under section 1368(d)(1) and Sec.  1.1368-1(e)(1) and (2), the 
adjustments to the basis of A's stock in S described in sections 
1367(a)(1) are made before the distribution rules of section 1368 are 
applied. Thus, A's basis per share in the stock is $6.00 ($1 + [$50/10]) 
before taking into account the distribution. Under section 
1367(a)(2)(A), the basis of A's stock is decreased by distributions to A 
that are not includible in A's income. Under Sec.  1.1367-1(c)(3), the 
amount of the distribution that is attributable to each share of A's 
stock is $3.80 ($38 distribution/10 shares). Thus, A's basis per share 
in the stock is $2.20 ($6.00-$3.80), after taking into account the 
distribution. Under section 1367(a)(2)(D), the basis of each share of 
A's stock in S after taking into account the distribution, $2.20, is

[[Page 915]]

decreased by $.60 ($6 noncapital, nondeductible expenses/10). Thus, A's 
basis per share after taking into account the nondeductible, noncapital 
expenses is $1.60. Under section 1367(a)(2)(B) and (C), A's basis per 
share is further decreased by $2 ($20 items described in section 
1367(a)(2)(B) and (C)/10 shares). However, basis may not be reduced 
below zero. Therefore, the basis of each share of A's stock is reduced 
to zero. As of January 1, 2002, A has a basis of $0 in his shares of S 
stock. Pursuant to section 1366(d)(2), the $.40 of loss in excess of A's 
basis in each of his shares of S stock is treated as incurred by the 
corporation in the succeeding taxable year with respect to A.
    Example 3. Distributions by S corporations with C corporation 
earnings and profits for taxable years beginning before January 1, 1997. 
(i) Corporation S properly elects to be an S corporation beginning 
January 1, 1997, and as of that date has accumulated earnings and 
profits of $30. B, an individual and sole shareholder of Corporation S, 
has 10 shares of S stock with a basis of $12 per share. In addition, B 
lends $30 to S evidenced by a demand note.
    (ii) During 1997, S has a nonseparately computed loss of $150. S 
makes no distributions to B during 1997. Under section 1366(d)(1), B is 
allowed a loss equal to $150, the amount equal to the sum of B's bases 
in his shares of stock and his basis in the debt. Under section 1367, 
the loss reduces B's adjusted basis in his stock and debt to $0. Under 
Sec.  1.1368-2(a)(3), S's AAA as of December 31, 1997, has a deficit of 
$150 as a result of S's loss for the year.
    (iii) For 1998, S has $220 of separately stated income and 
distributes $110 to B. The balance in the AAA (negative $150 from 1997) 
is increased by $220 for S's income for the year and decreased to $0 for 
the portion of the distribution that is treated as being from the AAA 
($70). Under Sec.  1.1367-2(c), B's net increase is $150, determined by 
reducing the $220 of income by the $70 of the distribution not 
includible in income by B. Thus, B's basis in the debt is fully restored 
to $30, and B's basis in S stock (before accounting for the 
distribution) is increased from zero to $19 per share ([$220-$30 applied 
to the debt] / 10). Thirty dollars of the distribution is considered a 
dividend to the extent of S's $30 of earnings and profits, and the 
remaining $10 of the distribution reduces B's basis in the S stock. 
Thus, B's basis in the S stock as of December 31, 1998, is $11 per share 
($19-[$70 AAA distribution / 10]-[10 distribution treated as a reduction 
in basis / 10]). The balance in the AAA is $0, S's earnings and profits 
are $0, and B's basis in the loan is $30.
    Example 4. Distributions by S corporations with earnings and profits 
and no net negative adjustment for taxable years beginning on or after 
August 18, 1998. (i) Corporation S, an S corporation, has accumulated 
earnings and profits of $1,000 and a balance in the AAA of $2,000 on 
January 1, 2001. S's sole shareholder B holds 100 shares of stock with a 
basis of $20 per share as of January 1, 2001. On April 1, 2001, S makes 
a distribution of $1,500 to B. B's pro rata share of the income earned 
by S during 2001 is $2,000 and B's pro rata share of S's losses is 
$1,500. For the taxable year ending December 31, 2001, S does not have a 
net negative adjustment as defined in section 1368(e)(1)(C). S does not 
make the election under section 1368(e)(3) and Sec.  1.1368-1(f)(2) to 
distribute its earnings and profits before its AAA.
    (ii) The AAA is increased from $2,000 to $4,000 for the $2,000 of 
income earned during the 2001 taxable year. The AAA is decreased from 
$4,000 to $2,500 for the $1,500 of losses. The AAA is decreased from 
$2,500 to $1,000 for the portion of the distribution ($1,500) to B that 
does not exceed the AAA.
    (iii) As of December 31, 2001, B's basis in his stock is $10 ($20 + 
$20 ($2,000 income/100 shares)--$15 ($1,500 distribution/100 shares)--
$15 ($1,500 loss/100 shares).
    Example 5. Distributions by S corporations with earnings and profits 
and net negative adjustment for taxable years beginning on or after 
August 18, 1998. (i) Corporation S, an S corporation, has accumulated 
earnings and profits of $1,000 and a balance in the AAA of $2,000 on 
January 1, 2001. S's sole shareholder B holds 100 shares of stock with a 
basis of $20 per share as of January 1, 2001. On April 1, 2001, S makes 
a distribution of $2,000 to B. B's pro rata share of the income earned 
by S during 2001 is $2,000 and B's pro rata share of S's losses is 
$3,500. For the taxable year ending December 31, 2001, S has a net 
negative adjustment as defined in section 1368(e)(1)(C). S does not make 
the election under section 1368(e)(3) and Sec.  1.1368-1(f)(2) to 
distribute its earnings and profits before its AAA.
    (ii) The AAA is increased from $2,000 to $4,000 for the $2,000 of 
income earned during the 2001 taxable year. Because under section 
1368(e)(1)(C)(ii) and Sec.  1.1368-2(a)(ii), the net negative adjustment 
is not taken into account, the AAA is decreased from $4,000 to $2,000 
for the portion of the losses ($2,000) that does not exceed the income 
earned during the 2001 taxable year. The AAA is reduced from $2,000 to 
zero for the portion of the distribution to B ($2,000) that does not 
exceed the AAA. The AAA is decreased from zero to a negative $1,500 for 
the portion of the $3,500 of loss that exceeds the $2,000 of income 
earned during the 2001 taxable year.
    (iii) Under Sec.  1.1367-1(c)(1), the basis of a shareholder's share 
in an S corporation stock may not be reduced below zero. Accordingly, as 
of December 31, 2001, B's basis per share in his stock is zero ($20 + 
$20 income--$20 distribution--$35 loss). Pursuant to section 1366(d)(2), 
the $15 of loss in excess of B's basis in each of his shares of S stock 
is treated as incurred by the corporation in

[[Page 916]]

the succeeding taxable year with respect to B.
    Example 6. Election in case of disposition of substantial amount of 
stock. (i) Corporation S, an S corporation, has earnings and profits of 
$3,000 and a balance in the AAA of $1,000 on January 1, 1997. C, an 
individual and the sole shareholder of Corporation S, has 100 shares of 
S stock with a basis of $10 per share. On July 3, 1997, C sells 50 
shares of his S stock to D, an individual, for $250. For 1997, S has 
taxable income of $1,000, of which $500 was earned on or before July 3, 
1997, and $500 earned after July 3, 1997. During its 1997 taxable year, 
S distributes $1,000 to C on February 1 and $1,000 to each of C and D on 
August 1. S does not make the election under section 1368(e)(3) and 
Sec.  1.1368-1(f)(2) to distribute its earnings and profits before its 
AAA. S makes the election under Sec.  1.1368-1(g)(2) to treat its 
taxable year as if it consisted of separate taxable years, the first of 
which ends at the close of July 3, 1997, the date of the qualifying 
disposition.
    (ii) Under section Sec.  1.1368-1(g)(2), for the period ending on 
July 3, 1997, S's AAA is $500 ($1,000 (AAA as of January 1, 1997) + $500 
(income earned from January 1, 1997 through July 3, 1997)-$1,000 
(distribution made on February 1, 1997)). C's bases in his shares of 
stock is decreased to $5 per share ($10 (original basis) + $5 (increase 
per share for income)-$10 (decrease per share for distribution)).
    (iii) The AAA is adjusted at the end of the taxable year for the 
period July 4 through December 31, 1997. It is increased from $500 (AAA 
as of the close of July 3, 1997) to $1,000 for the income earned during 
this period and is decreased by $1,000, the portion of the distribution 
($2,000 in total) made to C and D on August 1 that does not exceed the 
AAA. The $1,000 portion of the distribution that remains after the AAA 
is reduced to zero is attributable to earnings and profits. Therefore C 
and D each have a dividend of $500, which does not affect their basis or 
S's AAA. The earnings and profits account is reduced from $3,000 to 
$2,000.
    (iv) As of December 31, 1997, C and D have bases in their shares of 
stock of zero ($5 (basis as of July 4) + $5 ($500 income/100 shares)-$10 
($1,000 distribution/100 shares)). C and D each will report $500 as 
dividend income, which does not affect their basis or S's AAA.
    Example 7. Election to distribute earnings and profits first. (i) 
Corporation S has been a calendar year C corporation since 1975. For 
1982, S elects for the first time to be taxed under subchapter S, and 
during 1982 has $60 of earnings and profits. As of December 31, 1995, S 
has an AAA of $10 and earnings and profits of $160, consisting of $100 
of subchapter C earnings and profits and $60 of subchapter S earnings 
and profits. For 1996, S has $200 of taxable income and the AAA is 
increased to $210 (before taking distributions into account). During 
1996, S distributes $240 to its shareholders. With its 1996 tax return, 
S properly elects under section 1368(e)(3) and Sec.  1.1368-1(f)(2) to 
distribute its earnings and profits before its AAA.
    (ii) Because S elected to distribute its earnings and profits before 
its AAA, the first $100 of the distribution is characterized as a 
distribution from subchapter C earnings and profits; the next $60 of the 
distribution is characterized as a distribution from subchapter S 
earnings and profits. Because $160 of the distribution is from earnings 
and profits, the shareholders of S have a $160 dividend. The remaining 
$80 of the distribution is a distribution from S's AAA and is treated by 
the shareholders as a return of capital or gain from the sale or 
exchange of property, as appropriate, under Sec.  1.1368-1(d)(1). S's 
AAA, as of December 31, 1996, equals $130 ($210-$80).
    Example 8. Distributions in excess of the AAA. (i) On January 1, 
1995, Corporation S has $40 of earnings and profits and a balance in the 
AAA of $100. S has two shareholders, E and F, each of whom own 50 shares 
of S's stock. For 1995, S has taxable income of $50, which increases the 
AAA to $150 as of December 31, 1995 (before taking into account 
distributions made during 1995). On February 1, 1995, S distributes $60 
to each shareholder. On September 1, 1995, S distributes $30 to each 
shareholder. S does not make the election under section 1368(e)(3) and 
Sec.  1.1368-1(f)(2) to distribute its earnings and profits before its 
AAA.
    (ii) The sum of the distributions exceed S's AAA. Therefore, under 
Sec.  1.1368-2(b), a portion of S's $150 balance in the AAA as of 
December 31, 1995, is allocated to each of the February 1 and September 
1 distributions based on the respective sizes of the distributions. 
Accordingly, S must allocate $100 ($150 (AAA) x ($120 (February 1 
distribution)/$180 (the sum of the distributions))) of the AAA to the 
February 1 distribution, and $50 ($150 x ($60/$180)) to the September 1 
distribution. The portions of the distributions to which the AAA is 
allocated are treated by the shareholder as a return of capital or gain 
from the sale or exchange of property, as appropriate. The remainder of 
the two distributions is treated as a dividend to the extent that it 
does not exceed S's earnings and profits. E and F must each report $10 
of dividend income for the February 1 distribution. For the September 1 
distribution, E and F must each report $5 of dividend income.
    Example 9. Ordinary and redemption distributions in the same taxable 
year. (i) On January 1, 1995, Corporation S, an S corporation, has $20 
of earnings and profits and a balance in the AAA of $10. S has two 
shareholders, G and H, each of whom owns 50 shares of S's stock. For 
1995, S has taxable income of $16,

[[Page 917]]

which increases the AAA to $26 as of December 31, 1995 (before taking 
into account distributions made during 1995). On February 1, 1995, S 
distributes $10 to each shareholder. On December 31, 1995, S redeems for 
$13 all of shareholder G's stock in a redemption that is treated as a 
sale or exchange under section 302(a).
    (ii) The sum of the ordinary distributions does not exceed S's AAA. 
Therefore, S must reduce the $26 balance in the AAA by $20 for the 
February 1 ordinary distribution. The portions of the distribution by 
which the AAA is reduced are treated by the shareholders as a return of 
capital or gain from the sale or exchange of property. S must adjust the 
remaining AAA, $6, in an amount equal to the ratable share of the 
remaining AAA attributable to the redeemed stock, or $3 (50% x $6).
    (iii) S also must adjust the earnings and profits of $20 in an 
amount equal to the ratable share of the earnings and profits 
attributable to the redeemed stock. Therefore, S adjusts the earnings 
and profits by $10 (50% x $20), the ratable share of the earnings and 
profits attributable to the redeemed stock.

[T.D. 8508, 59 FR 22, Jan. 3, 1994; 59 FR 10675, Mar. 7, 1994, as 
amended by T.D. 8852, 64 FR 71650, Dec. 22, 1999]



Sec.  1.1368-4  Effective date and transition rule.

    Except for Sec. Sec.  1.1368-1(e)(2), 1.1368-2(a)(5), and 1.1368-3 
Example 2, Example 4, and Example 5, Sec. Sec.  1.1368-1, 1.1368-2, and 
1.1368-3 apply to taxable years of the corporation beginning on or after 
January 1, 1994. Section 1.1368-1(e)(2), Sec.  1.1368-2(a)(5), and Sec.  
1.1368-3 Example 2, Example 4, and Example 5 apply only to taxable years 
of the corporation beginning on or after August 18, 1998. For taxable 
years beginning before January 1, 1994, and taxable years beginning on 
or after January 1, 1997, and before August 18, 1998, the treatment of 
distributions by an S corporation to its shareholders must be determined 
in a reasonable manner, taking into account the statute and legislative 
history. Except with regard to the deemed dividend rule under Sec.  
1.1368-1(f)(3), Sec.  1.1368-1(e)(2), Sec.  1.1368-2(a)(5), and Sec.  
1.1368-3 Example 2, Example 4, and Example 5, return positions 
consistent with Sec. Sec.  1.1368-1, 1.1368-2, and 1.1368-3 are 
reasonable for taxable years beginning before January 1, 1994. Return 
positions consistent with Sec. Sec.  1.1368-1(e)(2), 1.1368-2(a)(5), and 
1.1368-3 Example 2, Example 4, and Example 5 are reasonable for taxable 
years beginning on or after January 1, 1997, and before August 18, 1998.

[T.D. 8852, 64 FR 71651, Dec. 22, 1999]



Sec.  1.1371-1  Distributions of money by an eligible terminated S corporation.

    (a) Scope and definitions--(1) Scope. This section provides rules 
relating to qualified distributions and distributions to which section 
301 of the Internal Revenue Code (Code) applies during each taxable year 
of the ETSC period, including the taxable year in which the ETSC period 
ends. If an ETSC does not make any qualified distributions during a 
taxable year, then no distribution by the ETSC is governed by section 
1371(f) of the Code or this section. Paragraph (a)(2) of this section 
contains definitions that apply for purposes of this section. Paragraph 
(b) of this section contains rules regarding the characterization of a 
qualified distribution. Paragraph (c) of this section contains rules 
regarding the characterization of any excess qualified distribution and 
non-qualified distribution during each taxable year of the ETSC period, 
including the taxable year in which the ETSC period ends. Paragraph (d) 
of this section contains examples illustrating the rules of this 
section. Paragraph (e) of this section contains the applicability date 
of this section.
    (2) Definitions. The following definitions apply for purposes of 
this section--
    (i) AAA. The term AAA means the accumulated adjustments account, 
within the meaning of section 1368(e)(1)(A) of the Code and Sec.  
1.1368-2(a)(1).
    (ii) AAA ratio. Except as provided in this paragraph or paragraph 
(b)(3)(iv) of this section, the term AAA ratio means the fraction of 
which the numerator is historical AAA and the denominator is the sum of 
historical AAA and historical AE&P. Notwithstanding the preceding 
sentence, if the AE&P of the ETSC is less than or equal to zero as of 
the beginning of a taxable year, then the AAA ratio is one for such year 
and for all subsequent taxable years of the ETSC period.
    (iii) AE&P. The term AE&P means earnings and profits described in 
section 316(a)(1) of the Code.

[[Page 918]]

    (iv) AE&P ratio. Except as provided in this paragraph or paragraph 
(b)(3)(iv) of this section, the term AE&P ratio means the fraction of 
which the numerator is historical AE&P, and the denominator is the sum 
of historical AAA and historical AE&P. Notwithstanding the preceding 
sentence, if the AE&P of the ETSC is less than or equal to zero as of 
the beginning of a taxable year, then the AE&P ratio is zero for such 
year and all subsequent taxable years of the ETSC period.
    (v) CE&P. The term CE&P means earnings and profits that are 
described in section 316(a)(2).
    (vi) ETSC. The term ETSC means an eligible terminated S corporation, 
within the meaning of section 481(d) of the Code and Sec.  1.481-5.
    (vii) ETSC period. In general, the term ETSC period means any 
taxable year, or portion thereof, of an ETSC beginning on the first day 
after the post-termination period within the meaning of section 
1377(b)(1)(A) of the Code and ending on the date on which the ETSC's AAA 
balance is zero. Additionally, an ETSC does not have an ETSC period if 
the ETSC's AAA balance is not greater than zero at the end of its post-
termination transition period. See Sec.  1.1371-2 for rules governing 
the impact of a post-termination period, within the meaning of section 
1377(b)(1)(B), on the ETSC period.
    (viii) Excess qualified distribution. The term excess qualified 
distribution means the portion of a qualified distribution that is not 
characterized pursuant to paragraph (b)(2) or (3) of this section.
    (ix) Historical AAA. The term historical AAA means the AAA of the 
ETSC as of the beginning of the day on which the revocation of an 
election under section 1362(a) of the Code is effective pursuant to 
section 1362(d)(1).
    (x) Historical AE&P. The term historical AE&P means the AE&P of the 
ETSC as of the beginning of the day on which the revocation of an 
election under section 1362(a) is effective pursuant to section 
1362(d)(1). For purposes of the preceding sentence, if the ETSC's 
historical AE&P is less than zero, then the historical AE&P is treated 
as zero.
    (xi) Non-qualified distribution. The term non-qualified distribution 
means a distribution that is not a qualified distribution and to which 
section 301 applies.
    (xii) Qualified distribution. The term qualified distribution means 
a distribution of money by an ETSC during the ETSC period to which, 
absent the application of section 1371(f) and this section, section 301 
would apply. However, if paragraph (d)(2)(i) of this section applies to 
the ETSC, then a qualified distribution to a non-legacy shareholder is 
treated as a non-qualified distribution.
    (b) Characterization of qualified distribution--(1) In general. 
Paragraph (b)(2) of this section provides rules regarding the 
determination of the amount of a qualified distribution that is sourced 
from AAA and the corollary effects of such a characterization. Paragraph 
(b)(3) of this section provides rules regarding the determination of the 
amount of a qualified distribution that is sourced from AE&P and the 
corollary effects of such a characterization. Paragraph (b)(4) of this 
section provides rules regarding the characterization of an excess 
qualified distribution as a separate qualified distribution. The rules 
in paragraphs (b)(2) through (4) of this section are applied before the 
application of paragraph (c) of this section.
    (2) Distribution of AAA--(i) Amount. The portion of a qualified 
distribution that is sourced from an ETSC's AAA is equal to the lesser 
of:
    (A) The product of the qualified distribution and the AAA ratio; and
    (B) The ETSC's AAA immediately before the qualified distribution.
    (ii) Reduction or elimination of ETSC's AAA. The ETSC's AAA is 
reduced by the amount of the distribution described in paragraph 
(b)(2)(i) of this section. If, with respect to a qualified distribution, 
the amount described in paragraph (b)(2)(i)(A) of this section equals or 
exceeds the amount described in paragraph (b)(2)(i)(B) of this section, 
then the rules in this paragraph (b) do not apply to any subsequent 
distributions by the ETSC. Instead, the subsequent distributions are 
treated in the manner provided in paragraph (c) of this section.
    (iii) Effect on the shareholder. The amount described in paragraph 
(b)(2)(i)

[[Page 919]]

of this section is applied against and reduces the shareholder's 
adjusted basis of the shares of stock with respect to which the 
distribution is made under the principles of section 301(c)(2). If the 
application of the amount described in paragraph (b)(2)(i) of this 
section would result in a reduction of basis that exceeds the 
shareholder's adjusted basis of any share of stock with respect to which 
the distribution is made, such excess is treated as gain from the sale 
or exchange of property. The reduction of the shareholder's basis 
described in this paragraph with respect to a qualified distribution 
occurs prior to the application of paragraph (c) of this section to the 
excess qualified distribution, if any, with respect to such qualified 
distribution.
    (3) Distribution of AE&P--(i) Amount. This paragraph (b)(3) applies 
if an ETSC's AE&P ratio is greater than zero. If this paragraph (b)(3) 
applies, the portion of a qualified distribution that is sourced from 
the ETSC's AE&P is equal to the lesser of:
    (A) The product of the qualified distribution and the AE&P ratio; 
and
    (B) The ETSC's AE&P immediately before the qualified distribution. 
For purposes of the preceding sentence, if the ETSC's AE&P immediately 
before the qualified distribution is less than zero, then the ETSC's 
AE&P is treated as zero.
    (ii) Effect on ETSC's AE&P. The ETSC's AE&P is reduced, as described 
in section 312(a)(1), by the amount of the distribution described in 
paragraph (b)(3)(i) of this section. The AE&P reduction described in 
this paragraph occurs prior to the application of paragraph (c) of this 
section, even if a distribution to which paragraph (c) of this section 
applies (regarding excess qualified distributions and non-qualified 
distributions) occurs earlier in time than the qualified distribution to 
which this paragraph applies.
    (iii) Effect on the shareholder. The amount of the qualified 
distribution that is sourced from the ETSC's AE&P described in paragraph 
(b)(3)(i) of this section is included in the gross income of the 
shareholder as a dividend under section 301(c)(1).
    (iv) Adjustment to the AAA ratio and the AE&P ratio. After the 
application of paragraph (b)(3)(ii) of this section, if the ETSC's AE&P 
is zero and the ETSC's AAA is greater than zero, then the ETSC's AAA 
ratio is one and the ETSC's AE&P ratio is zero for all subsequent 
qualified distributions during:
    (A) That taxable year; and
    (B) All subsequent taxable years of the ETSC period.
    (4) Excess qualified distribution treated as a separate qualified 
distribution--(i) In general. After the application of paragraph 
(b)(2)(ii) of this section with respect to a qualified distribution, if 
the ETSC has any remaining AAA, then any amount of excess qualified 
distribution, with respect to such qualified distribution, is treated as 
a separate qualified distribution and is analyzed pursuant to paragraph 
(b) of this section.
    (ii) No change in characterization of previously characterized 
portion of qualified distribution. Paragraph (b)(4)(i) will not change 
the characterization of any portion of a qualified distribution that was 
previously characterized pursuant to paragraphs (b)(2) and (3) of this 
section and will reflect the application of paragraphs (b)(2) and (3) of 
this section to the portion of the qualified distribution previously 
characterized.
    (c) Characterization of excess qualified distribution and non-
qualified distributions. After the application of paragraph (b), the 
excess qualified distributions, if any, and non-qualified distributions, 
if any, are treated in the manner provided in sections 301(c) and 316.
    (d) Examples. Paragraphs (d)(1) through (5) of this section 
(Examples 1 through 5) illustrate the rules of this section. For 
purposes of paragraphs (d)(1) through (5) of this section (Examples 1 
through 5), X is a calendar year S corporation with a single share of 
stock outstanding. A, an individual, purchased its share of X stock 
prior to December 22, 2017, and, except as otherwise indicated, never 
contributed any amounts to X's capital. A remained the sole shareholder 
of X when X made a valid revocation on March 15, 2018, pursuant to 
section 1362(d)(1) and Sec. Sec.  1.1362-2 and 1.1362-6, of its S 
election and when that revocation became effective on January 1, 2018. X 
qualified as an ETSC pursuant to Sec.  1.481-5(b) and its

[[Page 920]]

ETSC period began on January 1, 2019. Additionally, X did not make any 
distributions during its post-termination transition period, within the 
meaning of section 1377(b)(1)(A). Furthermore, A remains the sole 
shareholder of X at the time of the distribution(s) described.
    (1) Example 1: Historical AE&P is zero--(i) Facts. At the beginning 
of January 1, 2018, X had AAA of $100 and AE&P of $0. During 2018, X had 
$300 of CE&P and made no distributions. At the beginning of January 1, 
2019, X has AAA of $100 and AE&P of $300, and A's adjusted basis in its 
share of X stock is $460. During 2019, the only distribution that X 
makes is a $60 distribution of money to A on December 27. X's CE&P 
during 2019 is $150, without diminution by reason of any distributions 
made during the taxable year.
    (ii) Analysis--(A) Calculation of AAA ratio and AE&P ratio. Pursuant 
to paragraphs (a)(2)(ix) and (x) of this section, respectively, X's 
historical AAA and X's historical AE&P are determined as of the 
beginning of January 1, 2018, the beginning of the day on which the 
revocation of X's election under section 1362(a) is effective pursuant 
to section 1362(d)(1). Accordingly, X's historical AAA is $100 and X's 
historical AE&P is $0. Therefore, X's AAA ratio is 1 ($100/($100 + $0)), 
and X's AE&P ratio is zero ($0/($100 + $0)).
    (B) Characterization of distribution. Pursuant to paragraph 
(a)(2)(xii) of this section, the $60 distribution on December 27, 2019, 
is a qualified distribution because it is a distribution of money by an 
ETSC during the ETSC period to which section 301 would apply absent the 
application of section 1371(f) and this section.
    (C) Analysis of qualified distribution--(1) Distribution of AAA. 
Pursuant to paragraph (b)(2)(i) of this section, the portion of the 
qualified distribution that is sourced from AAA is equal to the lesser 
of: The product of the qualified distribution and the AAA ratio ($60 x 
1, or $60), and X's AAA immediately before the qualified distribution 
($100). Therefore, $60 is sourced from AAA. Pursuant to paragraph 
(b)(2)(ii) of this section, after the distribution, X's AAA is reduced 
by $60 to $40. Pursuant to paragraph (b)(2)(iii) of this section, A's 
basis in its X stock is reduced by $60 to $400.
    (2) Distribution of AE&P. Pursuant to paragraph (b)(3)(i) of this 
section, the portion of the distribution that is sourced from AE&P is 
equal to the lesser of: The product of the qualified distribution and 
the AE&P ratio ($60 x 0, or $0), and X's AE&P immediately before the 
qualified distribution ($300). Therefore, $0 is sourced from AE&P.
    (2) Example 2: Qualified distributions with both historical AAA and 
historical AE&P--(i) Facts. At the beginning of January 1, 2018, X had 
AAA of $200 and AE&P of $100. During 2018, X had $0 of CE&P and made no 
distributions. At the beginning of January 1, 2019, X has AAA of $200 
and AE&P of $100, and A's adjusted basis in its share of X stock is 
$500. During 2019, X makes a $90 distribution of money on February 9 and 
a $150 distribution of money on June 5. X's CE&P during 2019 is $500, 
without diminution by reason of any distributions made during the 
taxable year.
    (ii) Analysis--(A) Calculation of AAA ratio and AE&P ratio. Pursuant 
to paragraphs (a)(2)(ix) and (x) of this section, respectively, X's 
historical AAA and X's historical AE&P are determined as of the 
beginning of January 1, 2018, the beginning of the day on which the 
revocation of X's election under section 1362(a) is effective pursuant 
to section 1362(d)(1). Accordingly, X's historical AAA is $200 and X's 
historical AE&P is $100. Therefore, X's AAA ratio is 0.67 ($200/($200 + 
$100)), and X's AE&P ratio is 0.33 ($100/($200 + $100)).
    (B) Characterization of distributions. Pursuant to paragraph 
(a)(2)(xii) of this section, the $90 distribution on February 9, 2019, 
and the $150 distribution on June 5, 2019, are both qualified 
distributions because they are distributions of money by an ETSC during 
the ETSC period to which section 301 would apply absent the application 
of section 1371(f) and this section.
    (C) Analysis of qualified distributions--(1) February 9, 2019 
distribution--(i) Distribution of AAA. Pursuant to paragraph (b)(2)(i) 
of this section, the portion of the qualified distribution that is 
sourced from AAA is equal to the lesser of: The product of the qualified 
distribution and the AAA ratio ($90 x 0.67, or $60), and X's AAA 
immediately

[[Page 921]]

before the qualified distribution ($200). Therefore, $60 is sourced from 
AAA. Pursuant to paragraph (b)(2)(ii) of this section, after the 
distribution, X's AAA is reduced by $60 to $140. Pursuant to paragraph 
(b)(2)(iii) of this section, A's basis in its X stock is reduced by $60 
to $440.
    (ii) Distribution of AE&P. Pursuant to paragraph (b)(3)(i) of this 
section, the portion of the distribution that is sourced from AE&P is 
equal to the lesser of: the product of the qualified distribution and 
the AE&P ratio ($90 x 0.33, or $30), and X's AE&P immediately before the 
qualified distribution ($100). Therefore, $30 is sourced from AE&P. 
Pursuant to paragraph (b)(3)(ii) of this section, after the 
distribution, X's AE&P is reduced by $30 to $70. Pursuant to paragraph 
(b)(3)(iii) of this section, the $30 distribution is characterized as a 
dividend.
    (2) June 5, 2019 distribution--(i) Distribution of AAA. Pursuant to 
paragraph (b)(2)(i) of this section, the portion of the qualified 
distribution that is sourced from AAA is equal to the lesser of: The 
product of the qualified distribution and the AAA ratio ($150 x 0.67, or 
$100), and X's AAA immediately before the qualified distribution ($140). 
Therefore, $100 is sourced from AAA. Pursuant to paragraph (b)(2)(ii) of 
this section, after the distribution, X's AAA is reduced by $100 to $40. 
Pursuant to paragraph (b)(2)(iii) of this section, A's basis in its X 
stock is reduced by $100 to $340.
    (ii) Distribution of AE&P. Pursuant to paragraph (b)(3)(i) of this 
section, the portion of the distribution that is sourced from AE&P is 
equal to the lesser of: The product of the qualified distribution and 
the AE&P ratio ($150 x 0.33, or $50), and X's AE&P immediately before 
the qualified distribution ($70). Therefore, $50 is sourced from AE&P. 
Pursuant to paragraph (b)(3)(ii) of this section, after the 
distribution, X's AE&P is reduced by $50 to $20. Pursuant to paragraph 
(b)(3)(iii) of this section, the $50 distribution is characterized as a 
dividend.
    (3) Example 3: Limitation on amount characterized as AAA--(i) Facts. 
At the beginning of January 1, 2018, X had AAA of $100 and AE&P of $300. 
During 2018, X had $280 of CE&P and made no distributions. At the 
beginning of January 1, 2019, X has AAA of $100 and AE&P of $580, and 
A's adjusted basis in its share of X stock is $450. During 2019, the 
only distribution that X makes is a $500 distribution of money to A on 
October 5. X's CE&P during 2019 is $150, without diminution by reason of 
any distributions made during the taxable year.
    (ii) Analysis--(A) Calculation of AAA ratio and AE&P ratio. Pursuant 
to paragraphs (a)(2)(ix) and (x) of this section, respectively, X's 
historical AAA and X's historical AE&P are determined as of the 
beginning of January 1, 2018, the beginning of the day on which the 
revocation of X's election under section 1362(a) is effective pursuant 
to section 1362(d)(1). Accordingly, X's historical AAA is $100 and X's 
historical AE&P is $300. Therefore, X's AAA ratio is 0.25 ($100/($100 + 
$300)), and X's AE&P ratio is 0.75 ($300/($100 + $300)).
    (B) Characterization of distribution. Pursuant to paragraph 
(a)(2)(xii) of this section, the $500 distribution on October 5, 2019, 
is a qualified distribution because it is a distribution of money by an 
ETSC during the ETSC period to which section 301 would apply absent the 
application of section 1371(f) and this section.
    (C) Analysis of qualified distribution--(1) Distribution of AAA. 
Pursuant to paragraph (b)(2)(i) of this section, the portion of the 
qualified distribution that is sourced from AAA is equal to the lesser 
of: The product of the qualified distribution and the AAA ratio ($500 x 
0.25, or $125), and X's AAA immediately before the qualified 
distribution ($100). Therefore, $100 is sourced from AAA. Pursuant to 
paragraph (b)(2)(ii) of this section, after the distribution, X's AAA is 
reduced by $100 to $0. Pursuant to paragraph (b)(2)(iii) of this 
section, A's basis in its X stock is reduced by $100 to $350.
    (2) Distribution of AE&P. Pursuant to paragraph (b)(3)(i) of this 
section, the portion of the distribution that is sourced from AE&P is 
equal to the lesser of: the product of the qualified distribution and 
the AE&P ratio ($500 x 0.75, or $375), and X's AE&P immediately before 
the qualified distribution ($580). Therefore, $375 is sourced from AE&P. 
Pursuant to paragraph

[[Page 922]]

(b)(3)(ii) of this section, after the distribution, X's AE&P is reduced 
by $375 to $205. Pursuant to paragraph (b)(3)(iii) of this section, the 
$375 distribution is characterized as a dividend.
    (D) Effect of qualified distribution on ETSC period. Pursuant to 
paragraph (a)(2)(vii) of this section, X's ETSC period ends because X's 
AAA balance is zero following the October 5, 2019 distribution.
    (E) Analysis of excess qualified distribution--(1) Amount of excess 
qualified distribution. Pursuant to paragraph (a)(2)(viii) of this 
section, the amount of the excess qualified distribution is $25, the 
portion of the qualified distribution ($500) not characterized pursuant 
to paragraph (b)(2) or (3) of this section ($100 AAA distribution + $375 
AE&P distribution).
    (2) Characterization of excess qualified distribution. Paragraph 
(b)(4) of this section does not apply to the excess qualified 
distribution because X's AAA balance is zero after the application of 
paragraph (b)(2)(ii) of this section (see paragraph (d)(3)(ii)(C)(1) of 
this section). Pursuant to paragraph (c) of this section, section 301(c) 
applies to the excess qualified distribution. Pursuant to sections 
301(c)(1) and 316, the $25 excess qualified distribution is sourced from 
CE&P.
    (iii) Subsequent contribution. The facts are the same as paragraph 
(d)(3)(i) of this section, except that at the time of the October 5, 
2019 distribution, A's adjusted basis in its X stock is $90. Further, on 
December 27, 2019, A contributes $100 to X in a transaction described in 
section 351(a). The analysis in paragraph (d)(3)(ii) of this section 
remains the same, except that, unlike the second to last sentence of 
paragraph (d)(3)(ii)(C)(1) of this section, A's basis in its X stock is 
reduced by $90 to $0 and pursuant to paragraph (b)(2)(iii) of this 
section, $10 is treated as gain from the sale or exchange of property. 
Additionally, as a result of the December 27, 2019 contribution of $100, 
A's basis in its X stock is increased by $100, so that at the end of 
2019, A's basis in its X stock is $100.
    (4) Example 4: Limitation on the amount characterized as AE&P--(i) 
Facts. At the beginning of January 1, 2018, X had AAA of $100 and AE&P 
of $100. During 2018, X had CE&P of $(75) and made no distributions. At 
the beginning of January 1, 2019, X has AAA of $100 and AE&P of $25, and 
A's adjusted basis in its share of X stock is $500. During 2019, the 
only distributions that X makes are a $100 distribution of money to A on 
July 9 and a $40 distribution of money to A on September 27. X's CE&P 
during 2019 is $20, without diminution by reason of any distributions 
made during the taxable year.
    (ii) Analysis--(A) Calculation of AAA ratio and AE&P ratio. Pursuant 
to paragraphs (a)(2)(ix) and (x) of this section, respectively, X's 
historical AAA and X's historical AE&P are determined as of the 
beginning of January 1, 2018, the beginning of the day on which the 
revocation of X's election under section 1362(a) is effective pursuant 
to section 1362(d)(1). Accordingly, X's historical AAA is $100 and X's 
historical AE&P is $100. Therefore, X's AAA ratio is 0.5 ($100/($100 + 
$100)), and X's AE&P ratio is 0.5 ($100/($100 + $100)).
    (B) Analysis of July 9, 2019 distribution--(1) Characterization of 
distribution. Pursuant to paragraph (a)(2)(xii) of this section, the 
$100 distribution on July 9, 2019, is a qualified distribution because 
it is a distribution of money by an ETSC during the ETSC period to which 
section 301 would apply absent the application of section 1371(f) and 
this section.
    (2) Analysis of qualified distribution--(i) Distribution of AAA. 
Pursuant to paragraph (b)(2)(i) of this section, the portion of the 
distribution that is sourced from AAA is equal to the lesser of: The 
product of the qualified distribution and the AAA ratio ($100 x 0.5, or 
$50), and X's AAA immediately before the qualified distribution ($100). 
Therefore, $50 is sourced from AAA. Pursuant to paragraph (b)(2)(ii) of 
this section, after the distribution, X's AAA is reduced by $50 to $50. 
Pursuant to paragraph (b)(2)(iii) of this section, A's basis in its X 
stock is reduced by $50 to $450.
    (ii) Distribution of AE&P. Pursuant to paragraph (b)(3)(i) of this 
section, the portion of the distribution that is sourced from AE&P is 
equal to the lesser of: The product of the qualified distribution and 
the AE&P ratio ($100 x

[[Page 923]]

0.5, or $50), and X's AE&P immediately before the qualified distribution 
($25). Therefore, $25 is sourced from AE&P. Pursuant to paragraph 
(b)(3)(ii) of this section, after the distribution, X's AE&P is reduced 
by $25 to $0. Pursuant to paragraph (b)(3)(iii) of this section, $25 of 
the distribution is characterized as a dividend.
    (3) Recalculation of AAA and AE&P ratios. Pursuant to paragraph 
(b)(3)(iv) of this section, because the July 9, 2019 distribution caused 
X's AE&P to be reduced to zero, the AAA ratio is one and the AE&P ratio 
is zero for all subsequent qualified distributions during the 2019 
taxable year and subsequent taxable years of the ETSC period.
    (4) Excess qualified distribution--(i) Amount of excess qualified 
distribution. Pursuant to paragraph (a)(2)(viii) of this section, the 
amount of the excess qualified distribution is $25, the amount of the 
qualified distribution ($100) not characterized pursuant to paragraph 
(b)(2) or (3) of this section ($50 AAA distribution + $25 AE&P 
distribution).
    (ii) Characterization of excess qualified distribution as a separate 
qualified distribution. Pursuant to paragraph (b)(4) of this section, 
because X has AAA remaining after characterizing the qualified 
distribution (see paragraph (d)(4)(ii)(B)(2)(i) of this section), the 
$25 excess qualified distribution is treated as a separate qualified 
distribution and is analyzed pursuant to paragraph (b) of this section.
    (iii) Analysis of excess qualified distribution that is treated as a 
separate qualified distribution. Pursuant to paragraph (b)(2)(i) of this 
section, the portion of the distribution that is sourced from AAA is 
equal to the lesser of: The product of the excess qualified distribution 
and the AAA ratio ($25 x 1, or $25), and X's AAA immediately before the 
excess qualified distribution ($50). Therefore, $25 is sourced from AAA. 
Pursuant to paragraph (b)(2)(ii) of this section, after the 
distribution, X's AAA is reduced by $25 to $25. Pursuant to paragraph 
(b)(2)(iii) of this section, A's basis in its X stock is reduced by $25 
to $425. Pursuant to paragraph (b)(3)(i) of this section, because X's 
AE&P ratio is zero, paragraph (b)(3) of this section does not apply.
    (C) Analysis of September 27, 2019 distribution--(1) 
Characterization of the distribution. Pursuant to paragraph (a)(2)(xii) 
of this section, the $40 distribution on September 27, 2019, is a 
qualified distribution because it is a distribution of money by an ETSC 
during the ETSC period to which section 301 would apply absent the 
application of section 1371(f) and this section.
    (2) Analysis of qualified distribution--(i) Distribution of AAA. 
Pursuant to paragraph (b)(2)(i) of this section, the portion of the 
distribution that is sourced from AAA is equal to the lesser of: The 
product of the qualified distribution and the AAA ratio ($40 x 1, or 
$40), and X's AAA immediately before the qualified distribution ($25) 
(see paragraph (d)(4)(ii)(B)(4)(iii) of this section). Therefore, $25 is 
sourced from AAA. Pursuant to paragraph (b)(2)(ii) of this section, 
after the distribution, X's AAA is reduced by $25 to $0. Pursuant to 
paragraph (b)(2)(iii) of this section, A's basis in its X stock is 
reduced by $25 to $400.
    (ii) Distribution of AE&P. Pursuant to paragraph (b)(3)(i) of this 
section, because X's AE&P ratio is zero, paragraph (b)(3) of this 
section does not apply.
    (3) Excess qualified distribution--(i) Amount of excess qualified 
distribution. Pursuant to paragraph (a)(2)(viii) of this section, the 
amount of the excess qualified distribution is $15, the portion of the 
qualified distribution ($40) not characterized pursuant to paragraph 
(b)(2) or (3) of this section ($25 AAA distribution + $0 AE&P 
distribution).
    (ii) Excess qualified distribution not characterized as a separate 
qualified distribution. Pursuant to paragraph (b)(4) of this section, 
because X has AAA of $0 after characterizing the qualified distribution 
(see paragraph (d)(4)(ii)(C)(2)(i) of this section), the $15 excess 
qualified distribution is not treated as a separate qualified 
distribution.
    (iii) Analysis of excess qualified distribution that is not treated 
as a separate qualified distribution. Pursuant to paragraph (c) of this 
section, section 301(c) applies to the excess qualified distribution. 
Pursuant to sections 301(c)(1) and

[[Page 924]]

316, the $15 excess qualified distribution is sourced from CE&P.
    (5) Example 5: Distributions include non-qualified distributions--
(i) Facts. At the beginning of January 1, 2018, X had AAA of $100 and 
AE&P of $100. During 2018, X had $0 of CE&P and made no distributions. 
At the beginning of January 1, 2019, X has AAA of $100 and AE&P of $100, 
and A's adjusted basis in its X stock is $200. During 2019, X makes a 
$100 distribution of money on June 14; a $300 distribution of property 
on November 9; and a $200 distribution of money on December 18. X's CE&P 
during 2019 is $160, without diminution by reason of any distributions 
made during the taxable year.
    (ii) Analysis--(A) Calculation of AAA ratio and AE&P ratio. Pursuant 
to paragraphs (a)(2)(ix) and (x) of this section, respectively, X's 
historical AAA is $100 and X's historical AE&P is $100. Therefore, X's 
AAA ratio is 0.5 ($100/($100 + $100)), and X's AE&P ratio is 0.5 ($100/
($100 + $100)).
    (B) Characterization of distributions. Pursuant to paragraph 
(a)(2)(xii) of this section, the $100 distribution on June 14, 2019, and 
the $200 distribution on December 18, 2019, are both qualified 
distributions because they are distributions of money by an ETSC during 
the ETSC period to which section 301 would apply absent the application 
of section 1371(f) and this section. Pursuant to paragraph (a)(2)(xi) of 
this section, the $300 distribution of property on November 9, 2019, is 
a non-qualified distribution. Pursuant to paragraph (b)(1) of this 
section, the rules of paragraph (b)(2) through (b)(4) of this section 
apply to the qualified distributions before the rules of paragraph (c) 
of this section apply to the non-qualified distribution and any excess 
qualified distributions.
    (C) Analysis of qualified distributions--(1) June 14, 2019 
distribution--(i) Distribution of AAA. Pursuant to paragraph (b)(2)(i) 
of this section, the portion of the distribution that is sourced from 
AAA is equal to the lesser of: The product of the qualified distribution 
and the AAA ratio ($100 x 0.5, or $50), and X's AAA immediately before 
the qualified distribution ($100). Therefore, $50 is sourced from AAA. 
Pursuant to paragraph (b)(2)(ii) of this section, after the 
distribution, X's AAA is reduced by $50 to $50. Pursuant to paragraph 
(b)(2)(iii) of this section, on June 14, 2019, A's basis in its X stock 
is reduced by $50 to $150.
    (ii) Distribution of AE&P. Pursuant to paragraph (b)(3)(i) of this 
section, the portion of the distribution that is sourced from AE&P is 
equal to the lesser of: The product of the qualified distribution and 
the AE&P ratio ($100 x 0.5, or $50), and X's AE&P immediately before the 
qualified distribution ($100). Therefore, $50 is sourced from AE&P. 
Pursuant to paragraph (b)(3)(ii) of this section, after the 
distribution, X's AE&P is reduced by $50 to $50. Pursuant to paragraph 
(b)(3)(iii) of this section, the $50 distribution is characterized as a 
dividend.
    (iii) Amount of excess qualified distribution. The amount of the 
excess qualified distribution is $0, the amount of the qualified 
distribution ($100) not characterized pursuant to paragraph (b)(2) or 
(3) of this section ($50 AAA distribution + $50 AE&P distribution).
    (2) December 18, 2019 distribution--(i) Distribution of AAA. 
Pursuant to paragraph (b)(2)(i) of this section, the portion of the 
distribution that is sourced from AAA is equal to the lesser of: The 
product of the qualified distribution and the AAA ratio ($200 x 0.5, or 
$100), and X's AAA immediately before the qualified distribution ($50). 
Therefore, $50 is sourced from AAA. Pursuant to paragraph (b)(2)(ii) of 
this section, after the distribution, X's AAA is reduced by $50 to $0. 
Pursuant to paragraph (b)(2)(iii) of this section, A must determine its 
basis as of December 18, 2019, in order to determine the consequences of 
receiving the $50 AAA distribution. Because the non-qualified 
distribution on November 9, 2019, which precedes the December 18, 2019 
qualified distribution, could have the effect of reducing A's basis, any 
effect on A's basis from that non-qualified distribution must be 
analyzed prior to determining the effect of the December 18, 2019 
distribution of AAA on A's basis. See paragraphs (d)(5)(ii)(D)(3) and 
(4) of this section. Pursuant to paragraph (a)(2)(vii) of this section, 
X's ETSC period ends because X's AAA balance is zero following the 
December 18, 2019 distribution.

[[Page 925]]

    (ii) Distribution of AE&P. Pursuant to paragraph (b)(3)(i) of this 
section, the portion of the distribution that is sourced from AE&P is 
equal to the lesser of: The product of the qualified distribution and 
the AE&P ratio ($200 x 0.5, or $100), and X's AE&P immediately before 
the qualified distribution ($50). Therefore, $50 is sourced from AE&P. 
Pursuant to paragraph (b)(3)(ii) of this section, after the 
distribution, X's AE&P is reduced by $50 to $0. Pursuant to paragraph 
(b)(3)(iii) of this section, the $50 distribution is characterized as a 
dividend.
    (iii) Amount of excess qualified distribution. The amount of the 
excess qualified distribution is $100, the amount of the qualified 
distribution ($200) not characterized pursuant to paragraph (b)(2) or 
(3) of this section ($50 AAA distribution + $50 AE&P distribution).
    (D) Analysis of non-qualified and excess qualified distributions--
(1) In general. The $300 non-qualified distribution on November 9, 2019, 
and the $100 excess qualified distribution on December 18, 2019, are 
treated in the manner provided in section 301(c).
    (2) Allocation of CE&P. Pursuant to section 316 and Sec.  1.316-2, 
X's CE&P is allocated proportionately among the excess qualified and the 
non-qualified distributions. Therefore, the portion of X's CE&P that is 
allocated to the November 9, 2019 distribution and the December 18, 2019 
distribution is $120 ($160 CE&P x ($300 distribution/$400 total excess 
qualified and non-qualified distributions during 2019) and $40 ($160 
CE&P x ($100 distribution/$400 total excess qualified and non-qualified 
distributions during 2019), respectively.
    (3) November 9, 2019 distribution. Pursuant to paragraph 
(d)(5)(ii)(D)(2) of this section, $120 of the $300 distribution is 
characterized as a distribution of CE&P. Pursuant to paragraph 
(d)(5)(ii)(C)(2)(ii) of this section, the amount of X's AE&P available 
to allocate the November 9, 2019 distribution is $0. Therefore, the 
remaining $180 is characterized pursuant to section 301(c)(2) and (3). 
Pursuant to paragraph (d)(5)(ii)(C)(1)(i) of this section, A's basis in 
its X stock prior to the November 9, 2019 distribution is $150. 
Therefore, $150 is applied against basis pursuant to section 301(c)(2) 
(reducing A's basis to $0) and $30 is treated as gain from the sale or 
exchange of property pursuant to section 301(c)(3).
    (4) December 18, 2019 distribution--(i) Consequences of AAA 
distribution. As of December 18, 2019, A's basis in its X stock is $0. 
See paragraph (d)(5)(ii)(D)(3) of this section. Pursuant to paragraph 
(d)(5)(ii)(C)(2)(i) of this section, $50 of the distribution is 
characterized as a distribution of AAA. Because the amount of the 
distribution of AAA ($50) exceeds A's basis in its X stock ($0), 
pursuant to paragraph (b)(2)(iii) of this section, on December 18, 2019, 
$50 is treated as gain from the sale or exchange of property.
    (ii) Characterization of excess qualified distribution. Pursuant to 
paragraph (d)(5)(ii)(C)(2)(iii) of this section, $100 of the December 
18, 2019 distribution is an excess qualified distribution. Paragraph 
(b)(4) of this section does not apply to the excess qualified 
distribution because X's AAA balance is zero after the application of 
paragraph (b)(2)(ii) of this section (see paragraph (d)(5)(ii)(C)(2)(i) 
of this section. Pursuant to paragraph (c) of this section, section 
301(c) applies to the excess qualified distribution. Pursuant to 
paragraph (d)(5)(ii)(D)(2) of this section, $40 of the $100 excess 
qualified distribution is characterized as a distribution of CE&P. 
Pursuant to paragraph (d)(5)(ii)(D)(3) of this section, X's AE&P as the 
time of the December 18, 2019 distribution is $0. Therefore, the 
remaining $60 is characterized pursuant to section 301(c)(2) and (3). 
Pursuant to paragraph (d)(5)(ii)(D)(4)(i) of this section, A's basis in 
its X stock prior to characterization of the excess qualified 
distribution is $0. Therefore, $60 is treated as gain from the sale or 
exchange of property pursuant to section 301(c)(3).
    (e) Applicability date. This section applies to taxable years 
beginning after October 20, 2020. However, a corporation may choose to 
apply the rules in Sec. Sec.  1.481-5, 1.1371-1, and 1.1371-2 in their 
entirety to taxable years beginning on or before October 20, 2020. If a 
corporation makes the choice described in the previous sentence, all 
shareholders of the corporation must report consistently, and the 
corporation must continue to apply the rules in Sec. Sec.  1.481-5,

[[Page 926]]

1.1371-1, and 1.1371-2 in their entirety for the corporation's 
subsequent taxable years.

[T.D. 9914, 85 FR 66478, Oct. 20, 2020]



Sec.  1.1371-2  Impact of Audit PTTP on ETSC Period.

    (a) Definitions. For purposes of this section, the definitions used 
in Sec.  1.1371-1(a)(2) are applicable. Additionally, the following 
definitions apply for purposes of this section--
    (1) Audit PTTP. The term audit PTTP means a post-termination 
transition period described in section 1377(b)(1)(B) of the Internal 
Revenue Code (Code).
    (2) Initial PTTP. The term initial PTTP means a post-termination 
transition period described in section 1377(b)(1)(A).
    (3) Intervening audit PTTP. The term intervening audit PTTP means an 
audit PTTP arising during the ETSC period.
    (b) In general. If an intervening audit PTTP arises, the ETSC period 
immediately stops. Immediately following the end of the intervening 
audit PTTP, the ETSC period resumes if the ETSC's AAA balance is greater 
than zero. Otherwise, any subsequent distributions by the ETSC are 
treated in the manner provided in section 301(c) of the Code.
    (c) Examples. Paragraphs (c)(1) and (2) of this section (Examples 1 
and 2) illustrate the rules of this section. For purposes of paragraphs 
(c)(1) and (2) of this section (Examples 1 and 2), X is a calendar year 
S corporation. A, an individual, purchased all of the outstanding shares 
of X in a single transaction at the same price per share prior to 
December 22, 2017, and was the sole shareholder of X at all times. 
Pursuant to section 1362(d)(1) of the Code and Sec. Sec.  1.1362-2 and 
1.1362-6, X made a valid revocation of its S election on March 15, 2019, 
that became effective on January 1, 2019. No amount distributed by X is 
an extraordinary dividend within the meaning of section 1059.
    (1) Example 1: No ETSC period following initial PTTP--(i) Facts. At 
the beginning of January 1, 2019, X had AAA of $49,000 and AE&P of 
$2,000, and A's adjusted basis in its shares of X stock was $50,000. 
During 2019, the only distribution that X made was a $49,000 
distribution of money to A on March 13, 2019. X's CE&P during 2019 was 
$0, without regard to any diminution by reason of any distributions made 
during the taxable year.
    (ii) Analysis--(A) Distribution during initial PTTP. Pursuant to 
sections 1371(e) and 1377(b)(1)(A), the $49,000 distribution of money on 
March 13, 2019, is characterized as a distribution of AAA because it was 
made during the initial PTTP.
    (B) Effect on corporation. Pursuant to Sec.  1.1368-2(a)(3)(iii), 
X's AAA is reduced by $49,000 to $0. Following the initial PTTP, even if 
X satisfies the requirements of section 481(d)(2) of the Code and Sec.  
1.481-5(b) to be an ETSC, X does not have an ETSC period because its AAA 
balance is zero at the end of its initial PTTP. Therefore, section 
1371(f) of the Code and Sec.  1.1371-1 will not apply to any subsequent 
distributions by X.
    (C) Effect on shareholder. Pursuant to section 1371(e)(1), A reduces 
its basis in its X stock by $49,000 to $1,000.
    (2) Example 2: Intervening audit PTTP--(i) Facts. The facts are the 
same as the facts in paragraph (c)(1) of this section. On May 20, 2020, 
which is after X's initial PTTP, the IRS begins an audit of X's 2018 
return. During the audit it is agreed that X overstated its advertising 
expense deduction by $10,000. On July 6, 2020, A signs a closing 
agreement whereby X's overstatement results in an additional tax on A's 
2018 individual return. As a result, at the beginning of January 1, 
2019, X had AAA of $59,000 ($49,000 + $10,000) and AE&P of $2,000. 
Additionally, at the beginning of January 1, 2019, A's adjusted basis in 
its shares of X stock was $60,000 ($50,000 + $10,000). During 2020, the 
only distribution X makes is a $6,000 distribution of money to A on 
September 1, 2020. X's CE&P during 2020 was $0, without regard to any 
diminution by reason of any distributions made during the taxable year.
    (ii) Analysis--(A) Analysis of March 13, 2019 distribution. The 
treatment of the March 13, 2019, distribution is the same as described 
in paragraph (c)(1)(ii)(A) of this section, because the amount of the 
distribution ($49,000) does not exceed X's AAA balance at the beginning 
of January 1, 2019 ($59,000), and so the entirety of the $49,000 
distribution is properly characterized as a distribution of AAA.

[[Page 927]]

    (1) Effect on corporation. As described in paragraph (c)(1)(ii)(B) 
of this section, X's AAA ($59,000 at the beginning of January 1, 2019) 
is reduced by $49,000 to $10,000. At the conclusion of X's initial PTTP 
(ending on December 31, 2019), X's AAA balance is $10,000. Pursuant to 
Sec.  1.1371-1(a)(2)(vii), X has an ETSC period. Therefore, section 
1371(f) and Sec.  1.1371-1 will apply to any subsequent qualified 
distributions by X.
    (2) Effect on shareholder. As described in paragraph (c)(1)(ii)(C) 
of this section, A reduces its basis in its X stock ($60,000 at the 
beginning of January 1, 2019) by $49,000 to $11,000.
    (B) Intervening audit PTTP. Pursuant to section 1377(b)(1)(B), X 
enters an intervening audit PTTP that begins on July 6, 2020, and ends 
on November 2, 2020. The application of section 1371(f) and Sec.  
1.1371-1 to distributions during the intervening audit PTTP is stopped. 
Instead, sections 1371(e) and 1377(b)(1)(B) and Sec. Sec.  1.1371-2 and 
1.1377-2 apply for the duration of the intervening audit PTTP. During 
the intervening audit PTTP, the only distribution X made is a $6,000 
distribution of money to A on September 1, 2020. Pursuant to sections 
1371(e) and 1377(b)(1)(B), the $6,000 distribution is characterized as a 
distribution of AAA because it was made during the intervening audit 
PTTP.
    (1) Effect on corporation. Pursuant to Sec.  1.1368-2(a)(3)(iii), 
X's AAA is reduced by $6,000 to $4,000. Beginning on November 3, 2020, 
pursuant to Sec.  1.1371-1(a)(2)(vii), X's ETSC period resumes (after 
the intervening audit PTTP's conclusion) because its AAA balance is 
greater than zero.
    (2) Effect on shareholder. Pursuant to section 1371(e)(1), A reduces 
its basis in its X stock by $6,000 to $5,000.
    (C) ETSC period. Beginning on November 3, 2020, X's ETSC period 
resumes, and distributions of money are subject to section 1371(f) and 
Sec.  1.1371-1 until X's AAA balance is zero. For purposes of 
calculating each of X's AAA and AE&P ratios, X's historical AAA is 
$59,000 (at the beginning of January 1, 2019, which includes the $10,000 
increase as a result of the July 6, 2020, closing agreement).
    (d) Applicability date. This section applies to taxable years 
beginning after October 20, 2020. However, a corporation may choose to 
apply the rules in Sec. Sec.  1.481-5, 1.1371-1, and 1.1371-2 in their 
entirety to taxable years that began on or before October 20, 2020. If a 
corporation makes the choice described in the previous sentence, all 
shareholders of the corporation must report consistently, and the 
corporation must continue to apply the rules in Sec. Sec.  1.481-5, 
1.1371-1, and 1.1371-2 in their entirety for the corporation's 
subsequent taxable years.

[T.D. 9914, 85 FR 66478, Oct. 20, 2020]



Sec.  1.1374-0  Table of contents.

    This section lists the major paragraph headings for Sec. Sec.  
1.1374-1 through 1.1374-10.

              Sec.  1.1374-1 General rules and definitions.

    (a) Computation of tax.
    (b) Anti-trafficking rules.
    (c) Section 1374 attributes.
    (d) Recognition period.
    (e) Predecessor corporation.

              Sec.  1.1374-2 Net recognized built-in gain.

    (a) In general.
    (b) Allocation rule.
    (c) Recognized built-in gain carryover.
    (d) Accounting methods.
    (e) Example.

              Sec.  1.1374-3 Net unrealized built-in gain.

    (a) In general.
    (b) Example.

            Sec.  1.1374-4 Recognized built-in gain or loss.

    (a) Sales and exchanges.
    (1) In general.
    (2) Oil and gas property.
    (3) Examples.
    (b) Accrual method rule.
    (1) Income items.
    (2) Deduction items.
    (3) Examples.
    (c) Section 267(a)(2) and 404(a)(5) deductions.
    (1) Section 267(a)(2).
    (2) Section 404(a)(5).
    (3) Examples.
    (d) Section 481(a) adjustments.
    (1) In general.
    (2) Examples.
    (e) Section 995(b)(2) deemed distributions.
    (f) Discharge of indebtedness and bad debts.
    (g) Completion of contract.
    (h) Installment method.
    (1) In general.
    (2) Limitation on amount subject to tax.
    (3) Rollover rule.

[[Page 928]]

    (4) Use of losses and section 1374 attributes.
    (5) Examples.
    (i) Partnership interests.
    (1) In general.
    (2) Limitations.
    (i) Partnership RBIG.
    (ii) Partnership RBIL.
    (3) Disposition of partnership interest.
    (4) RBIG and RBIL limitations.
    (i)-Sale of partnership interest.
    (ii) Amounts of limitations.
    (5) Small interest exception.
    (i) In general.
    (ii) Contributed assets.
    (iii) Anti-abuse rule.
    (6) Section 704(c) gain or loss.
    (7) Disposition of distributed partnership asset.
    (8) Examples.

                   Sec.  1.1374-5 Loss carryforwards.

    (a) In general.
    (b) Example.

            Sec.  1.1374-6 Credits and credit carryforwards.

    (a) In general.
    (b) Limitations.
    (c) Examples.
Sec.  1.1374-7 Inventory.
    (a) Valuation.
    (b) Identity of dispositions.

             Sec.  1.1374-8 Section 1374(d)(8) transactions.

    (a) In general.
    (b) Effective date of section 1374(d)(8).
    (c) Separate determination of tax.
    (d) Taxable income limitation.
    (e) Examples.

                   Sec.  1.1374-9 Anti-stuffing rule.

          Sec.  1.1374-10 Effective date and additional rules.

    (a) In general.
    (b) Additional rules.
    (1) Certain transfers to partnerships.
    (2) Certain inventory dispositions.
    (3) Certain contributions of built-in loss assets.
    (4) Certain installment sales.
    (i) In general.
    (ii) Examples.
    (c) Revocation and re-election of S corporation status.
    (1) In general.
    (2) Example.

[T.D. 8579, 59 FR 66463, Dec. 27, 1994, as amended by T.D. 9236, 70 FR 
75731, Dec. 21, 2005]



Sec.  1.1374-1  General rules and definitions.

    (a) Computation of tax. The tax imposed on the income of an S 
corporation by section 1374(a) for any taxable year during the 
recognition period is computed as follows--
    (1) Step One: Determine the net recognized built-in gain of the 
corporation for the taxable year under section 1374(d)(2) and Sec.  
1.1374-2;
    (2) Step Two: Reduce the net recognized built-in gain (but not below 
zero) by any net operating loss and capital loss carryforward allowed 
under section 1374(b)(2) and Sec.  1.1374-5;
    (3) Step Three: Compute a tentative tax by applying the rate of tax 
determined under section 1374(b)(1) for the taxable year to the amount 
determined under paragraph (a)(2) of this section;
    (4) Step Four: Compute the final tax by reducing the tentative tax 
(but not below zero) by any credit allowed under section 1374(b)(3) and 
Sec.  1.1374-6.
    (b) Anti-trafficking rules. If section 382, 383, or 384 would have 
applied to limit the use of a corporation's recognized built-in loss or 
section 1374 attributes at the beginning of the first day of the 
recognition period if the corporation had remained a C corporation, 
these sections apply to limit their use in determining the S 
corporation's pre-limitation amount, taxable income limitation, net 
unrealized built-in gain limitation, deductions against net recognized 
built-in gain, and credits against the section 1374 tax.
    (c) Section 1374 attributes. Section 1374 attributes are the loss 
carryforwards allowed under section 1374(b)(2) as a deduction against 
net recognized built-in gain and the credit and credit carryforwards 
allowed under section 1374(b)(3) as a credit against the section 1374 
tax.
    (d) Recognition period. The recognition period is the 10-year (120-
month) period beginning on the first day the corporation is an S 
corporation or the day an S corporation acquires assets in a section 
1374(d)(8) transaction. For example, if the first day of the recognition 
period is July 14, 1996, the last day of the recognition period is July 
13, 2006. If the recognition period for certain assets ends during an S 
corporation's taxable year (for example, because the corporation was on 
a fiscal year as a C corporation and changed to a calendar year as an S 
corporation or because an S corporation acquired assets in a section 
1374(d)(8) transaction

[[Page 929]]

during a taxable year), the S corporation must determine its pre-
limitation amount (as defined in Sec.  1.1374-2(a)(1)) for the year as 
if the corporation's books were closed at the end of the recognition 
period.
    (e) Predecessor corporation. For purposes of section 1374(c)(1), if 
the basis of an asset of the S corporation is determined (in whole or in 
part) by reference to the basis of the asset (or any other property) in 
the hands of another corporation, the other corporation is a predecessor 
corporation of the S corporation.

[T.D. 8579, 59 FR 66463, Dec. 27, 1994]



Sec.  1.1374-2  Net recognized built-in gain.

    (a) In general. An S corporation's net recognized built-in gain for 
any taxable year is the least of--
    (1) Its taxable income determined by using all rules applying to C 
corporations and considering only its recognized built-in gain, 
recognized built-in loss, and recognized built-in gain carryover (pre-
limitation amount);
    (2) Its taxable income determined by using all rules applying to C 
corporations as modified by section 1375(b)(1)(B) (taxable income 
limitation); and
    (3) The amount by which its net unrealized built-in gain exceeds its 
net recognized built-in gain for all prior taxable years (net unrealized 
built-in gain limitation).
    (b) Allocation rule. If an S corporation's pre-limitation amount for 
any taxable year exceeds its net recognized built-in gain for that year, 
the S corporation's net recognized built-in gain consists of a ratable 
portion of each item of income, gain, loss, and deduction included in 
the pre-limitation amount.
    (c) Recognized built-in gain carryover. If an S corporation's net 
recognized built-in gain for any taxable year is equal to its taxable 
income limitation, the amount by which its pre-limitation amount exceeds 
its taxable income limitation is a recognized built-in gain carryover 
included in its pre-limitation amount for the succeeding taxable year. 
The recognized built-in gain carryover consists of that portion of each 
item of income, gain, loss, and deduction not included in the S 
corporation's net recognized built-in gain for the year the carryover 
arose, as determined under paragraph (b) of this section.
    (d) Accounting methods. In determining its taxable income for pre-
limitation amount and taxable income limitation purposes, a corporation 
must use the accounting method(s) it uses for tax purposes as an S 
corporation.
    (e) Example. The rules of this section are illustrated by the 
following example.

    Example: Net recognized built-in gain. X is a calendar year C 
corporation that elects to become an S corporation on January 1, 1996. X 
has a net unrealized built-in gain of $50,000 and no net operating loss 
or capital loss carryforwards. In 1996, X has a pre-limitation amount of 
$20,000, consisting of ordinary income of $15,000 and capital gain of 
$5,000, a taxable income limitation of $9,600, and a net unrealized 
built-in gain limitation of $50,000. Therefore, X's net recognized 
built-in gain for 1996 is $9,600, because that is the least of the three 
amounts described in paragraph (a) of this section. Under paragraph (b) 
of this section, X's net recognized built-in gain consists of recognized 
built-in ordinary income of $7,200 [$15,000 x ($9,600/$20,000) = $7,200] 
and recognized built-in capital gain of $2,400 [$5,000 x ($9,600/
$20,000) = $2,400]. Under paragraph (c) of this section, X has a 
recognized built-in gain carryover to 1997 of $10,400 ($20,000-$9,600 = 
$10,400), consisting of $7,800 ($15,000-$7,200 = $7,800) of recognized 
built-in ordinary income and $2,600 ($5,000-$2,400 = $2,600) of 
recognized built-in capital gain.

[T.D. 8579, 59 FR 66463, Dec. 27, 1994]



Sec.  1.1374-3  Net unrealized built-in gain.

    (a) In general. An S corporation's net unrealized built-in gain is 
the total of the following--
    (1) The amount that would be the amount realized if, at the 
beginning of the first day of the recognition period, the corporation 
had remained a C corporation and had sold all its assets at fair market 
value to an unrelated party that assumed all its liabilities; decreased 
by
    (2) Any liability of the corporation that would be included in the 
amount realized on the sale referred to in paragraph (a)(1) of this 
section, but only if the corporation would be allowed a deduction on 
payment of the liability; decreased by
    (3) The aggregate adjusted bases of the corporation's assets at the 
time of

[[Page 930]]

the sale referred to in paragraph (a)(1) of this section; increased or 
decreased by
    (4) The corporation's section 481 adjustments that would be taken 
into account on the sale referred to in paragraph (a)(1) of this 
section; and increased by
    (5) Any recognized built-in loss that would not be allowed as a 
deduction under section 382, 383, or 384 on the sale referred to in 
paragraph (a)(1) of this section.
    (b) Adjustment to net unrealized built-in gain--(1) In general. If 
section 1374(d)(8) applies to an S corporation's acquisition of assets, 
some or all of the stock of the corporation from which such assets were 
acquired was taken into account in the computation of the net unrealized 
built-in gain for a pool of assets of the S corporation, and some or all 
of such stock is redeemed or canceled in such transaction, then, subject 
to the limitations of paragraph (b)(2) of this section, such net 
unrealized built-in gain is adjusted to eliminate any effect that any 
built-in gain or built-in loss in the redeemed or canceled stock (other 
than stock with respect to which a loss under section 165 is claimed) 
had on the initial computation of net unrealized built-in gain for that 
pool of assets. For purposes of this paragraph, stock described in 
section 1374(d)(6) shall be treated as taken into account in the 
computation of the net unrealized built-in gain for a pool of assets of 
the S corporation.
    (2) Limitations on adjustment--(i) Recognized built-in gain or loss. 
Net unrealized built-in gain for a pool of assets of the S corporation 
is only adjusted under paragraph (b)(1) of this section to reflect 
built-in gain or built-in loss in the redeemed or canceled stock that 
has not resulted in recognized built-in gain or recognized built-in loss 
during the recognition period.
    (ii) Anti-duplication rule. Paragraph (b)(1) of this section shall 
not be applied to duplicate an adjustment to the net unrealized built-in 
gain for a pool of assets made pursuant to paragraph (b)(1) of this 
section.
    (3) Effect of adjustment. Any adjustment to the net unrealized 
built-in gain made pursuant to this paragraph (b) only affects 
computations of the amount subject to tax under section 1374 for taxable 
years that end on or after the date of the acquisition to which section 
1374(d)(8) applies.
    (4) Pool of assets. For purposes of this section, a pool of assets 
means--
    (i) The assets held by the corporation on the first day it became an 
S corporation, if the corporation was previously a C corporation; or
    (ii) The assets the S corporation acquired from a C corporation in a 
section 1374(d)(8) transaction.
    (c) Examples. The following examples illustrate the rules of this 
section:

    Example 1. Computation of net unrealized built-in gain. (i)(A) X, a 
calendar year C corporation using the cash method, elects to become an S 
corporation on January 1, 1996. On December 31, 1995, X has assets and 
liabilities as follows:

------------------------------------------------------------------------
                      Assets                           FMV       Basis
------------------------------------------------------------------------
Factory..........................................    $500,000   $900,000
Accounts Receivable..............................     300,000          0
Goodwill.........................................     250,000          0
                                                  ----------------------
  Total..........................................   1,050,000    900,000
------------------------------------------------------------------------


 
                         Liabilities                             Amount
------------------------------------------------------------------------
Mortgage.....................................................   $200,000
Accounts Payable.............................................    100,000
                                                              ----------
  Total......................................................    300,000
------------------------------------------------------------------------

    (B) Further, X must include a total of $60,000 in taxable income in 
1996, 1997, and 1998 under section 481(a).
    (ii) If, on December 31, 1995, X sold all its assets to a third 
party that assumed all its liabilities, X's amount realized would be 
$1,050,000 ($750,000 cash received + $300,000 liabilities assumed = 
$1,050,000). Thus, X's net unrealized built-in gain is determined as 
follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Amount realized...........................................    $1,050,000
Deduction allowed (A/P)...................................     (100,000)
Basis of X's assets.......................................     (900,000)
Section 481 adjustments...................................        60,000
Net unrealized built-in gain..............................       110,000
------------------------------------------------------------------------

    Example 2. Adjustment to net unrealized built-in gain for built-in 
gain in eliminated C corporation stock. (i) X, a calendar year C 
corporation, elects to become an S corporation effective January 1, 
2005. On that date, X's assets (the first pool of assets) have a net 
unrealized built-in gain of $15,000. Among the assets in the first pool 
of assets is all of the outstanding stock of Y, a C corporation, with a 
fair market value of $33,000 and an adjusted basis of $18,000. On March 
1, 2009, X sells an asset that it owned on January 1,

[[Page 931]]

2005, and as a result has $10,000 of recognized built-in gain. X has had 
no other recognized built-in gain or built-in loss. X's taxable income 
limitation for 2009 is $50,000. Effective June 1, 2009, X elects under 
section 1361 to treat Y as a qualified subchapter S subsidiary (QSub). 
The election is treated as a transfer of Y's assets to X in a 
liquidation to which sections 332 and 337(a) apply.
    (ii) Under paragraph (b) of this section, the net unrealized built 
in-gain of the first pool of assets is adjusted to account for the 
elimination of the Y stock in the liquidation. The net unrealized built-
in gain of the first pool of assets, therefore, is decreased by $15,000, 
the amount by which the fair market value of the Y stock exceeded its 
adjusted basis as of January 1, 2005. Accordingly, for taxable years 
ending after June 1, 2009, the net unrealized built-in gain of the first 
pool of assets is $0.
    (iii) Under Sec.  1.1374-2(a), X's net recognized built-in gain for 
any taxable year equals the least of X's pre-limitation amount, taxable 
income limitation, and net unrealized built-in gain limitation. In 2009, 
X's pre-limitation amount is $10,000, X's taxable income limitation is 
$50,000, and X's net unrealized built-in gain limitation is $0. Because 
the net unrealized built-in gain of the first pool of assets has been 
adjusted to $0, despite the $10,000 of recognized built-in gain in 2009, 
X has $0 net recognized built-in gain for the taxable year ending on 
December 31, 2009.
    Example 3. Adjustment to net unrealized built-in gain for built-in 
loss in eliminated C corporation stock. (i) X, a calendar year C 
corporation, elects to become an S corporation effective January 1, 
2005. On that date, X's assets (the first pool of assets) have a net 
unrealized built-in gain of negative $5,000. Among the assets in the 
first pool of assets is 10 percent of the outstanding stock of Y, a C 
corporation, with a fair market value of $18,000 and an adjusted basis 
of $33,000. On March 1, 2009, X sells an asset that it owned on January 
1, 2005, resulting in $8,000 of recognized built-in gain. X has had no 
other recognized built-in gains or built-in losses. X's taxable income 
limitation for 2009 is $50,000. On June 1, 2009, Y transfers its assets 
to X in a reorganization under section 368(a)(1)(C).
    (ii) Under paragraph (b) of this section, the net unrealized built 
in-gain of the first pool of assets is adjusted to account for the 
elimination of the Y stock in the reorganization. The net unrealized 
built-in gain of the first pool of assets, therefore, is increased by 
$15,000, the amount by which the adjusted basis of the Y stock exceeded 
its fair market value as of January 1, 2005. Accordingly, for taxable 
years ending after June 1, 2009, the net unrealized built-in gain of the 
first pool of assets is $10,000.
    (iii) Under Sec.  1.1374-2(a), X's net recognized built-in gain for 
any taxable year equals the least of X's pre-limitation amount, taxable 
income limitation, and net unrealized built-in gain limitation. In 2009, 
X's pre-limitation amount is $8,000 and X's taxable income limitation is 
$50,000. The net unrealized built-in gain of the first pool of assets 
has been adjusted to $10,000, so X's net unrealized built-in gain 
limitation is $10,000. X, therefore, has $8,000 net recognized built-in 
gain for the taxable year ending on December 31, 2009. X's net 
unrealized built-in gain limitation for 2010 is $2,000.
    Example 4. Adjustment to net unrealized built-in gain in case of 
prior gain recognition. (i) X, a calendar year C corporation, elects to 
become an S corporation effective January 1, 2005. On that date, X's 
assets (the first pool of assets) have a net unrealized built-in gain of 
$30,000. Among the assets in the first pool of assets is all of the 
outstanding stock of Y, a C corporation, with a fair market value of 
$45,000 and an adjusted basis of $10,000. Y has no current or 
accumulated earnings and profits. On April 1, 2007, Y distributes 
$18,000 to X, $8,000 of which is treated as gain to X from the sale or 
exchange of property under section 301(c)(3). That $8,000 is recognized 
built-in gain to X under section 1374(d)(3), and results in $8,000 of 
net recognized built-in gain to X for 2007. X's net unrealized built-in 
gain limitation for 2008 is $22,000. On June 1, 2009, Y transfers its 
assets to X in a liquidation to which sections 332 and 337(a) apply.
    (ii) Under paragraph (b) of this section, the net unrealized built 
in-gain of the first pool of assets is adjusted to account for the 
elimination of the Y stock in the liquidation. The net unrealized built-
in gain of that pool of assets, however, can only be adjusted to reflect 
the amount of built-in gain that was inherent in the Y stock on January 
1, 2005 that has not resulted in recognized built-in gain during the 
recognition period. In this case, therefore, the net unrealized built-in 
gain of the first pool of assets cannot be reduced by more than $27,000 
($35,000, the amount by which the fair market value of the Y stock 
exceeded its adjusted basis as of January 1, 2005, minus $8,000, the 
recognized built-in gain with respect to the stock during the 
recognition period). Accordingly, for taxable years ending after June 1, 
2009, the net unrealized built-in gain of the first pool of assets is 
$3,000. The net unrealized built-in gain limitation for 2009 is $0.

[T.D. 8579, 59 FR 66464, Dec. 27, 1994, as amended by T.D. 9180, 70 FR 
8728, Feb. 23, 2005]



Sec.  1.1374-4  Recognized built-in gain or loss.

    (a) Sales and exchanges--(1) In general. Section 1374(d)(3) or 
1374(d)(4) applies to any gain or loss recognized during the recognition 
period in a transaction

[[Page 932]]

treated as a sale or exchange for Federal income tax purposes.
    (2) Oil and gas property. For purposes of paragraph (a)(1) of this 
section, an S corporation's adjusted basis in oil and gas property 
equals the sum of the shareholders' adjusted bases in the property as 
determined in section 613A(c)(11)(B).
    (3) Examples. The rules of this paragraph (a) are illustrated by the 
following examples.

    Example 1. Production and sale of oil. X is a C corporation that 
purchased a working interest in an oil and gas property for $100,000 on 
July 1, 1993. X elects to become an S corporation effective January 1, 
1996. On that date, the working interest has a fair market value of 
$250,000 and an adjusted basis of $50,000, but no oil has as yet been 
extracted. In 1996, X begins production of the working interest, sells 
oil that it has produced to a refinery for $75,000, and includes that 
amount in gross income. Under paragraph (a)(1) of this section, the 
$75,000 is not recognized built-in gain because as of the beginning of 
the recognition period X held only a working interest in the oil and gas 
property (since the oil had not yet been extracted from the ground), and 
not the oil itself.
    Example 2. Sale of oil and gas property. Y is a C corporation that 
elects to become an S corporation effective January 1, 1996. Y has two 
shareholders, A and B. A and B each own 50 percent of Y's stock. In 
addition, Y owns a royalty interest in an oil and gas property with a 
fair market value of $300,000 and an adjusted basis of $200,000. Under 
section 613A(c)(11)(B), Y's $200,000 adjusted basis in the royalty 
interest is allocated $100,000 to A and $100,000 to B. During 1996, A 
and B take depletion deductions with respect to the royalty interest of 
$10,000 and $15,000, respectively. As of January 1, 1997, A and B have a 
basis in the royalty interest of $90,000 and $85,000, respectively. On 
January 1, 1997, Y sells the royalty interest for $250,000. Under 
paragraph (a)(1) of this section, Y has gain recognized and recognized 
built-in gain of $75,000 ($250,000-($90,000 + $85,000) = $75,000) on the 
sale.

    (b) Accrual method rule--(1) Income items. Except as otherwise 
provided in this section, any item of income properly taken into account 
during the recognition period is recognized built-in gain if the item 
would have been properly included in gross income before the beginning 
of the recognition period by an accrual method taxpayer (disregarding 
any method of accounting for which an election by the taxpayer must be 
made unless the taxpayer actually used the method when it was a C 
corporation).
    (2) Deduction items. Except as otherwise provided in this section, 
any item of deduction properly taken into account during the recognition 
period is recognized built-in loss if the item would have been properly 
allowed as a deduction against gross income before the beginning of the 
recognition period to an accrual method taxpayer (disregarding any 
method of accounting for which an election by the taxpayer must be made 
unless the taxpayer actually used the method when it was a C 
corporation). In determining whether an item would have been properly 
allowed as a deduction against gross income by an accrual method 
taxpayer for purposes of this paragraph, section 461(h)(2)(C) and Sec.  
1.461-4(g) (relating to liabilities for tort, worker's compensation, 
breach of contract, violation of law, rebates, refunds, awards, prizes, 
jackpots, insurance contracts, warranty contracts, service contracts, 
taxes, and other liabilities) do not apply.
    (3) Examples. The rules of this paragraph (b) are illustrated by the 
following examples.

    Example 1. Accounts receivable. X is a C corporation using the cash 
method that elects to become an S corporation effective January 1, 1996. 
On January 1, 1996, X has $50,000 of accounts receivable for services 
rendered before that date. On that date, the accounts receivable have a 
fair market value of $40,000 and an adjusted basis of $0. In 1996, X 
collects $50,000 on the accounts receivable and includes that amount in 
gross income. Under paragraph (b)(1) of this section, the $50,000 
included in gross income in 1996 is recognized built-in gain because it 
would have been included in gross income before the beginning of the 
recognition period if X had been an accrual method taxpayer. However, if 
X instead disposes of the accounts receivable for $45,000 on July 1, 
1996, in a transaction treated as a sale or exchange for Federal income 
tax purposes, X would have recognized built-in gain of $40,000 on the 
disposition.
    Example 2. Contingent liability. Y is a C corporation using the cash 
method that elects to become an S corporation effective January 1, 1996. 
In 1995, a lawsuit was filed against Y claiming $1,000,000 in damages. 
In 1996, Y loses the lawsuit, pays a $500,000 judgment, and properly 
claims a deduction for that amount. Under paragraph (b)(2) of this 
section, the $500,000 deduction allowed in 1996 is not recognized built-
in loss because it

[[Page 933]]

would not have been allowed as a deduction against gross income before 
the beginning of the recognition period if Y had been an accrual method 
taxpayer (even disregarding section 461(h)(2)(C) and Sec.  1.461-4(g)).
    Example 3. Deferred payment liabilities. X is a C corporation using 
the cash method that elects to become an S corporation on January 1, 
1996. In 1995, X lost a lawsuit and became obligated to pay $150,000 in 
damages. Under section 461(h)(2)(C), this amount is not allowed as a 
deduction until X makes payment. In 1996, X makes payment and properly 
claims a deduction for the amount of the payment. Under paragraph (b)(2) 
of this section, the $150,000 deduction allowed in 1996 is recognized 
built-in loss because it would have been allowed as a deduction against 
gross income before the beginning of the recognition period if X had 
been an accrual method taxpayer (disregarding section 461(h)(2)(C) and 
Sec.  1.461-4(g)).
    Example 4. Deferred prepayment income. Y is a C corporation using an 
accrual method that elects to become an S corporation effective January 
1, 1996. In 1995, Y received $2,500 for services to be rendered in 1996, 
and properly elected to include the $2,500 in gross income in 1996 under 
Rev. Proc. 71-21, 1971-2 C.B. 549 (see Sec.  601.601(d)(2)(ii)(b) of 
this chapter). Under paragraph (b)(1) of this section, the $2,500 
included in gross income in 1996 is not recognized built-in gain because 
it would not have been included in gross income before the beginning of 
the recognition period by an accrual method taxpayer using the method 
that Y actually used before the beginning of the recognition period.
    Example 5. Change in method. X is a C corporation using an accrual 
method that elects to become an S corporation effective January 1, 1996. 
In 1995, X received $5,000 for services to be rendered in 1996, and 
properly included the $5,000 in gross income. In 1996, X properly elects 
to include the $5,000 in gross income in 1996 under Rev. Proc. 71-21, 
1971-2 C.B. 549 (see Sec.  601.601(d)(2)(ii)(b) of this chapter). As a 
result of the change in method of accounting, X has a $5,000 negative 
section 481(a) adjustment. Under paragraph (b)(1) of this section, the 
$5,000 included in gross income in 1996 is recognized built-in gain 
because it would have been included in gross income before the beginning 
of the recognition period by an accrual method taxpayer using the method 
that X actually used before the beginning of the recognition period. In 
addition, the $5,000 negative section 481(a) adjustment is recognized 
built-in loss because it relates to an item (the $5,000 X received for 
services in 1995) attributable to periods before the beginning of the 
recognition period under the principles for determining recognized 
built-in gain or loss in this section. See paragraph (d) of this section 
for rules regarding section 481(a) adjustments.

    (c) Section 267(a)(2) and 404(a)(5) deductions--(1) Section 
267(a)(2). Notwithstanding paragraph (b)(2) of this section, any amount 
properly deducted in the recognition period under section 267(a)(2), 
relating to payments to related parties, is recognized built-in loss to 
the extent--
    (i) All events have occurred that establish the fact of the 
liability to pay the amount, and the exact amount of the liability can 
be determined, as of the beginning of the recognition period; and
    (ii) The amount is paid--
    (A) In the first two and one-half months of the recognition period; 
or
    (B) To a related party owning, under the attribution rules of 
section 267, less than 5 percent, by voting power and value, of the 
corporation's stock, both as of the beginning of the recognition period 
and when the amount is paid.
    (2) Section 404(a)(5). Notwithstanding paragraph (b)(2) of this 
section, any amount properly deducted in the recognition period under 
section 404(a)(5), relating to payments for deferred compensation, is 
recognized built-in loss to the extent--
    (i) All events have occurred that establish the fact of the 
liability to pay the amount, and the exact amount of the liability can 
be determined, as of the beginning of the recognition period; and
    (ii) The amount is not paid to a related party to which section 
267(a)(2) applies.
    (3) Examples. The rules of this paragraph (c) are illustrated by the 
following examples.

    Example 1. Fixed annuity. X is a C corporation that elects to become 
an S corporation effective January 1, 1996. On December 31, 1995, A is 
age 60, has provided services to X as an employee for 20 years, and is a 
vested participant in X's unfunded nonqualified retirement plan. Under 
the plan, A receives $1,000 per month upon retirement until death. The 
plan provides no additional benefits. A retires on December 31, 1997, 
after working for X for 22 years. A at no time is a shareholder of X. 
X's deductions under section 404(a)(5) in the recognition period on 
paying A the $1,000 per month are recognized built-in loss because all 
events have occurred that establish the fact of the liability to pay the 
amount, and the exact amount of the liability can be determined, as of 
the beginning of the recognition period.

[[Page 934]]

    Example 2. Increase in annuity for working beyond 20 years. The 
facts are the same as Example 1, except that under the plan A receives 
$1,000 per month, plus $100 per month for each year A works for X beyond 
20 years, upon retirement until death. X's deductions on paying A the 
$1,000 per month are recognized built-in loss. However, X's deductions 
on paying A the $200 per month for the two years A worked for X beyond 
20 years are not recognized built-in loss because all events have not 
occurred that establish the fact of the liability to pay the amount, and 
the exact amount of the liability cannot be determined, as of the 
beginning of the recognition period.
    Example 3. Cost of living adjustment. The facts are the same as 
Example 1, except that under the plan A receives $1,000 per month, plus 
annual cost of living adjustments, upon retirement until death. X's 
deductions under section 404(a)(5) on paying A the $1,000 per month are 
recognized built-in loss. However, X's deductions under section 
404(a)(5) on paying A the annual cost of living adjustment are not 
recognized built-in loss because all events have not occurred that 
establish the fact of the liability to pay the amount, and the exact 
amount of the liability cannot be determined, as of the beginning of the 
recognition period.

    (d) Section 481(a) adjustments--(1) In general. Any section 481(a) 
adjustment taken into account in the recognition period is recognized 
built-in gain or loss to the extent the adjustment relates to items 
attributable to periods before the beginning of the recognition period 
under the principles for determining recognized built-in gain or loss in 
this section. The principles for determining recognized built-in gain or 
loss in this section include, for example, the accrual method rule under 
paragraph (b) of this section.
    (2) Examples. The rules of this paragraph (d) are illustrated by the 
following examples.

    Example 1. Omitted item attributable to prerecognition period. X is 
a C corporation that elects to become an S corporation effective January 
1, 1996. X improperly capitalizes repair costs and recovers the costs 
through depreciation of the related assets. In 1999, X properly changes 
to deducting repair costs as they are incurred. Under section 481(a), 
the basis of the related assets are reduced by an amount equal to the 
excess of the repair costs incurred before the year of change over the 
repair costs recovered through depreciation before the year of change. 
In addition, X has a negative section 481(a) adjustment equal to the 
basis reduction. Under paragraph (d)(1) of this section, the portion of 
X's negative section 481(a) adjustment relating to the repair costs 
incurred before the recognition period is recognized built-in loss 
because those repair costs are items attributable to periods before the 
beginning of the recognition period under the principles for determining 
recognized built-in gain or loss in this section.
    Example 2. Duplicated item attributable to prerecognition period. Y 
is a C corporation that elects to become an S corporation effective 
January 1, 1996. Y improperly uses an accrual method without regard to 
the economic performance rules of section 461(h) to account for worker's 
compensation claims. As a result, Y takes deductions when claims are 
filed. In 1999, Y properly changes to an accrual method with regard to 
the economic performance rules under section 461(h)(2)(C) for worker's 
compensation claims. As a result, Y takes deductions when claims are 
paid. The positive section 481(a) adjustment resulting from the change 
is equal to the amount of claims filed, but unpaid, before the year of 
change. Under paragraph (b)(2) of this section, the deduction allowed in 
the recognition period for claims filed, but unpaid, before the 
recognition period is recognized built-in loss because a deduction was 
allowed for those claims before the recognition period under an accrual 
method without regard to section 461(h)(2)(C). Under paragraph (d)(1) of 
this section, the portion of Y's positive section 481(a) adjustment 
relating to claims filed, but unpaid, before the recognition period is 
recognized built-in gain because those claims are items attributable to 
periods before the beginning of the recognition period under the 
principles for determining recognized built-in gain or loss in this 
section.

    (e) Section 995(b)(2) deemed distributions. Any item of income 
properly taken into account during the recognition period under section 
995(b)(2) is recognized built-in gain if the item results from a DISC 
termination or disqualification occurring before the beginning of the 
recognition period.
    (f) Discharge of indebtedness and bad debts. Any item of income or 
deduction properly taken into account during the first year of the 
recognition period as discharge of indebtedness income under section 
61(a)(12) or as a bad debt deduction under section 166 is recognized 
built-in gain or loss if the item arises from a debt owed by or to an S 
corporation at the beginning of the recognition period.
    (g) Completion of contract. Any item of income properly taken into 
account

[[Page 935]]

during the recognition period under the completed contract method (as 
described in Sec.  1.460-4(d)) where the corporation began performance 
of the contract before the beginning of the recognition period is 
recognized built-in gain if the item would have been included in gross 
income before the beginning of the recognition period under the 
percentage of completion method (as described in Sec.  1.460-4(b)). Any 
similar item of deduction is recognized built-in loss if the item would 
have been allowed as a deduction against gross income before the 
beginning of the recognition period under the percentage of completion 
method.
    (h) Installment method--(1) In general. If a corporation sells an 
asset before or during the recognition period and reports the income 
from the sale using the installment method under section 453 during or 
after the recognition period, that income is subject to tax under 
section 1374.
    (2) Limitation on amount subject to tax. For purposes of paragraph 
(h)(1) of this section, the taxable income limitation under Sec.  
1.1374-2(a)(2) is equal to the amount by which the S corporation's net 
recognized built-in gain would have been increased from the year of the 
sale to the earlier of the year the income is reported under the 
installment method or the last year of the recognition period, assuming 
all income from the sale had been reported in the year of the sale and 
all provisions of section 1374 applied. For purposes of the preceding 
sentence, if the corporation sells the asset before the recognition 
period, the income from the sale that is not reported before the 
recognition period is treated as having been reported in the first year 
of the recognition period.
    (3) Rollover rule. If the limitation in paragraph (h)(2) of this 
section applies, the excess of the amount reported under the installment 
method over the amount subject to tax under the limitation is treated as 
if it were reported in the succeeding taxable year(s), but only for 
succeeding taxable year(s) in the recognition period. The amount 
reported in the succeeding taxable year(s) under the preceding sentence 
is reduced to the extent that the amount not subject to tax under the 
limitation in paragraph (h)(2) of this section was not subject to tax 
because the S corporation had an excess of recognized built-in loss over 
recognized built-in gain in the taxable year of the sale and succeeding 
taxable year(s) in the recognition period.
    (4) Use of losses and section 1374 attributes. If income is reported 
under the installment method by an S corporation for a taxable year 
after the recognition period and the income is subject to tax under 
paragraph (h)(1) of this section, the S corporation's section 1374 
attributes may be used to the extent their use is allowed under all 
applicable provisions of the Code in determining the section 1374 tax. 
However, the S corporation's loss recognized for a taxable year after 
the recognition period that would have been recognized built-in loss if 
it had been recognized in the recognition period may not be used in 
determining the section 1374 tax.
    (5) Examples. The rules of this paragraph (h) are illustrated by the 
following examples.

    Example 1. Rollover rule. X is a C corporation that elects to become 
an S corporation effective January 1, 1996. On that date, X sells 
Blackacre with a basis of $0 and a value of $100,000 in exchange for a 
$100,000 note bearing a market rate of interest payable on January 1, 
2001. X does not make the election under section 453(d) and, therefore, 
reports the $100,000 gain using the installment method under section 
453. In the year 2001, X has income of $100,000 on collecting the note, 
unexpired C year attributes of $0, recognized built-in loss of $0, 
current losses of $100,000, and taxable income of $0. If X had reported 
the $100,000 gain in 1996, X's net recognized built-in gain from 1996 
through 2001 would have been $75,000 greater than otherwise. Under 
paragraph (h) of this section, X has $75,000 net recognized built-in 
gain subject to tax under section 1374. X also must treat the $25,000 
excess of the amount reported, $100,000, over the amount subject to tax, 
$75,000, as income reported under the installment method in the 
succeeding taxable year(s) in the recognition period, except to the 
extent X establishes that the $25,000 was not subject to tax under 
section 1374 in the year 2001 because X had an excess of recognized 
built-in loss over recognized built-in gain in the taxable year of the 
sale and succeeding taxable year(s) in the recognition period.
    Example 2. Use of losses. Y is a C corporation that elects to become 
an S corporation effective January 1, 1996. On that date, Y

[[Page 936]]

sells Whiteacre with a basis of $0 and a value of $250,000 in exchange 
for a $250,000 note bearing a market rate of interest payable on January 
1, 2006. Y does not make the election under section 453(d) and, 
therefore, reports the $250,000 gain using the installment method under 
section 453. In the year 2006, Y has income of $250,000 on collecting 
the note, unexpired C year attributes of $0, loss of $100,000 that would 
have been recognized built-in loss if it had been recognized in the 
recognition period, current losses of $150,000, and taxable income of 
$0. If Y had reported the $250,000 gain in 1996, X's net recognized 
built-in gain from 1996 through 2005 (that is, during the recognition 
period) would have been $225,000 greater than otherwise. Under paragraph 
(h) of this section, X has $225,000 net recognized built-in gain subject 
to tax under section 1374.
    Example 3. Use of section 1374 attribute. Z is a C corporation that 
elects to become an S corporation effective January 1, 1996. On that 
date, Z sells Greenacre with a basis of $0 and a value of $500,000 in 
exchange for a $500,000 note bearing a market rate of interest payable 
on January 1, 2011. Z does not make the election under section 453(d) 
and, therefore, reports the $500,000 gain using the installment method 
under section 453. In the year 2011, Z has income of $500,000 on 
collecting the note, loss of $0 that would have been recognized built-in 
loss if it had been recognized in the recognition period, current losses 
of $0, taxable income of $500,000, and a minimum tax credit of $60,000 
arising in 1995. None of Z's minimum tax credit is limited under 
sections 53(c) or 383. If Z had reported the $500,000 gain in 1996, Z's 
net recognized built-in gain from 1996 through 2005 (that is, during the 
recognition period) would have been $350,000 greater than otherwise. 
Under paragraph (h) of this section, Z has $350,000 net recognized 
built-in gain subject to tax under section 1374, a tentative section 
1374 tax of $122,500 ($350,000 x .35 = $122,500), and a section 1374 tax 
after using its minimum tax credit arising in 1995 of $62,250 ($122,500 
- $60,000 = $62,250).

    (i) Partnership interests--(1) In general. If an S corporation owns 
a partnership interest at the beginning of the recognition period or 
transfers property to a partnership in a transaction to which section 
1374(d)(6) applies during the recognition period, the S corporation 
determines the effect on net recognized built-in gain from its 
distributive share of partnership items as follows--
    (i) Step One: Apply the rules of section 1374(d) to the S 
corporation's distributive share of partnership items of income, gain, 
loss, or deduction included in income or allowed as a deduction under 
the rules of subchapter K to determine the extent to which it would have 
been treated as recognized built-in gain or loss if the partnership 
items had originated in and been taken into account directly by the S 
corporation (partnership 1374 items);
    (ii) Step Two: Determine the S corporation's net recognized built-in 
gain without partnership 1374 items;
    (iii) Step Three: Determine the S corporation's net recognized 
built-in gain with partnership 1374 items; and
    (iv) Step Four: If the amount computed under Step Three (paragraph 
(i)(1)(iii) of this section) exceeds the amount computed under Step Two 
(paragraph (i)(1)(ii) of this section), the excess (as limited by 
paragraph (i)(2)(i) of this section) is the S corporation's partnership 
RBIG, and the S corporation's net recognized built-in gain is the sum of 
the amount computed under Step Two (paragraph (i)(1)(ii) of this 
section) plus the partnership RBIG. If the amount computed under Step 
Two (paragraph (i)(1)(ii) of this section) exceeds the amount computed 
under Step Three (paragraph (i)(1)(iii) of this section), the excess (as 
limited by paragraph (i)(2)(ii) of this section) is the S corporation's 
partnership RBIL, and the S corporation's net recognized built-in gain 
is the remainder of the amount computed under Step Two (paragraph 
(i)(1)(ii) of this section) after subtracting the partnership RBIL.
    (2) Limitations--(i) Partnership RBIG. An S corporation's 
partnership RBIG for any taxable year may not exceed the excess (if any) 
of the S corporation's RBIG limitation over its partnership RBIG for 
prior taxable years. The preceding sentence does not apply if a 
corporation forms or avails of a partnership with a principal purpose of 
avoiding the tax imposed under section 1374.
    (ii) Partnership RBIL. An S corporation's partnership RBIL for any 
taxable year may not exceed the excess (if any) of the S corporation's 
RBIL limitation over its partnership RBIL for prior taxable years.
    (3) Disposition of partnership interest. If an S corporation 
disposes of its partnership interest, the amount that may be treated as 
recognized built-in gain

[[Page 937]]

may not exceed the excess (if any) of the S corporation's RBIG 
limitation over its partnership RBIG during the recognition period. 
Similarly, the amount that may be treated as recognized built-in loss 
may not exceed the excess (if any) of the S corporation's RBIL 
limitation over its partnership RBIL during the recognition period.
    (4) RBIG and RBIL limitations--(i) Sale of partnership interest. An 
S corporation's RBIG or RBIL limitation is the total of the following--
    (A) The amount that would be the amount realized if, at the 
beginning of the first day of the recognition period, the corporation 
had remained a C corporation and had sold its partnership interest (and 
any assets the corporation contributed to the partnership during the 
recognition period) at fair market value to an unrelated party; 
decreased by
    (B) The corporation's adjusted basis in the partnership interest 
(and any assets the corporation contributed to the partnership during 
the recognition period) at the time of the sale referred to in paragraph 
(i)(4)(i)(A) of this section; and increased or decreased by
    (C) The corporation's allocable share of the partnership's section 
481(a) adjustments at the time of the sale referred to in paragraph 
(i)(4)(i)(A) of this section.
    (ii) Amounts of limitations. If the result in paragraph (i)(4)(i) of 
this section is a positive amount, the S corporation has a RBIG 
limitation equal to that amount and a RBIL limitation of $0, but if the 
result in paragraph (i)(4)(i) of this section is a negative amount, the 
S corporation has a RBIL limitation equal to that amount and a RBIG 
limitation of $0.
    (5) Small interest exception--(i) In general. Paragraph (i)(1) of 
this section does not apply to a taxable year in the recognition period 
if the S corporation's partnership interest represents less than 10 
percent of the partnership's capital and profits at all times during the 
taxable year and prior taxable years in the recognition period, and the 
fair market value of the S corporation's partnership interest as of the 
beginning of the recognition period is less than $100,000.
    (ii) Contributed assets. For purposes of paragraph (i)(5)(i) of this 
section, if the S corporation contributes any assets to the partnership 
during the recognition period and the S corporation held the assets as 
of the beginning of the recognition period, the fair market value of the 
S corporation's partnership interest as of the beginning of the 
recognition period is determined as if the assets were contributed to 
the partnership before the beginning of the recognition period (using 
the fair market value of each contributed asset as of the beginning of 
the recognition period). The contribution does not affect whether 
paragraph (i)(5)(i) of this section applies for taxable years in the 
recognition period before the taxable year in which the contribution was 
made.
    (iii) Anti-abuse rule. Paragraph (i)(5)(i) of this section does not 
apply if a corporation forms or avails of a partnership with a principal 
purpose of avoiding the tax imposed under section 1374.
    (6) Section 704(c) gain or loss. Solely for purposes of section 
1374, an S corporation's section 704(c) gain or loss amount with respect 
to any asset is not reduced during the recognition period, except for 
amounts treated as recognized built-in gain or loss with respect to that 
asset under this paragraph.
    (7) Disposition of distributed partnership asset. If on the first 
day of the recognition period an S corporation holds an interest in a 
partnership that holds an asset and during the recognition period the 
partnership distributes the asset to the S corporation that thereafter 
disposes of the asset, the asset is treated as having been held by the S 
corporation on the first day of the recognition period and as having the 
fair market value and adjusted basis in the hands of the S corporation 
that it had in the hands of the partnership on that day.
    (8) Examples. The rules of this paragraph (i) are illustrated by the 
following examples.

    Example 1. Pre-conversion partnership interest. X is a C corporation 
that elects to become an S corporation on January 1, 1996. On that date, 
X owns a 50 percent interest in partnership P and P owns (among other 
assets) Blackacre with a basis of $25,000 and a

[[Page 938]]

value of $45,000. In 1996, P buys Whiteacre for $50,000. In 1999, P 
sells Blackacre for $55,000 and recognizes a gain of $30,000 of which 
$15,000 is included in X's distributive share. P also sells Whiteacre in 
1999 for $42,000 and recognizes a loss of $8,000 of which $4,000 is 
included in X's distributive share. Under this paragraph and section 
1374(d)(3), X's $15,000 gain is presumed to be recognized built-in gain 
and thus treated as a partnership 1374 item, but this presumption is 
rebutted if X establishes that P's gain would have been only $20,000 
($45,000-$25,000 = $20,000) if Blackacre had been sold on the first day 
of the recognition period. In such a case, only X's distributive share 
of the $20,000 built-in gain, $10,000, would be treated as a partnership 
1374 item. Under this paragraph and section 1374(d)(4), X's $4,000 loss 
is not treated as a partnership 1374 item because P did not hold 
Whiteacre on the first day of the recognition period.
    Example 2. Post-conversion contribution. Y is a C corporation that 
elects to become an S corporation on January 1, 1996. On that date, Y 
owns (among other assets) Blackacre with a basis of $100,000 and a value 
of $200,000. On January 1, 1998, when Blackacre has a basis of $100,000 
and a value of $200,000, Y contributes Blackacre to partnership P for a 
50 percent interest in P. On January 1, 2000, P sells Blackacre for 
$300,000 and recognizes a gain of $200,000 on the sale ($300,000-
$100,000 = $200,000). P is allocated $100,000 of the gain under section 
704(c), and another $50,000 of the gain for its fifty percent share of 
the remainder, for a total of $150,000. Under this paragraph and section 
1374(d)(3), if Y establishes that P's gain would have been only $100,000 
($200,000-$100,000 = $100,000) if Blackacre had been sold on the first 
day of the recognition period, Y would treat only $100,000 as a 
partnership 1374 item.
    Example 3. RBIG limitation of $100,000 or $50,000. X is a C 
corporation that elects to become an S corporation on January 1, 1996. 
On that date, X owns a 50 percent interest in partnership P with a RBIG 
limitation of $100,000 and a RBIL limitation of $0. P owns (among other 
assets) Blackacre with a basis of $50,000 and a value of $200,000. In 
1996, P sells Blackacre for $200,000 and recognizes a gain of $150,000 
of which $75,000 is included in X's distributive share and treated as a 
partnership 1374 item. X's net recognized built-in gain for 1996 
computed without partnership 1374 items is $35,000 and with partnership 
1374 items is $110,000. Thus, X has a partnership RBIG of $75,000 except 
as limited under paragraph (i)(2)(i) of this section. Because X's RBIG 
limitation is $100,000, X's partnership RBIG of $75,000 is not limited 
and X's net recognized built-in gain for the year is $110,000 ($35,000 + 
$75,000 = $110,000). However, if X had a RBIG limitation of $50,000 
instead of $100,000, X's partnership RBIG would be limited to $50,000 
under paragraph (i)(2)(i) of this section and X's net recognized built-
in gain would be $85,000 ($35,000 + $50,000 = $85,000).
    Example 4. RBIL limitation of $60,000 or $40,000. Y is a C 
corporation that elects to become an S corporation on January 1, 1996. 
On that date, Y owns a 50 percent interest in partnership P with a RBIG 
limitation of $0 and a RBIL limitation of $60,000. P owns (among other 
assets) Blackacre with a basis of $225,000 and a value of $125,000. In 
1996, P sells Blackacre for $125,000 and recognizes a loss of $100,000 
of which $50,000 is included in Y's distributive share and treated as a 
partnership 1374 item. Y's net recognized built-in gain for 1996 
computed without partnership 1374 items is $75,000 and with partnership 
1374 items is $25,000. Thus, Y has a partnership RBIL of $50,000 for the 
year except as limited under paragraph (i)(2)(ii) of this section. 
Because Y's RBIL limitation is $60,000, Y's partnership RBIL for the 
year is not limited and Y's net recognized built-in gain for the year is 
$25,000 ($75,000-$50,000 = $25,000). However, if Y had a RBIL limitation 
of $40,000 instead of $60,000, Y's partnership RBIL would be limited to 
$40,000 under paragraph (i)(2)(ii) of this section and Y's net 
recognized built-in gain for the year would be $35,000 ($75,000-$40,000 
= $35,000).
    Example 5. RBIG limitation of $0. (i) X is a C corporation that 
elects to become an S corporation on January 1, 1996. X owns a 50 
percent interest in partnership P with a RBIG limitation of $0 and a 
RBIL limitation of $25,000.
    (a) In 1996, P's partnership 1374 items are--
    (1) Ordinary income of $25,000; and
    (2) Capital gain of $75,000.
    (b) X itself has--
    (1) Recognized built-in ordinary income of $40,000; and
    (2) Recognized built-in capital loss of $90,000.
    (ii) X's net recognized built-in gain for 1996 computed without 
partnership 1374 items is $40,000 and with partnership 1374 items is 
$65,000 ($40,000 + $25,000 = $65,000). Thus, X's partnership RBIG is 
$25,000 for the year except as limited under paragraph (i)(2)(i) of this 
section. Because X's RBIG limitation is $0, X's partnership RBIG of 
$25,000 is limited to $0 and X's net recognized built-in gain for the 
year is $40,000.
    Example 6. RBIL limitation of $0. (i) Y is a C corporation that 
elects to become an S corporation on January 1, 1996. Y owns a 50 
percent interest in partnership P with a RBIG limitation of $60,000 and 
a RBIL limitation of $0.
    (a) In 1996, P's partnership 1374 items are--
    (1) Ordinary income of $25,000; and
    (2) Capital loss of $90,000.
    (b) Y itself has--
    (1) recognized built-in ordinary income of $40,000; and

[[Page 939]]

    (2) recognized built-in capital gain of $75,000.
    (ii) Y's net recognized built-in gain for 1996 computed without 
partnership 1374 items is $115,000 ($40,000 + $75,000 = $115,000) and 
with partnership 1374 items is $65,000 ($40,000 + $25,000 = $65,000). 
Thus, Y's partnership RBIL is $50,000 for the year except as limited 
under paragraph (i)(2)(ii) of this section. Because Y's RBIL limitation 
is $0, Y's partnership RBIL of $50,000 is limited to $0 and Y's net 
recognized built-in gain is $115,000.
    Example 7. Disposition of partnership interest. X is a C corporation 
that elects to become an S corporation on January 1, 1996. On that date, 
X owns a 50 percent interest in partnership P with a RBIG limitation of 
$200,000 and a RBIL limitation of $0. P owns (among other assets) 
Blackacre with a basis of $20,000 and a value of $140,000. In 1996, P 
sells Blackacre for $140,000 and recognizes a gain of $120,000 of which 
$60,000 is included in X's distributive share and treated as a 
partnership 1374 item. X's net recognized built-in gain for 1996 
computed without partnership 1374 items is $95,000 and with partnership 
1374 items is $155,000. Thus, X has a partnership RBIG of $60,000. In 
1999, X sells its entire interest in P for $350,000 and recognizes a 
gain of $250,000. Under paragraph (i)(3) of this section, X's recognized 
built-in gain on the sale is limited by its RBIG limitation to $140,000 
($200,000-$60,000 = $140,000).
    Example 8. Section 704(c) case. Y is a C corporation that elects to 
become an S corporation on January 1, 1996. On that date, Y contributes 
Asset 1, 5-year property with a value of $40,000 and a basis of $0, and 
an unrelated party contributes $40,000 in cash, each for a 50 percent 
interest in partnership P. The partnership adopts the traditional method 
under Sec.  1.704-3(b). If P sold Asset 1 for $40,000 immediately after 
it was contributed by Y, P's $40,000 gain would be allocated to Y under 
section 704(c). Instead, Asset 1 is sold by P in 1999 for $36,000 and P 
recognizes gain of $36,000 ($36,000-$0 = $36,000) on the sale. However, 
because book depreciation of $8,000 per year has been taken on Asset 1 
in 1996, 1997, and 1998, Y is allocated only $16,000 of P's $36,000 gain 
($40,000-(3 x $8,000) = ($16,000-$0) = $16,000) under section 704(c). 
The remaining $20,000 of P's $36,000 gain ($36,000-$16,000 = $20,000) is 
allocated 50 percent to each partner under section 704(b). Thus, a total 
of $26,000 ($16,000 + $10,000 = $26,000) of P's $36,000 gain is 
allocated to Y. However, under paragraph (i)(6) of this section, Y 
treats $36,000 as a partnership 1374 item on P's sale of Asset 1.
    Example 9. Disposition of distributed partnership asset. X is a C 
corporation that elects to become an S corporation on January 1, 1996. 
On that date, X owns a fifty percent interest in partnership P and P 
owns (among other assets) Blackacre with a basis of $20,000 and a value 
of $40,000. On January 1, 1998, P distributes Blackacre to X, when 
Blackacre has a basis of $20,000 and a value of $50,000. Under section 
732(a)(1), X has a transferred basis of $20,000 in Blackacre. On January 
1, 1999, X sells Blackacre for $60,000 and recognizes a gain of $40,000. 
Under paragraph (i)(7) of this section and section 1374(d)(3), X has 
recognized built-in gain from the sale of $20,000, the amount of built-
in gain in Blackacre on the first day of the recognition period.

[T.D. 8579, 59 FR 66464, Dec. 27, 1994, as amended by T.D. 8995. 67 FR 
34610, May 15, 2002]



Sec.  1.1374-5  Loss carryforwards.

    (a) In general. The loss carryforwards allowed as deductions against 
net recognized built-in gain under section 1374(b)(2) are allowed only 
to the extent their use is allowed under the rules applying to C 
corporations. Any other loss carryforwards, such as charitable 
contribution carryforwards under section 170(d)(2), are not allowed as 
deductions against net recognized built-in gain.
    (b) Example. The rules of this section are illustrated by the 
following example.

    Example: Section 382 limitation. X is a C corporation that has an 
ownership change under section 382(g)(1) on January 1, 1994. On that 
date, X has a fair market value of $500,000, NOL carryforwards of 
$400,000, and a net unrealized built-in gain under section 382(h)(3)(A) 
of $0. Assume X's section 382 limitation under section 382(b)(1) is 
$40,000. X elects to become an S corporation on January 1, 1998. On that 
date, X has NOL carryforwards of $240,000 (having used $160,000 of its 
pre-change net operating losses in its 4 preceding taxable years) and a 
section 1374 net unrealized built-in gain of $250,000. In 1998, X has 
net recognized built-in gain of $100,000. X may use $40,000 of its NOL 
carryforwards as a deduction against its $100,000 net recognized built-
in gain, because X's section 382 limitation is $40,000.

[T.D. 8579, 59 FR 66469, Dec. 27, 1994]



Sec.  1.1374-6  Credits and credit carryforwards.

    (a) In general. The credits and credit carryforwards allowed as 
credits against the section 1374 tax under section 1374(b)(3) are 
allowed only to the extent their use is allowed under the rules applying 
to C corporations. Any other credits or credit carryforwards,

[[Page 940]]

such as foreign tax credits under section 901, are not allowed as 
credits against the section 1374 tax.
    (b) Limitations. The amount of business credit carryforwards and 
minimum tax credit allowed against the section 1374 tax are subject to 
the limitations described in section 38(c) and section 53(c), 
respectively, as modified by this paragraph. The tentative tax 
determined under paragraph (a)(3) of Sec.  1.1374-1 is treated as the 
regular tax liability described in sections 38(c)(1) and 53(c)(1), and 
as the net income tax and net regular tax liability described in section 
38(c)(1). The tentative minimum tax described in section 55(b) is 
determined using the rate of tax applicable to corporations and without 
regard to any alternative minimum tax foreign tax credit described in 
that section and by treating the net recognized built-in gain determined 
under Sec.  1.1374-2, modified to take into account the adjustments of 
sections 56 and 58 applicable to corporations and the preferences of 
section 57, as the alternative minimum taxable income described in 
section 55(b)(2).
    (c) Examples. The rules of this section are illustrated by the 
following examples.

    Example 1. Business credit carryforward. X is a C corporation that 
elects to become an S corporation effective January 1, 1996. On that 
date, X has a $500,000 business credit carryforward from a C year and 
Asset 1 with a fair market value of $400,000, a basis for regular tax 
purposes of $95,000, and a basis for alternative minimum tax purposes of 
$150,000. In 1996, X has net recognized built-in gain of $305,000 from 
selling Asset 1 for $400,000. Thus, X's tentative tax under paragraph 
(a)(3) of Sec.  1.1374-1 and regular tax liability under paragraph (b) 
of this section is $106,750 ($400,000-$95,000 = $305,000 x .35= 
$106,750, assuming a 35 percent tax rate). Also, X's tentative minimum 
tax determined under paragraph (b) of this section is $47,000 [$400,000-
$150,000 = $250,000-$15,000 ($40,000 corporate exemption amount -$25,000 
phase-out = $15,000) = $235,000 x .20 = $47,000, assuming a 20 percent 
tax rate]. Thus, the business credit limitation under section 38(c) is 
$59,750 [$106,750-$47,000 (the greater of $47,000 or $20,438 (.25 x 
$81,750 ($106,750-$25,000 = $81,750))) = $59,750]. As a result, X's 
section 1374 tax is $47,000 ($106,750-$59,750= $47,000) for 1996 and X 
has $440,250 ($500,000-$59,750 = $440,250) of business credit 
carryforwards for succeeding taxable years.
    Example 2. Minimum tax credit. Y is a C corporation that elects to 
become an S corporation effective January 1, 1996. On that date, Asset1 
has a fair market value of $5,000,000, a basis for regular tax purposes 
of $4,000,000, and a basis for alternative minimum tax purposes of 
$4,750,000. Y also has a minimum tax credit of $310,000 from 1995. Y has 
no other assets, no net operating or capital loss carryforwards, and no 
business credit carryforwards. In 1996, Y's only transaction is the sale 
of Asset 1 for $5,000,000. Therefore, Y has net recognized built-in 
gain in 1996 of $1,000,000 ($5,000,000-$4,000,000 = $1,000,000) and a 
tentative tax under paragraph (a)(3) of Sec.  1.1374-1 of $350,000 
($1,000,000 x .35 = $350,000, assuming a 35 percent tax rate). Also, Y's 
tentative minimum tax determined under paragraph (b) of this section is 
$47,000 [$5,000,000-$4,750,000 = $250,000-$15,000 ($40,000 corporate 
exemption amount -$25,000 phase-out = $15,000) = $235,000 x .20 = 
$47,000, assuming a 20 percent tax rate]. Thus, Y may use its minimum 
tax credit in the amount of $303,000 ($350,000-$47,000 = $303,000) to 
offset its section 1374 tentative tax. As a result, Y's section 1374 tax 
is $47,000 ($350,000-$303,000 = $47,000) in 1996 and Y has a minimum tax 
credit attributable to years for which Y was a C corporation of $7,000 
($310,000-$303,000 = $7,000).

[T.D. 8579, 59 FR 66469, Dec. 27, 1994]



Sec.  1.1374-7  Inventory.

    (a) Valuation. The fair market value of the inventory of an S 
corporation on the first day of the recognition period equals the amount 
that a willing buyer would pay a willing seller for the inventory in a 
purchase of all the S corporation's assets by a buyer that expects to 
continue to operate the S corporation's business. For purposes of the 
preceding sentence, the buyer and seller are presumed not to be under 
any compulsion to buy or sell and to have reasonable knowledge of all 
relevant facts.
    (b) Identity of dispositions. The inventory method used by an S 
corporation for tax purposes must be used to identify whether the 
inventory it disposes of during the recognition period is inventory it 
held on the first day of that period. Thus, a corporation using the LIFO 
method does not dispose of inventory it held on the first day of the 
recognition period unless the carrying value of its inventory for a 
taxable year during that period is less than the carrying value of its 
inventory on the

[[Page 941]]

first day of the recognition period (determined using the LIFO method as 
described in section 472). However, if a corporation changes its method 
of accounting for inventory (for example, from the FIFO method to the 
LIFO method or from the LIFO method to the FIFO method) with a principal 
purpose of avoiding the tax imposed under section 1374, it must use its 
former method to identify its dispositions of inventory.

[T.D. 8579, 59 FR 66469, Dec. 27, 1994]



Sec.  1.1374-8  Section 1374(d)(8) transactions.

    (a) In general. If any S corporation acquires any asset in a 
transaction in which the S corporation's basis in the asset is 
determined (in whole or in part) by reference to a C corporation's basis 
in the assets (or any other property) (a section 1374(d)(8) 
transaction), section 1374 applies to the net recognized built-in gain 
attributable to the assets acquired in any section 1374(d)(8) 
transaction.
    (b) Effective date of section 1374(d)(8). Section 1374(d)(8) applies 
to any section 1374(d)(8) transaction, as defined in paragraph (a)(1) of 
this section, that occurs on or after December 27, 1994, without regard 
to the date of the corporation's election to be an S corporation under 
section 1362.
    (c) Separate determination of tax. For purposes of the tax imposed 
under section 1374(d)(8), a separate determination of tax is made with 
respect to the assets the S corporation acquires in one section 
1374(d)(8) transaction from the assets the S corporation acquires in 
another section 1374(d)(8) transaction and from the assets the 
corporation held when it became an S corporation. Thus, an S 
corporation's section 1374 attributes when it became an S corporation 
may only be used to reduce the section 1374 tax imposed on dispositions 
of assets the S corporation held at that time. Similarly, an S 
corporation's section 1374 attributes acquired in a section 1374(d)(8) 
transaction may only be used to reduce a section 1374 tax imposed on 
dispositions of assets the S corporation acquired in the same 
transaction. If an S corporation makes QSub elections under section 
1361(b)(3) for a tiered group of subsidiaries effective on the same day, 
see Sec.  1.1361-4(b)(2).
    (d) Taxable income limitation. For purposes of paragraph (a) of this 
section, an S corporation's taxable income limitation under Sec.  
1.1374-2(a)(2) for any taxable year is allocated between or among each 
of the S corporation's separate determinations of net recognized built-
in gain for that year (determined without regard to the taxable income 
limitation) based on the ratio of each of those determinations to the 
sum of all of those determinations.
    (e) Examples. The rules of this section are illustrated by the 
following examples.

    Example 1. Separate determination of tax. (i) X is a C corporation 
that elected to become an S corporation effective January 1, 1986 
(before section 1374 was amended in the Tax Reform Act of 1986). X has a 
net operating loss carryforward of $20,000 arising in 1985 when X was a 
C corporation. On January 1, 1996, Y (an unrelated C corporation) merges 
into X in a transaction to which section 368(a)(1)(A) applies. Y has no 
loss carryforwards, credits, or credit carryforwards. The assets X 
acquired from Y are subject to tax under section 1374 and have a net 
unrealized built-in gain of $150,000.
    (ii) In 1996, X has a pre-limitation amount of $50,000 on 
dispositions of assets acquired from Y and a taxable income limitation 
of $100,000 (because only one group of assets is subject to section 
1374, there is no allocation of the taxable income limitation). As a 
result, X has a net recognized built-in gain on those assets of $50,000. 
X's $20,000 net operating loss carryforward may not be used as a 
deduction against its $50,000 net recognized built-in gain on the assets 
X acquired from Y. Therefore, X has a section 1374 tax of $17,500 
($50,000 x .35 = $17,500, assuming a 35 percent tax rate) for its 1996 
taxable year.
    Example 2. Allocation of taxable income limitation. (i) Y is a C 
corporation that elects to become an S corporation effective January 1, 
1996. The assets Y holds when it becomes an S corporation have a net 
unrealized built-in gain of $5,000. Y has no loss carryforwards, 
credits, or credit carryforwards. On January 1, 1997, Z (an unrelated C 
corporation) merges into Y in a transaction to which section 
368(a)(1)(A) applies. Z has no loss carryforwards, credits, or credit 
carryforwards. The assets Y acquired from Z are subject to tax under 
section 1374 and have a net unrealized built-in gain of $80,000.
    (ii) In 1997, Y has a pre-limitation amount on the assets it held 
when it became an S corporation of $15,000, a pre-limitation amount on 
the assets Y acquired from Z of

[[Page 942]]

$15,000, and a taxable income limitation of $10,000. However, because 
the assets Y held on becoming an S corporation have a net unrealized 
built-in gain of $5,000, its net recognized built-in gain on those 
assets is limited to $5,000 before taking into account the taxable 
income limitation. Y's taxable income limitation of $10,000 is allocated 
between the assets Y held on becoming an S corporation and the assets Y 
acquired from Z for purposes of determining the net recognized built-in 
gain from each pool of assets. Thus, Y's net recognized built-in gain on 
the assets Y held on becoming an S corporation is $2,500 [$10,000 x 
($5,000/$20,000) = $2,500]. Y's net recognized built-in gain on the 
assets Y acquired from Z is $7,500 [$10,000 x ($15,000/$20,000) = 
$7,500]. Therefore, Y has a section 1374 tax of $3,500 [($2,500 + 
$7,500) x .35 = $3,500, assuming a 35 percent tax rate] for its 1997 
taxable year.

[T.D. 8579, 59 FR 66469, Dec. 27, 1994, as amended by T.D. 8869, 65 FR 
3856, Jan. 25, 2000; T.D. 9170, 69 FR 76614, Dec. 22, 2004; T.D. 9236, 
70 FR 75731, Dec. 21, 2005]



Sec.  1.1374-9  Anti-stuffing rule.

    If a corporation acquires an asset before or during the recognition 
period with a principal purpose of avoiding the tax imposed under 
section 1374, the asset and any loss, deduction, loss carryforward, 
credit, or credit carryforward attributable to the asset is disregarded 
in determining the S corporation's pre-limitation amount, taxable income 
limitation, net unrealized built-in gain limitation, deductions against 
net recognized built-in gain, and credits against the section 1374 tax.

[T.D. 8579, 59 FR 66470, Dec. 27, 1994]



Sec.  1.1374-10  Effective date and additional rules.

    (a) In general. Sections 1.1374-1 through 1.1374-9, other than Sec.  
1.1374-3(b) and (c) Examples 2 through 4, apply for taxable years ending 
on or after December 27, 1994, but only in cases where the S 
corporation's return for the taxable year is filed pursuant to an S 
election or a section 1374(d)(8) transaction occurring on or after 
December 27, 1994. Section 1.1374-3(b) and (c) Examples 2 through 4 
apply to section 1374(d)(8) transactions that occur in taxable years 
beginning after February 23, 2005. In addition, an S corporation may 
apply Sec.  1.1374-3(b) and (c) Examples 2 through 4 to section 
1374(d)(8) transactions that occur in taxable years beginning on or 
before February 23, 2005, if the S corporation (and any predecessors or 
successors) and all affected shareholders file original or amended 
returns that are consistent with these provisions for taxable years of 
the S corporation during the recognition period of the pool of assets 
the net unrealized built-in gain of which would be adjusted pursuant to 
those provisions that are not closed as of the first date after February 
23, 2005, that the S corporation files an original or amended return. 
For purposes of this section, affected shareholders means all 
shareholders who received distributive shares of S corporation items in 
such taxable years. However, the Commissioner may, in appropriate 
circumstances, permit taxpayers to apply these provisions even if all 
affected shareholders cannot file consistent returns. In addition, for 
this purpose, a predecessor of an S corporation is a corporation that 
transfers its assets to the S corporation in a transaction to which 
section 381 applies. A successor of an S corporation is a corporation to 
which the S corporation transfers its assets in a transaction to which 
section 381 applies.
    (b) Additional rules. This paragraph (b) provides rules applicable 
to certain S corporations, assets, or transactions to which Sec. Sec.  
1.1374-1 through 1.1374-9 do not apply.
    (1) Certain transfers to partnerships. If a corporation transfers an 
asset to a partnership in a transaction to which section 721(a) applies 
and the transfer is made in contemplation of an S election or during the 
recognition period, section 1374 applies on a disposition of the asset 
by the partnership as if the S corporation had disposed of the asset 
itself. This paragraph (b)(1) applies as of the effective date of 
section 1374, unless the recognition period with respect to the 
contributed asset is pursuant to an S election or a section 1374(d)(8) 
transaction occurring on or after December 27, 1994.
    (2) Certain inventory dispositions. For purposes of section 
1374(d)(2)(A), the inventory method used by the taxpayer for tax 
purposes (FIFO, LIFO, etc.) must be used to identify whether goods 
disposed of following conversion to S

[[Page 943]]

corporation status were held by the corporation at the time of 
conversion. Thus, for example, a corporation using the LIFO inventory 
method will not be subject to the built-in gain tax with respect to 
sales of inventory except to the extent that a LIFO layer existing prior 
to the beginning of the first taxable year as an S corporation is 
invaded after the beginning of that year. This paragraph (b)(2) applies 
as of the effective date of section 1374, unless the recognition period 
with respect to the inventory is pursuant to an S election or a section 
1374(d)(8) transaction occurring on or after December 27, 1994.
    (3) Certain contributions of built-in loss assets. If a built-in 
loss asset (that is, an asset with an adjusted tax basis in excess of 
its fair market value) is contributed to a corporation within 2 years 
before the earlier of the beginning of its first taxable year as an S 
corporation, or the filing of its S election, the loss inherent in the 
asset will not reduce net unrealized built-in gain, as defined in 
section 1374(d)(1), unless the taxpayer demonstrates a clear and 
substantial relationship between the contributed property and the 
conduct of the corporation's current or future business enterprises. 
This paragraph (b)(3) applies as of the effective date of section 1374, 
unless the recognition period with respect to the contributed asset is 
pursuant to an S election or a section 1374(d)(8) transaction occurring 
on or after December 27, 1994.
    (4) Certain installment sales--(i) In general. If a taxpayer sells 
an asset either prior to or during the recognition period and recognizes 
income either during or after the recognition period from the sale under 
the installment method, the income will, when recognized, be taxed under 
section 1374 to the extent it would have been so taxed in prior taxable 
years if the selling corporation had made the election under section 
453(d) not to report the income under the installment method. For 
purposes of determining the extent to which the income would have been 
subject to tax if the section 453(d) election had not been made, the 
taxable income limitation of section 1374(d)(2)(A)(ii) and the built-in 
gain carryover rule of section 1374(d)(2)(B) will be taken into account. 
This paragraph (b)(4) applies for installment sales occurring on or 
after March 26, 1990, and before December 27, 1994.
    (ii) Examples. The rules of this paragraph (b)(4) are illustrated by 
the following examples.

    Example 1. In year 1 of the recognition period under section 1374, a 
corporation realizes a gain of $100,000 on the sale of an asset with 
built-in gain. The corporation is to receive full payment for the asset 
in year 11. Because the corporation does not make an election under 
section 453(d), all $100,000 of the gain from the sale is reported under 
the installment method in year 11. If the corporation had made an 
election under section 453(d) with respect to the sale, the gain would 
have been recognized in year 1 and, taking into account the 
corporation's income and gains from other sources, application of the 
taxable income limitation of section 1374(d)(2)(A)(ii) and the built-in 
gain carryover rule of section 1374(d)(2)(B) would have resulted in 
$40,000 of the gain being subject to tax during the recognition period 
under section 1374. Therefore, $40,000 of the gain recognized in year 11 
is subject to tax under section 1374.
    Example 2. In year 1 of the recognition period under section 1374, a 
corporation realizes a gain of $100,000 on the sale of an asset with 
built-in gain. The corporation is to receive full payment for the asset 
in year 6. Because the corporation does not make an election under 
section 453(d), all $100,000 of the gain from the sale is reported under 
the installment method in year 6. If the corporation had made an 
election under section 453(d) with respect to the sale, the gain would 
have been recognized in year 1 and, taking into account the 
corporation's income and gains from other sources, application of the 
taxable income limitation of section 1374(d)(2)(A)(ii) and the built-in 
gain carryover rule of section 1374(d)(2)(B) would have resulted in all 
of the gain being subjected to tax under section 1374 in years 1 through 
5. Therefore, notwithstanding that the taxable income limitation of 
section 1374(d)(2)(A)(ii) might otherwise limit the taxation of the gain 
recognized in year 6, the entire $100,000 of gain will be subject to tax 
under section 1374 when it is recognized in year 6.
    (c) Termination and re-election of S corporation status--(1) In 
general. For purposes of section 633(d)(8) of the Tax Reform Act of 
1986, as amended, any reference to an election to be an S corporation 
under section 1362 shall be treated as a reference to the corporation's 
most recent election to be an S corporation under section 1362. This 
paragraph (c) applies for taxable years

[[Page 944]]

beginning after December 22, 2004, without regard to the date of the 
corporation's most recent election to be an S corporation under section 
1362.
    (2) Example. The following example illustrates the rules of this 
paragraph (c):

    Example. (i) Effective January 1, 1988, X, a C corporation that is a 
qualified corporation under section 633(d) of the Tax Reform Act of 
1986, as amended, elects to be an S corporation under section 1362. 
Effective January 1, 1990, X revokes its S status and becomes a C 
corporation. On January 1, 2004, X again elects to be an S corporation 
under section 1362. X disposes of assets in 2006, 2007, and 2008, 
recognizing gain.
    (ii) X is not eligible for treatment under the transition rule of 
section 633(d)(8) of the Tax Reform Act of 1986, as amended, with 
respect to these assets. Accordingly, X is subject to section 1374, as 
amended by the Tax Reform Act of 1986 and the Technical and 
Miscellaneous Revenue Act of 1988, and the 10-year recognition period 
begins on January 1, 2004.
    (iii) To the extent the gain that X recognizes on the asset sales in 
2006, 2007, and 2008 reflects built-in gain inherent in such assets in 
X's hands on January 1, 2004, such gain is subject to tax under section 
1374 as amended by the Tax Reform Act of 1986 and the Technical and 
Miscellaneous Revenue Act of 1988.

[T.D. 8579, 59 FR 66470, Dec. 27, 1994, as amended by T.D. 9170, 69 FR 
76614, Dec. 22, 2004; T.D. 9180, 70 FR 8728, Feb. 23, 2005; T.D. 9236, 
70 FR 75731, Dec. 21, 2005]



Sec.  1.1375-1  Tax imposed when passive investment income of corporation 
having subchapter C earnings and profits exceed 25 percent of gross receipts.

    (a) General rule. For taxable years beginning after 1981, section 
1375(a) imposes a tax on the income of certain S corporations that have 
passive investment income. In the case of a taxable year beginning 
during 1982, an electing small business corporation may elect to have 
the rules under this section not apply. See the regulations under 
section 1362 for rules on the election. For purposes of this section, 
the term S corporation shall include an electing small business 
corporation under prior law. This tax shall apply to an S corporation 
for a taxable year if the S corporation has--
    (1) Subchapter C earnings and profits at the close of such taxable 
year, and
    (2) Gross receipts more than 25 percent of which are passive 
investment income


If the S corporation has no subchapter C earnings and profits at the 
close of the taxable year (because, for example, such earnings and 
profits were distributed in accordance with section 1368), the tax shall 
not be imposed even though the S corporation has passive investment 
income for the taxable year. If the tax is imposed, the tax shall be 
computed by multiplying the excess net passive income (as defined in 
paragraph (b) of this section) by the highest rate of tax specified in 
section 11(b).
    (b) Definitions--(1) Excess net passive income--(i) In general. The 
term excess net passive income is defined in section 1375(b)(1), and can 
be expressed by the following formula:
[GRAPHIC] [TIFF OMITTED] TC14NO91.101

Where:

ENPI = excess net passive income
NPI = net passive income
PII = passive investment income
GR = total gross receipts

    (ii) Limitation. The amount of the excess net passive income for any 
taxable year shall not exceed the corporation's taxable income for the 
taxable year (determined in accordance with section 1374(d) and Sec.  
1.1374-1(d)).
    (2) Net passive income. The term net passive income means--
    (i) Passive investment income, reduced by
    (ii) The deductions allowable under chapter 1 of the Internal 
Revenue Code of 1954 which are directly connected (within the meaning of 
paragraph (b)(3) of this section) with the production of such income 
(other than deductions allowable under section 172 and part VIII of 
subchapter B).
    (3) Directly connected--(i) In general. For purposes of paragraph 
(b)(2)(ii) of this section to be directly connected with the production 
of income, an item of deduction must have proximate and primary 
relationship to the income. Expenses, depreciation, and similar items 
attributable solely to such income qualify for deduction.

[[Page 945]]

    (ii) Allocation of deduction. If an item of deduction is 
attributable (within the meaning of paragraph (b)(3)(i) of this section) 
inpart to passive investment income and in part to income other than 
passive investment income, the deduction shall be allocated between the 
two types of items on a reasonable basis. The portion of any deduction 
so allocated to passive investment income shall be treated as 
proximately and primarily related to such income.
    (4) Other definitions. The terms subchapter C earnings and profits, 
passive investment income, and gross receipts shall have the same 
meaning given these terms in section 1362(d)(3) and the regulations 
thereunder.
    (c) Special rules--(1) Disallowance of credits. No credit is allowed 
under part IV of subchapter A of chapter 1 of the Code (other than 
section 34) against the tax imposed by section 1375(a) and this section.
    (2) Coordination with section 1374. If any gain--
    (i) Is taken into account in determining passive income for purposes 
of this section, and
    (ii) Is taken into account under section 1374,

the amount of such gain taken into account under section 1374(b) and 
Sec.  1.1374-1(b) (1) and (2) in determining the amount of tax shall be 
reduced by the portion of the excess net passive income for the taxable 
year which is attributable (on a pro rata basis) to such gain. For 
purposes of the preceding sentence, the portion of excess net passive 
income for the taxable year which is attributable to such capital gain 
is equal to the amount determined by multiplying the excess net passive 
income by the following fraction:
[GRAPHIC] [TIFF OMITTED] TC14NO91.102

Where:

NCG = net capital gain
NPI = net passive income.
E = Expense attributable to net capital gain.

    (d) Waiver of tax in certain cases--(1) In general. If an S 
corporation establishes to the satisfaction of the Commissioner that--
    (i) It determined in good faith that it had no subchapter C earnings 
and profits at the close of the taxable year, and
    (ii) During a reasonable period of time after it was determined that 
it did have subchapter C earnings and profits at the close of such 
taxable year such earnings and profits were distributed,


the Commissioner may waive the tax imposed by section 1375 for such 
taxable year. The S corporation has the burden of establishing that 
under the relevant facts and circumsances the Commissioner should waive 
the tax.
    For example, if an S corporation establishes that in good faith and 
using due diligence it determined that it had no subchapter C earnings 
and profits at the close of a taxable year, but it was later determined 
on audit that it did have subchapter C earnings and profits at the close 
of such taxable year, and if the corporation establishes that it 
distributed such earnings and profits within a reasonable time after the 
audit, it may be appropriate for the Commissioner to waive the tax on 
passive income for such taxable year.
    (2) Corporation's request for a waiver. A request for waiver of the 
tax imposed by section 1375 shall be made in writing to the district 
director and shall contain all relevant facts to establish that the 
requirements of paragraph (d)(1) of this section are met. Such request 
shall contain a description of how and on what date the S corporation in 
good faith and using due diligence determined that it had no subchapter 
C earnings and profits at the close of the taxable year, a description 
of how and on what date it was determined that the S corporation had 
subchapter C earnings and profits at the close of the year and a 
description (including dates) of any steps taken to distribute such 
earnings and profits. If the earnings and profits have not yet been 
distributed, the request shall contain a timetable for distribution and 
an explanation of why such timetable is reasonable. On the date the 
waiver is to become effective, all subchapter C earnings and profits 
must have been distributed.
    (e) Reduction in pass-thru for tax imposed on excess net passive 
income. See section 1366(f)(3) for a special rule reducing each item of 
the corporation's

[[Page 946]]

passive investment income for purposes of section 1366(a) if a tax is 
imposed on the corporation under section 1375.
    (f) Examples. The following examples illustrate the principles of 
this section:

    Example 1. Assume Corporation M, an S corporation, has for its 
taxable year total gross receipts of $200,000, passive investment income 
of $100,000, $60,000 of which is interest income, and expenses directly 
connected with the production of such interest income in the amount of 
$10,000. Assume also that at the end of the taxable year Corporation M 
has subchapter C earnings and profits. Since more than 25 percent of the 
Corporation M's total gross receipts are passive investment income, and 
since Corporation M has subchapter C earnings and profits at the end of 
the taxable year, Corporation M will be subject to the tax imposed by 
section 1375. The amount of excess net passive investment income is 
$45,000 ($90,000 x (50,000 / 100,000)). Assume that the other $40,000 of 
passive investment income is attributable to net capital gain and that 
there are no expenses directly connected with such gain. Under these 
facts, $20,000 of the excess net passive income is attributable to the 
net capital gain ($45,000 x ($40,000 / $90,000)). Accordingly, the 
amount of gain taken into account under section 1374(b)(1) and the 
taxable income of Corporation M under section 1374(b)(2) shall be 
reduced by $20,000.
    Example 2. Assume an S corporation with subchapter C earnings and 
profits has tax-exempt income of $400, its only passive income, gross 
receipts of $1,000 and taxable income of $250 and there are no expenses 
associated with the tax-exempt income. The corporation's excess net 
income for the taxable year would total $150 (400 x ((400 - 250 / 400)). 
This amount is subject to the tax imposed by section 1375, 
notwithstanding that such amount is otherwise tax-exempt income.

[T.D. 8104, 51 FR 34203, Sept. 26, 1986; 52 FR 9162, Mar. 23, 1987. 
Redesignated and amended by T.D. 8419, 57 FR 22653, May 29, 1992]



Sec.  1.1377-0  Table of contents.

    The following table of contents is provided to facilitate the use of 
Sec. Sec.  1.1377-1 through 1.1377-3:

                     Sec.  1.1377-1 Pro rata share.

    (a) Computation of pro rata shares.
    (1) In general.
    (2) Special rules.
    (i) Days on which stock has not been issued.
    (ii) Determining shareholder for day of stock disposition.
    (iii) Shareholder trust conversions.
    (b) Election to terminate year.
    (1) In general.
    (2) Affected shareholders.
    (3) Effect of the terminating election.
    (i) In general.
    (ii) Due date of S corporation return.
    (iii) Taxable year of inclusion by shareholder.
    (iv) S corporation that is a partner in a partnership.
    (4) Determination of whether an S shareholder's entire interest has 
terminated.
    (5) Time and manner of making a terminating election.
    (i) In general.
    (ii) Affected shareholders required to consent.
    (iii) More than one terminating election.
    (c) Examples.

           Sec.  1.1377-2 Post-termination transition period.

    (a) In general.
    (b) Special rules for post-termination transition period.
    (c) Determination defined.
    (d) Date a determination becomes effective.
    (1) Determination under section 1313(a).
    (2) Written agreement.
    (3) Implied agreement.

                     Sec.  1.1377-3 Effective date.

[T.D. 8696, 61 FR 67455, Dec. 23, 1996, as amended by T.D. 8994, 67 FR 
34401, May 14, 2002]



Sec.  1.1377-1  Pro rata share.

    (a) Computation of pro rata shares--(1) In general. For purposes of 
subchapter S of chapter 1 of the Internal Revenue Code and this section, 
each shareholder's pro rata share of any S corporation item described in 
section 1366(a) for any taxable year is the sum of the amounts 
determined with respect to the shareholder by assigning an equal portion 
of the item to each day of the S corporation's taxable year, and then 
dividing that portion pro rata among the shares outstanding on that day. 
See paragraph (b) of this section for rules pertaining to the 
computation of each shareholder's pro rata share when an election is 
made under section 1377(a)(2) to treat the taxable year of an S 
corporation as if it consisted of two taxable years in the case of a 
termination of a shareholder's entire interest in the corporation. See 
Sec.  1.460-4(k)(3)(iv)(D) for rules relating to the computation of the 
shareholders' pro rata share of S corporation's income or loss from a 
contract accounted for

[[Page 947]]

under a long-term contract method of accounting.
    (2) Special rules--(i) Days on which stock has not been issued. 
Solely for purposes of determining a shareholder's pro rata share of an 
item for a taxable year under section 1377(a) and this section, the 
beneficial owners of the corporation are treated as the shareholders of 
the corporation for any day on which the corporation has not issued any 
stock.
    (ii) Determining shareholder for day of stock disposition. A 
shareholder who disposes of stock in an S corporation is treated as the 
shareholder for the day of the disposition. A shareholder who dies is 
treated as the shareholder for the day of the shareholder's death.
    (iii) Shareholder trust conversions. If, during the taxable year of 
an S corporation, a trust that is an eligible shareholder of the S 
corporation converts from a trust described in section 1361(c)(2)(A)(i), 
(ii), (iii), or (v) for the first part of the year to a trust described 
in a different subpart of section 1361(c)(2)(A)(i), (ii), or (v) for the 
remainder of the year, the trust's share of the S corporation items is 
allocated between the two types of trusts. The first day that a 
qualified subchapter S trust (QSST) or an electing small business trust 
(ESBT) is treated as an S corporation shareholder is the effective date 
of the QSST or ESBT election. Upon the conversion, the trust is not 
treated as terminating its entire interest in the S corporation for 
purposes of paragraph (b) of this section, unless the trust was a trust 
described in section 1361(c)(2)(A)(ii) or (iii) before the conversion.
    (b) Election to terminate year--(1) In general. If a shareholder's 
entire interest in an S corporation is terminated during the S 
corporation's taxable year and the corporation and all affected 
shareholders agree, the S corporation may elect under section 1377(a)(2) 
and this paragraph (b) (terminating election) to apply paragraph (a) of 
this section to the affected shareholders as if the corporation's 
taxable year consisted of two separate taxable years, the first of which 
ends at the close of the day on which the shareholder's entire interest 
in the S corporation is terminated. If the event resulting in the 
termination of the shareholder's entire interest also constitutes a 
qualifying disposition as described in Sec.  1.1368-1(g)(2)(i), the 
election under Sec.  1.1368-1(g)(2) cannot be made. An S corporation may 
not make a terminating election if the cessation of a shareholder's 
interest occurs in a transaction that results in a termination under 
section 1362(d)(2) of the corporation's election to be an S corporation. 
(See section 1362(e)(3) for an election to have items assigned to each 
short taxable year under normal tax accounting rules in the case of a 
termination of a corporation's election to be an S corporation.) A 
terminating election is irrevocable and is effective only for the 
terminating event for which it is made.
    (2) Affected shareholders. For purposes of the terminating election 
under section 1377(a)(2) and paragraph (b) of this section, the term 
affected shareholders means the shareholder whose interest is terminated 
and all shareholders to whom such shareholder has transferred shares 
during the taxable year. If such shareholder has transferred shares to 
the corporation, the term affected shareholders includes all persons who 
are shareholders during the taxable year.
    (3) Effect of the terminating election--(i) In general. An S 
corporation that makes a terminating election for a taxable year must 
treat the taxable year as separate taxable years for all affected 
shareholders for purposes of allocating items of income (including tax-
exempt income), loss, deduction, and credit; making adjustments to the 
accumulated adjustments account, earnings and profits, and basis; and 
determining the tax effect of a distribution. An S corporation that 
makes a terminating election must assign items of income (including tax-
exempt income), loss, deduction, and credit to each deemed separate 
taxable year using its normal method of accounting as determined under 
section 446(a).
    (ii) Section 163(j). If a terminating election is made to treat the 
S corporation's taxable year as consisting of separate taxable years, 
for purposes of section 163(j), a separate limitation (as defined in 
Sec.  1.163(j)-1(b)(36)) will apply to each separate taxable year. Any 
items

[[Page 948]]

necessary to determine the amount of business interest expense (as 
defined in Sec.  1.163(j)-1(b)(3)) that are deducted in each separate 
taxable year must be allocated between the separate taxable years in 
accordance with an allocation methodology provided in this section.
    (iii) Due date of S corporation return. A terminating election does 
not affect the due date of the S corporation's return required to be 
filed under section 6037(a) for a taxable year (determined without 
regard to a terminating election).
    (iv) Taxable year of inclusion by shareholder. A terminating 
election does not affect the taxable year in which an affected 
shareholder must take into account the affected shareholder's pro rata 
share of the S corporation's items of income, loss, deduction, and 
credit.
    (v) S corporation that is a partner in a partnership. A terminating 
election by an S corporation that is a partner in a partnership is 
treated as a sale or exchange of the corporation's entire interest in 
the partnership for purposes of section 706(c) (relating to closing the 
partnership taxable year), if the taxable year of the partnership ends 
after the shareholder's interest is terminated and within the taxable 
year of the S corporation (determined without regard to any terminating 
election) for which the terminating election is made.
    (4) Determination of whether an S shareholder's entire interest has 
terminated. For purposes of the terminating election under section 
1377(a)(2) and paragraph (b) of this section, a shareholder's entire 
interest in an S corporation is terminated on the occurrence of any 
event through which a shareholder's entire stock ownership in the S 
corporation ceases, including a sale, exchange, or other disposition of 
all of the stock held by the shareholder; a gift under section 102(a) of 
all the shareholder's stock; a spousal transfer under section 1041(a) of 
all the shareholder's stock; a redemption, as defined in section 317(b), 
of all the shareholder's stock, regardless of the tax treatment of the 
redemption under section 302; and the death of the shareholder. A 
shareholder's entire interest in an S corporation is not terminated if 
the shareholder retains ownership of any stock (including an interest 
treated as stock under Sec.  1.1361-1(l)) that would result in the 
shareholder continuing to be considered a shareholder of the corporation 
for purposes of section 1362(a)(2). Thus, in determining whether a 
shareholder's entire interest in an S corporation has been terminated, 
any interest held by the shareholder as a creditor, employee, director, 
or in any other non-shareholder capacity is disregarded.
    (5) Time and manner of making a terminating election--(i) In 
general. An S corporation makes a terminating election by attaching a 
statement to its timely filed original or amended return required to be 
filed under section 6037(a) (that is, a Form 1120S) for the taxable year 
during which a shareholder's entire interest is terminated. A single 
election statement may be filed by the S corporation for all terminating 
elections for the taxable year. The election statement must include--
    (A) A declaration by the S corporation that it is electing under 
section 1377(a)(2) and this paragraph (b) to treat the taxable year as 
if it consisted of two separate taxable years;
    (B) Information setting forth when and how the shareholder's entire 
interest was terminated (for example, a sale or gift);
    (C) The signature on behalf of the S corporation of an authorized 
officer of the corporation under penalties of perjury, except that for 
taxable years beginning after December 31, 2002, the election statement 
described in Sec.  1.1377-1(b)(5)(i) of this section shall be verified, 
and the requirement of this paragraph (b)(5)(i)(C) is satisfied, by the 
signature on the Form 1120S filed by the S corporation.
    (D) A statement by the corporation that the corporation and each 
affected shareholder consent to the S corporation making the terminating 
election.
    (ii) Affected shareholders required to consent. For purposes of 
paragraph (b)(5)(i)(D) of this section, a shareholder of the S 
corporation for the taxable year is a shareholder as described in 
section 1362(a)(2). For example, the person who under Sec.  1.1362-
6(b)(2) must consent to a corporation's S election in certain special 
cases is the person who

[[Page 949]]

must consent to the terminating election. In addition, an executor or 
administrator of the estate of a deceased affected shareholder may 
consent to the terminating election on behalf of the deceased affected 
shareholder.
    (iii) More than one terminating election. A shareholder whose entire 
interest in an S corporation is terminated in an event for which a 
terminating election was made is not required to consent to a 
terminating election made with respect to a subsequent termination 
within the same taxable year unless the shareholder is an affected 
shareholder with respect to the subsequent termination.
    (c) Examples. The following examples illustrate the provisions of 
this section:

    Example 1. Shareholder's pro rata share in the case of a partial 
disposition of stock. (i) On January 6, 1997, X incorporates as a 
calendar year corporation, issues 100 shares of common stock to each of 
A and B, and files an election to be an S corporation for its 1997 
taxable year. On July 24, 1997, B sells 50 shares of X stock to C. Thus, 
in 1997, A owned 50 percent of the outstanding shares of X on each day 
of X's 1997 taxable year, B owned 50 percent on each day from January 6, 
1997, to July 24, 1997 (200 days), and 25 percent from July 25, 1997, to 
December 31, 1997 (160 days), and C owned 25 percent from July 25, 1997, 
to December 31, 1997 (160 days).
    (ii) Because B's entire interest in X is not terminated when B sells 
50 shares to C on July 24, 1997, X cannot make a terminating election 
under section 1377(a)(2) and paragraph (b) of this section for B's sale 
of 50 shares to C. Although B's sale of 50 shares to C is a qualifying 
disposition under Sec.  1.1368-1(g)(2)(i), X does not make an election 
to terminate its taxable year under Sec.  1.1368-1(g)(2). During its 
1997 taxable year, X has nonseparately computed income of $720,000.
    (iii) For each day in X's 1997 taxable year, A's daily pro rata 
share of X's nonseparately computed income is $1,000 ($720,000/360 days 
x 50%). Thus, A's pro rata share of X's nonseparately computed income 
for 1997 is $360,000 ($1,000 x 360 days). B's daily pro rata share of 
X's nonseparately computed income is $1,000 ($720,000/360 x 50%) for the 
first 200 days of X's 1997 taxable year, and $500 ($720,000/360 x 25%) 
for the following 160 days in 1997. Thus, B's pro rata share of X's 
nonseparately computed income for 1997 is $280,000 (($1,000 x 200 days) 
+ ($500 x 160 days)). C's daily pro rata share of X's nonseparately 
computed income is $500 ($720,000/360 x 25%) for 160 days in 1997. Thus, 
C's pro rata share of X's nonseparately computed income for 1997 is 
$80,000 ($500 x 160 days).
    Example 2. Shareholder's pro rata share when an S corporation makes 
a terminating election under section 1377(a)(2). (i) On January 6, 1997, 
X incorporates as a calendar year corporation, issues 100 shares of 
common stock to each of A and B, and files an election to be an S 
corporation for its 1997 taxable year. On July 24, 1997, B sells B's 
entire 100 shares of X stock to C. With the consent of B and C, X makes 
an election under section 1377(a)(2) and paragraph (b) of this section 
for the termination of B's entire interest arising from B's sale of 100 
shares to C. As a result of the election, the pro rata shares of B and C 
are determined as if X's taxable year consisted of two separate taxable 
years, the first of which ends on July 24, 1997, the date B's entire 
interest in X terminates. Because A is not an affected shareholder as 
defined by section 1377(a)(2)(B) and paragraph (b)(2) of this section, 
the treatment as separate taxable years does not apply to A.
    (ii) During its 1997 taxable year, X has nonseparately computed 
income of $720,000. Under X's normal method of accounting, $200,000 of 
the $720,000 of nonseparately computed income is allocable to the period 
of January 6, 1997, through July 24, 1997 (the first deemed taxable 
year), and the remaining $520,000 is allocable to the period of July 25, 
1997, through December 31, 1997 (the second deemed taxable year).
    (iii) B's pro rata share of the $200,000 of nonseparately computed 
income for the first deemed taxable year is determined by assigning the 
$200,000 of nonseparately computed income to each day of the first 
deemed taxable year ($200,000/200 days = $1,000 per day). Because B held 
50% of X's authorized and issued shares on each day of the first deemed 
taxable year, B's daily pro rata share for each day of the first deemed 
taxable year is $500 ($1,000 per day x 50%). Thus, B's pro rata share of 
the $200,000 of nonseparately computed income for the first deemed 
taxable year is $100,000 ($500 per day x 200 days). B must report this 
amount for B's taxable year with or within which X's full taxable year 
ends (December 31, 1997).
    (iv) C's pro rata share of the $520,000 of nonseparately computed 
income for the second deemed taxable year is determined by assigning the 
$520,000 of nonseparately computed income to each day of the second 
deemed taxable year ($520,000/160 days = $3,250 per day). Because C held 
50% of X's authorized and issued shares on each day of the second deemed 
taxable year, C's daily pro rata shares for each day of the second 
deemed taxable year is $1,625 ($3,250 per day x 50%). Therefore, C's pro 
rata share of the $520,000 of nonseparately computed income is $260,000 
($1,625 per day x 160 days). C must report this amount for C's taxable 
year with or within which X's full taxable year ends (December 31, 
1997).

[[Page 950]]

    Example 3. Effect of conversion of a qualified subchapter S trust 
(QSST) to an electing small business trust (ESBT). (i) On January 1, 
2003, Trust receives stock of S corporation. Trust's current income 
beneficiary makes a timely QSST election under section 1361(d)(2), 
effective January 1, 2003. Subsequently, the trustee and current income 
beneficiary of Trust elect, pursuant to Sec.  1.1361-1(j)(12), to 
terminate the QSST election and convert to an ESBT, effective July 1, 
2004. The taxable year of S corporation is the calendar year. In 2004, 
Trust's pro rata share of S corporation's nonseparately computed income 
is $100,000.
    (ii) For purposes of computing the income allocable to the QSST and 
to the ESBT, Trust is treated as a QSST through June 30, 2004, and Trust 
is treated as an ESBT beginning July 1, 2004. Pursuant to section 
1377(a)(1), the pro rata share of S corporation income allocated to the 
QSST is $49,727 ($100,000 x 182 days/366 days), and the pro rata share 
of S corporation income allocated to the ESBT is $50,273 ($100,000 x 184 
days/366 days).

[T.D. 8696, 61 FR 67456, Dec. 23, 1996, as amended by T.D. 8994, 67 FR 
34401, May 14, 2002; T.D. 9100, 68 FR 70706, Dec. 19, 2003; T.D. 9137, 
69 FR 42559, July 16, 2004; T.D. 9300, 71 FR 71043, Dec. 8, 2006; T.D. 
9905, 85 FR 56843, Sept. 14, 2020]



Sec.  1.1377-2  Post-termination transition period.

    (a) In general. For purposes of subchapter S of chapter 1 of the 
Internal Revenue Code (Code) and this section, the term post-termination 
transition period means--
    (1) The period beginning on the day after the last day of the 
corporation's last taxable year as an S corporation and ending on the 
later of--
    (i) The day which is 1 year after such last day; or
    (ii) The due date for filing the return for the last taxable year as 
an S corporation (including extensions);
    (2) The 120-day period beginning on the date of any determination 
pursuant to an audit of the taxpayer which follows the termination of 
the corporation's election and which adjusts a subchapter S item of 
income, loss, or deduction of the corporation arising during the S 
period (as defined in section 1368(e)(2)); and
    (3) The 120-day period beginning on the date of a determination that 
the corporation's election under section 1362(a) had terminated for a 
previous taxable year.
    (b) Special rules for post-termination transition period. Pursuant 
to section 1377(b)(1) and paragraph (a)(1) of this section, a post-
termination transition period arises the day after the last day that an 
S corporation was in existence if a C corporation acquires the assets of 
the S corporation in a transaction to which section 381(a)(2) applies. 
However, if an S corporation acquires the assets of another S 
corporation in a transaction to which section 381(a)(2) applies, a post-
termination transition period does not arise. (See Sec.  1.1368-2(d)(2) 
for the treatment of the acquisition of the assets of an S corporation 
by another S corporation in a transaction to which section 381(a)(2) 
applies.)
    (c) Determination defined. For purposes of section 1377(b)(1) and 
paragraph (a) of this section, the term determination means--
    (1) A determination as defined in section 1313(a);
    (2) A written agreement between the corporation and the Commissioner 
(including a statement acknowledging that the corporation's election to 
be an S corporation terminated under section 1362(d)) that the 
corporation failed to qualify as an S corporation;
    (3) For a corporation subject to the audit and assessment provisions 
of subchapter C of chapter 63 of subtitle A of the Code, the expiration 
of the period specified in section 6226 for filing a petition for 
readjustment of a final S corporation administrative adjustment finding 
that the corporation failed to qualify as an S corporation, provided 
that no petition was timely filed before the expiration of the period; 
and
    (4) For a corporation not subject to the audit and assessment 
provisions of subchapter C of chapter 63 of subtitle A of the Code, the 
expiration of the period for filing a petition under section 6213 for 
the shareholder's taxable year for which the Commissioner has made a 
finding that the corporation failed to qualify as an S corporation, 
provided that no petition was timely filed before the expiration of the 
period.
    (d) Date a determination becomes effective--(1) Determination under 
section

[[Page 951]]

1313(a). A determination under paragraph (c)(1) of this section becomes 
effective on the date prescribed in section 1313 and the regulations 
thereunder.
    (2) Written agreement. A determination under paragraph (c)(2) of 
this section becomes effective when it is signed by the district 
director having jurisdiction over the corporation (or by another Service 
official to whom authority to sign the agreement is delegated) and by an 
officer of the corporation authorized to sign on its behalf. Neither the 
request for a written agreement nor the terms of the written agreement 
suspend the running of any statute of limitations.
    (3) Implied agreement. A determination under paragraph (c) (3) or 
(4) of this section becomes effective on the day after the date of 
expiration of the period specified under section 6226 or 6213, 
respectively.

[T.D. 8696, 61 FR 67457, Dec. 23, 1996, as amended by T.D. 9914, 85 FR 
66484, Oct. 20, 2020]



Sec.  1.1377-3  Applicability dates.

    (a) In general. Except as otherwise provided in this section, 
Sec. Sec.  1.1377-1 and 1.1377-2 apply to taxable years of an S 
corporation beginning after December 31, 1996.
    (b) Certain conversions. Section 1.1377-1(a)(2)(iii) and (c)(3) 
(Example 3) are applicable for taxable years beginning on and after May 
14, 2002.
    (c) Special treatment of distributions of money during post-
termination transition period--(1) In general. Except as provided in 
paragraph (c)(2) of this section, Sec.  1.1377-2(b) applies to taxable 
years beginning after October 20, 2020. For taxable years beginning on 
or before October 20, 2020, see Sec.  1.1377-2(b) as contained in 26 CFR 
part 1, revised April 1, 2020.
    (2) Taxable years beginning on or before October 20, 2020. A 
corporation may choose to apply Sec.  1.1377-2(b) to taxable years 
beginning on or before October 20, 2020 and with respect to which the 
period described in section 6501(a) has not expired. If a corporation 
makes the choice described in the previous sentence, all shareholders of 
the corporation must report consistently, and the corporation must adopt 
Sec. Sec.  1.481-5, 1.1371-1, 1.1371-2, if an ETSC, and 1.1377-2(b) in 
their entity and continue to apply those rules in their entirety for the 
corporation's subsequent taxable years.

[T.D. 9914, 85 FR 66484, Oct. 20, 2020]



Sec.  1.1378-1  Taxable year of S corporation.

    (a) In general. The taxable year of an S corporation must be a 
permitted year. A permitted year is the required taxable year (i.e., a 
taxable year ending on December 31), a taxable year elected under 
section 444, a 52-53-week taxable year ending with reference to the 
required taxable year or a taxable year elected under section 444, or 
any other taxable year for which the corporation establishes a business 
purpose to the satisfaction of the Commissioner under section 442.
    (b) Adoption of taxable year. An electing S corporation may adopt, 
in accordance with Sec.  1.441-1(c), its required taxable year, a 
taxable year elected under section 444, or a 52-53-week taxable year 
ending with reference to its required taxable year or a taxable year 
elected under section 444 without the approval of the Commissioner. See 
Sec.  1.441-1. An electing S corporation that wants to adopt any other 
taxable year, must establish a business purpose and obtain the approval 
of the Commissioner under section 442.
    (c) Change in taxable year--(1) Approval required. An S corporation 
or electing S corporation that wants to change its taxable year must 
obtain the approval of the Commissioner under section 442 or make an 
election under section 444. However, an S corporation or electing S 
corporation may obtain automatic approval for certain changes, including 
a change to its required taxable year, pursuant to administrative 
procedures published by the Commissioner.
    (2) Short period tax return. An S corporation or electing S 
corporation that changes its taxable year must make its return for a 
short period in accordance with section 443, but must not annualize the 
corporation's taxable income.
    (d) Retention of taxable year. In certain cases, an S corporation or 
electing S corporation will be required to

[[Page 952]]

change its taxable year unless it obtains the approval of the 
Commissioner under section 442, or makes an election under section 444, 
to retain its current taxable year. For example, a corporation using a 
June 30 fiscal year that elects to be an S corporation and, as a result, 
is required to use the calendar year must obtain the approval of the 
Commissioner to retain its current fiscal year.
    (e) Procedures for obtaining approval or making a section 444 
election--(1) In general. See Sec.  1.442-1(b) for procedures to obtain 
the approval of the Commissioner (automatically or otherwise) to adopt, 
change, or retain a taxable year. See Sec. Sec.  1.444-1T and 1.444-2T 
for qualifications, and 1.444-3T for procedures, for making an election 
under section 444.
    (2) Special rules for electing S corporations. An electing S 
corporation that wants to adopt, change to, or retain a taxable year 
other than its required taxable year must request approval of the 
Commissioner on Form 2553, ``Election by a Small Business Corporation,'' 
when the election to be an S corporation is filed pursuant to section 
1362(b) and Sec.  1.1362-6. See Sec.  1.1362-6(a)(2)(i) for the manner 
of making an election to be an S corporation. If such corporation 
receives permission to adopt, change to, or retain a taxable year other 
than its required taxable year, the election to be an S corporation will 
be effective. Denial of the request renders the election ineffective 
unless the corporation agrees that, in the event the request to adopt, 
change to, or retain a taxable year other than its required taxable year 
is denied, it will adopt, change to, or retain its required taxable year 
or, if applicable, make an election under section 444.
    (f) Effective date. The rules of this section are applicable for 
taxable years ending on or after May 17, 2002.

[T.D. 8996, 67 FR 35024, May 17, 2002]

             Section 1374 Before the Tax Reform Act of 1986



Sec.  1.1374-1A  Tax imposed on certain capital gains.

    (a) General rule. Except as otherwise provided in paragraph (c) of 
this section, if for a taxable year beginning after 1982 of an S 
corporation--
    (1) The net capital gain of such corporation exceeds $25,000, and
    (2) The net capital gain of such corporation exceeds 50 percent of 
its taxable income (as defined in paragraph (d) of this section) for 
such year, and
    (3) The taxable income of such corporation (as defined in paragraph 
(d) of this section) for such year exceeds $25,000,

section 1374 imposes a tax (computed under paragraph (b) of this 
section) on the income of such corporation. The tax is imposed on the S 
corporation and not on the shareholders.
    (b) Amount of tax. The amount of tax shall be the lower of--
    (1) An amount equal to the tax, determined as provided in section 
1201(a)(2), on the amount by which the net capital gain of the 
corporation for the taxable year exceeds $25,000, or
    (2) An amount equal to the tax which would be imposed by section 11 
on the taxable income of the corporation (as defined in paragraph (d) of 
this section) for the taxable year were it not an S corporation.

No credit shall be allowable under part IV of subchapter A of chapter 1 
of the Internal Revenue Code of 1954 (other than under section 34) 
against the tax imposed by section 1374(a) and this section. See section 
1375(c)(2) and Sec.  1.1375-1(c)(2) for a special rule that reduces the 
amount of the net capital gain of the corporation for purposes of this 
paragraph (b) in cases where a net capital gain is taxed as excess net 
passive income under section 1375. See section 1374(c)(3) and paragraph 
(c)(1)(ii) of this section for a special rule that limits the amount of 
tax on property with a substituted basis in certain cases.
    (c) Exceptions to taxation--(1) New corporations and corporations 
with election in effect for 3 immediately preceding years--(i) In 
general. If an S corporation would be subject to the tax imposed by 
section 1374 for a taxable year pursuant to paragraph (a) of this 
section, the corporation shall, nevertheless, not be subject to such tax 
for such year, if:
    (A) The election under section 1362(a) which is in effect with 
respect to such corporation for such year has been in

[[Page 953]]

effect for the corporation's three immediately preceding taxable years, 
or
    (B) An election under section 1362(a) has been in effect with 
respect to such corporation for each of its taxable years for which it 
has been in existence, unless there is a net capital gain for the 
taxable year which is attributable to property with a substituted basis 
within the meaning of paragraph (c)(1)(iii) of this section.
    (ii) Amount of tax on net capital gain attributable to property with 
a substituted basis. If for a taxable year of an S corporation either 
paragraph (c)(1)(i) (A) or (B) of this section is satisfied, but the S 
corporation has a net capital gain for such taxable year which is 
attributable to property with a substituted basis (within the meaning of 
paragraph (c)(1)(iii) of this section), then paragraph (a) of this 
section shall apply for the taxable year, but the amount of tax 
determined under paragraph (b) of this section shall not exceed a tax, 
determined as provided in section 1201 (a), on the net capital gain 
attributable to property with a substituted basis.
    (iii) Property with substituted basis. For purposes of this section, 
the term property with a substituted basis means:
    (A) Property acquired by a corporation (the acquiring corporation) 
during the period beginning 36 months before the first day of the 
acquiring corporation's taxable year and ending on the last day of such 
year;
    (B) The basis of such property in the hands of the acquiring 
corporation is determined in whole or in part by reference to the basis 
of any property in the hands of another corporation; and
    (C) Such other corporation was not an S corporation throughout the 
period beginning the later of:
    (1) 36 months before the first day of the acquiring corporation's 
taxable year, or
    (2) The time such other corporation came into existence,

and ending on the date such other corporation transferred the property, 
the basis of which is used to determine, in whole or in part, the basis 
of the property in the hands of the acquiring corporation. An S 
corporation and any predecessor corporation shall not be treated as one 
corporation for purposes of this paragraph (c) (1).
    (iv) Existence of a corporation. For purposes of this section, a 
corporation shall not be considered to be in existence for any month 
which precedes the first month in which such corporation has 
shareholders or acquires assets or begins business, whichever is first 
to occur.
    (v) References to prior law included. For purposes of this paragraph 
(c), the term S corporation shall include an electing small business 
corporation under prior subchapter S law, and the term election under 
section 1362 (a) shall include an election under section 1372 of prior 
subchapter S law.
    (iv) Examples. The provisions of this paragraph may be illustrated 
by the following examples:

    Example 1. M Corporation was organized and began business in 1977. M 
subsequently made an election under section 1362 (a) which was effective 
for its 1984 taxable year. If such election does not terminate under 
section 1362 for its taxable years 1984, 1985, and 1986, M is not 
subject to the tax imposed by section 1374 for its taxable year 1987, or 
for any subsequent year for which such election remains in effect, 
unless it has, for any such year, an excess of net long-term capital 
gain over net short-term capital loss attributable to property with a 
substituted basis. If there is such an excess for any such year, and the 
requirements of paragraph (a) of this section are met, M will be subject 
to the tax for such year. If there is no such excess for any year after 
1986, M will not be subject to the tax for any such year even though the 
requirements of paragraph (a) of this section are met.
    Example 2. N corporation was organized in 1983, and was an S 
corporation for its first taxable year, N is not subject to the tax 
imposed by section 1374 for 1983, or for any subsequent year for which 
its orginal election under section 1362 (a) has not terminated under 
section 1362(d), unless, for any such year, it has an excess of net 
long-term capital gain over net short-term capital loss attributable to 
property with a substituted basis and the requirements of paragraph (a) 
of this section are met.

    (2) Treatment of certain gains of options and commodities dealers--
(i) Exclusion of certain capital gains. For purposes of this section, 
the net capital gain of any options dealer or commodities dealer shall 
be determined by not taking into account any gain or loss (in the normal 
course of the taxpayer's activity of

[[Page 954]]

dealing in or trading section 1256 contracts) from any section 1256 
contract or property related to such a contract.
    (ii) Definitions. For purposes of this paragraph (c)(2)--
    (A) Options dealer. The term options dealer has the meaning given to 
such term by section 1256(g)(8).
    (B) Commodities dealer. The term commodities dealer means a person 
who is actively engaged in trading section 1256 contracts and is 
registered with a domestic board of trade which is designated as a 
contract market by the Commodities Futures Trading Commission.
    (C) Section 1256 contracts. The term section 1256 contracts has the 
meaning given to such term by section 1256(b).
    (iii) Effective dates--(A) In general. Except as otherwise provided 
in this paragraph (c)(2)(iii), this paragraph (c)(2) shall apply to 
positions established after July 18, 1984, in taxable years ending after 
such date.
    (B) Special rule for options on regulated futures contracts. In the 
case of any option with respect to a regulated futures contract (within 
the meaning of section 1256), this paragraph (c)(2) shall apply to 
positions established after October 31, 1983, in taxable years ending 
after such date.
    (C) Elections with respect to property held on or before July 18, 
1984. See Sec. Sec.  1.1256 (h)-1T and 1.1256(h)-2T for rules concerning 
an election to have this paragraph (c)(2) apply to certain property held 
on or before July 18, 1984.
    (d) Determination of taxable income--(1) General rule. For purposes 
of this section, taxable income of the corporation shall be determined 
under section 63(a) as if the corporation were a C corporation rather 
than an S corporation, except that the following deductions shall not 
apply in the computation--
    (i) The deduction allowed by section 172 (relating to net operating 
loss deduction), and
    (ii) The deductions allowed by part VIII of subchapter B (other than 
the deduction allowed by section 248, relating to organization 
expenditures).

For any taxable year in which a tax under this section is imposed on an 
S corporation, the S corporation shall attach a Form 1120 completed in 
accordance with this paragraph (d) and the instructions to Form 1120S to 
its tax return filed for such taxable year.
    (2) Special rule for net capital gains taxed as excess net passive 
income under section 1375. See section 1375 (c) (2) and Sec.  1.1375-
1(c)(2) for a special rule that reduces the taxable income of the 
corporation for purposes of section 1374(b)(2) and Sec.  1.1374-1(b)(2) 
in cases where a net capital gain is taxed as excess net passive income 
under section 1375.
    (e) Reduction in pass-thru for tax imposed on capital gain. See 
section 1366(f)(2) for a special rule reducing the S corporation's long-
term capital gains and the corporation's gain from sales or exchanges of 
property described in section 1231 for purposes of section 1366(a) by an 
amount of tax imposed under section 1374 and this section.
    (f) Examples. The following examples illustrate the principles of 
this section and assume that a tax will not be imposed under section 
1375:

    Example 1. Corporation M is an S corporation for its taxable year 
beginning January 1, 1983. For 1983, M has an excess of net long-term 
capital gain over net short-term capital loss in the amount of $30,000. 
However, its taxable income for the year is only $20,000 as a result of 
other deductions in excess of other income. Thus, although the excess of 
the net long-term capital gain over the net short-term capital loss 
exceeds $25,000 and also exceeds 50 percent of taxable income, M is not 
subject to the tax imposed by section 1374 for 1983 because its taxable 
income does not exceed $25,000.
    Example 2. Corporation N is an S Corporation for its 1983 taxable 
year. For 1983, N has an excess of net long-term capital gain over net 
short-term capital loss in the amount of $30,000, and taxable income of 
$65,000. Thus, although N's net capital gain ($30,000) exceeds $25,000, 
it does not exceed 50 percent of the corporation's taxable income for 
the year (50 percent of $65,000, or $32,500), and therefore N is not 
subject to the tax imposed by section 1374 for such year.
    Example 3. Assume that Corporation O, an S corporation, is subject 
to the tax imposed by section 1374 for its taxable year 1983. For 1983, 
O has an excess of net long-term capital gain over net short-term 
capital loss in the amount of $73,000, and taxable income within the 
meaning of section 1374, which includes capital gains and losses, of 
$100,000. The amount of tax computed under paragraph (b)(1) of this 
section is 28 percent of $48.00 ($73,000--$25,000), or $13,440. Since 
this is lower than the amount computed under paragraph (b)(2) of this 
section, which is

[[Page 955]]

$25,750 ($3,750 + $4,500 + $7,500 + $10,000), $13,440 is the amount of 
tax imposed by section 1374.
    Example 4. Assume that in example (3) the taxable income of O for 
1983 is $35,000. This results from an excess of deductions over income 
with respect to items which were not included in determining the excess 
of the net long-term capital gain over the net short-term capital loss. 
In such case, the amount of tax, computed under paragraph (b)(2) of this 
section, is $5,550. Since this is lower than the amount computed under 
paragraph (b)(1) of this section, $5,550 is the amount of tax imposed by 
section 1374.
    Example 5. Corporation P, an S corporation, for its taxable year 
1983 has an excess of net long-term capital gain over net short-term 
capital loss in the amount of $65,000 and has taxable income of $80,000. 
P's election under section 1362 has been in effect for its three 
immediately preceding taxable years, but P, nevertheless, is subject to 
the tax imposed by section 1374 for 1983 since it has an excess of net 
long-term capital gain over net short-term capital loss (in the amount 
of $20,000) attributable to property with a substituted basis. The tax 
computed under paragraph (b)(1) of this section, $11,200 (28 percent of 
$40,000 ($65,000-$25,000)), is less than the tax computed under 
paragraph (b)(2) of this section, $17,750. However, under the limitation 
provided in paragraph (c) of this section which is applicable in this 
factual situation, the tax imposed by section 1374 for 1983 may not 
exceed $5,600 (28 percent of $20,000, the excess of net long-term 
capital gain over net short-term capital loss attributable to property 
with a substituted basis).

[T.D. 8104, 51 FR 34201, Sept. 26, 1986; 52 FR 9162, Mar. 23, 1987. 
Redesignated and amended by T.D. 8419, 57 FR 22653, May 29, 1992. 
Further redesignated by T.D. 8579, 59 FR 66462, Dec. 27, 1994]

                     Cooperatives and Their Patrons



Tax Treatment of Cooperatives--Table of Contents





Sec.  1.1381-1  Organizations to which part applies.

    (a) In general. Except as provided in paragraph (b) of this section, 
part I, subchapter T, chapter 1 of the Code, applies to any corporation 
operating on a cooperative basis and allocating amounts to patrons on 
the basis of the business done with or for such patrons.
    (b) Exceptions. Part I of such subchapter T does not apply to:
    (1) Any organization which is exempt from income taxes under chapter 
1 of the Code (other than an exempt farmers' cooperative described in 
section 521);
    (2) Any organization which is subject to the provisions of part II 
(section 591 and following), subchapter H, chapter 1 of the Code 
(relating to mutual savings banks, etc.);
    (3) Any organization which is subject to the provisions of 
subchapter L (section 801 and following), chapter 1 of the Code 
(relating to insurance companies); or
    (4) Any organization which is engaged in generating, transmitting, 
or otherwise furnishing electric energy, or which provides telephone 
service, to persons in rural areas. The terms rural areas and telephone 
service shall have the meaning assigned to them in section 5 of the 
Rural Electrification Act of 1936, as amended (7 U.S.C. 924).

[T.D. 6643, 28 FR 3153, Apr. 2, 1963]



Sec.  1.1381-2  Tax on certain farmers' cooperatives.

    (a) In general. (1) For taxable years beginning after December 31, 
1962, farmers', fruit growers', or like associations, organized and 
operated in compliance with the requirements of section 521 and Sec.  
1.521-1, shall be subject to the taxes imposed by section 11 or section 
1201. Although such associations are subject to both normal tax and 
surtax, as in the case of corporations generally, certain special 
deductions are provided for them in section 1382(c) and Sec.  1.1382-3. 
For the purpose of any law which refers to organizations exempt from 
income taxes such an association shall, however, be considered as an 
organization exempt under section 501. Thus, the provisions of section 
243, providing a credit for dividends received from a domestic 
corporation subject to taxation, are not applicable to dividends 
received from a cooperative association organized and operated in 
compliance with the requirements of section 521 and Sec.  1.521-1. The 
provisions of section 1501, relating to consolidated returns, are 
likewise not applicable.
    (2) Rules governing the manner in which amounts paid as patronage 
dividends are allowable as deductions in computing the taxable income of 
such an association are set forth in section

[[Page 956]]

1382(b) and Sec.  1.1382-2. For the tax treatment, as to patrons, of 
amounts received during the taxable year as patronage dividends, see 
section 1385 and the regulations thereunder.
    (b) Cross references. For tax treatment of exempt cooperative 
associations for taxable years beginning before January 1, 1963, or for 
taxable years beginning after December 31, 1962, with respect to 
payments attributable to patronage occurring during taxable years 
beginning before January 1, 1963, see section 522 and the regulations 
thereunder. For requirements of annual returns by such associations, see 
sections 6012 and 6072(d) and paragraph (f) of Sec.  1.6012-2.

[T.D. 6643, 28 FR 3153, Apr. 2, 1963]



Sec.  1.1382-1  Taxable income of cooperatives; gross income.

    (a) Introduction. Section 1382(b) provides that the amount of 
certain patronage dividends (and amounts paid in redemption of 
nonqualified written notices of allocation) shall not be taken into 
account by a cooperative organization in determining its taxable income. 
Such section also provides that, for purposes of the Internal Revenue 
Code, an amount not taken into account is to be treated in the same 
manner as an item of gross income and as a deduction therefrom. 
Therefore, such an amount is treated as a deduction for purposes of 
applying the Internal Revenue Code and the regulations thereunder and, 
for simplicity, is referred to as a deduction in the regulations under 
such Code. However, this should not be regarded as a determination of 
the character of the amount for other purposes.
    (b) Computation of gross income. Any cooperative organization to 
which part I, subchapter T, chapter 1 of the Code, applies shall not, 
for any purpose under the Code, exclude from its gross income (as a 
reduction in gross receipts, an increase in cost of goods sold, or 
otherwise) the amount of any allocation or distribution to a patron out 
of the net earnings of such organization with respect to patronage 
occurring during a taxable year beginning after December 31, 1962. See, 
however, section 1382(b) and Sec.  1.1382-2 for deductions for certain 
amounts paid to patrons out of net earnings.

[T.D. 6643, 28 FR 3154, Apr. 2, 1963]



Sec.  1.1382-2  Taxable income of cooperatives; 
treatment of patronage dividends.

    (a) In general. (1) In determining the taxable income of any 
cooperative organization to which part I, subchapter T, chapter 1 of the 
Code, applies, there shall be allowed as deductions from gross income, 
in addition to the other deductions allowable under chapter 1 of the 
Code, the deductions with respect to patronage dividends provided in 
section 1382(b) and paragraphs (b) and (c) of this section.
    (2) For the definition of terms used in this section see section 
1388 and Sec.  1.1388-1; to determine the payment period for a taxable 
year, see section 1382(d) and Sec.  1.1382-4.
    (b) Deduction for patronage dividends--(1) In general. In the case 
of a taxable year beginning after December 31, 1962, there is allowed as 
a deduction from the gross income of any cooperative organization to 
which part I of subchapter T applies, amounts paid to patrons during the 
payment period for the taxable year as patronage dividends with respect 
to patronage occurring during such taxable year, but only to the extent 
that such amounts are paid in money, qualified written notices of 
allocation, or other property (other than non qualified written notices 
of allocation). See section 1382 (e) and (f) and Sec. Sec.  1.1382-5 and 
1.1382-6 for special rules relating to the time when patronage is deemed 
to occur where products are marketed under a pooling arrangement or 
where earnings are includible in the gross income of the cooperative 
organization for a taxable year after the year in which the patronage 
occurred. For purposes of this paragraph, a written notice of allocation 
is considered paid when it is issued to the patron. A patronage dividend 
shall be treated as paid in money during the payment period for the 
taxable year to the extent it is paid by a qualified check which is 
issued during the payment period for such taxable year and endorsed and 
cashed on or before the ninetieth day after the close of such payment 
period. In determining

[[Page 957]]

the amount paid which is allowable as a deduction under this paragraph, 
property (other than written notices of allocation) shall be taken into 
account at its fair market value when paid, and a qualified written 
notice of allocation shall be taken into account at its stated dollar 
amount.
    (2) Special rule for certain taxable years. No deduction is allowed 
under this section for amounts paid during taxable years beginning 
before January 1, 1963, or for amounts paid during taxable years 
beginning after December 31, 1962, with respect to patronage occurring 
during taxable years beginning before January 1, 1963. With respect to 
such amounts, the Internal Revenue Code of 1954 (including section 522 
and the regulations thereunder) shall be applicable without regard to 
subchapter T.
    (c) Deduction for amounts paid in redemption of certain nonqualified 
written notices of allocation. In the case of a taxable year beginning 
after December 31, 1962, there is allowed as a deduction from the gross 
income of a cooperative organization to which part I of subchapter T 
applies, amounts paid by such organization during the payment period for 
such taxable year in redemption of a nonqualified written notice of 
allocation which was previously paid as a patronage dividend during the 
payment period for the taxable year during which the patronage occurred, 
but only to the extent such amounts (1) are paid in money or other 
property (other than written notices of allocation) and (2) do not 
exceed the stated dollar amount of such written notice of allocation. No 
deduction shall be allowed under this paragraph, however, for amounts 
paid in redemption of nonqualified written notices of allocation which 
were paid with respect to patronage occurring during a taxable year 
beginning before January 1, 1963. For purposes of this paragraph, if an 
amount is paid within the payment period for two or more taxable years, 
it will be allowable as a deduction only for the earliest of such 
taxable years. Thus, if a cooperative which reports its income on a 
calendar year basis pays an amount in redemption of a nonqualified 
written notice of allocation on January 15, 1966, it will be allowed a 
deduction for such amount only for its 1965 taxable year. In determining 
the amount paid which is allowable as a deduction under this paragraph, 
property (other than written notices of allocation) shall be taken into 
account at its fair market value when paid. Amounts paid in redemption 
of a nonqualified written notice of allocation in excess of its stated 
dollar amount shall be treated under the applicable provisions of the 
Code. For example, if such excess is in the nature of interest, its 
deductibility will be governed by section 163 and the regulations 
thereunder.

[T.D. 6643, 28 FR 3154, Apr. 2, 1963]



Sec.  1.1382-3  Taxable income of cooperatives; special deductions 
for exempt farmers' cooperatives.

    (a) In general. (1) Section 1382(c) provides that in determining the 
taxable income of a farmers', fruit growers', or like association, 
described in section 1381(a)(1) and organized and operated in compliance 
with the requirements of section 521 and Sec.  1.521-1, there shall be 
allowed as deductions from the gross income of such organization, in 
addition to the other deductions allowable under chapter 1 of the Code 
(including the deductions allowed by section 1382(b)) the special 
deductions provided in section 1382(c) and paragraphs (b), (c), and (d) 
of this section.
    (2) For the definition of terms used in this section, see section 
1388 and Sec.  1.1388-1; to determine the payment period for a taxable 
year, see section 1382(d) and Sec.  1.1382-4.
    (b) Deduction for dividends paid on capital stock. In the case of a 
taxable year beginning after December 31, 1962, there is allowed as a 
deduction from the gross income of a cooperative association operated in 
compliance with the requirements of section 521 and Sec.  1.521-1, 
amounts paid as dividends during the taxable year on the capital stock 
of such cooperative association. For the purpose of the preceding 
sentence, the term capital stock includes common stock (whether voting 
or nonvoting), preferred stock, or any other form of capital represented 
by capital retain certificates, revolving fund certificates, letters of 
advice, or other evidence of a proprietary interest in a cooperative 
association. Such deduction

[[Page 958]]

is applicable only to the taxable year in which the dividends are 
actually or constructively paid to the holder of capital stock or other 
proprietary interest in the cooperative association. If a dividend is 
paid by check and the check bearing a date within the taxable year is 
deposited in the mail, in a cover properly stamped and addressed to the 
shareholder at his last known address, at such time that in the ordinary 
handling of the mails the check would be received by such holder within 
the taxable year, a presumption arises that the dividend was paid to 
such holder in such year. The determination of whether a dividend has 
been paid to such holder by the corporation during its taxable year is 
in no way dependent upon the method of accounting regularly employed by 
the corporation in keeping its books. For further rules as to the 
determination of the right to a deduction for dividends paid, under 
certain specific circumstances, see section 561 and the regulations 
thereunder.
    (c) Deduction for amounts allocated from income not derived from 
patronage--(1) In general. In the case of a taxable year beginning after 
December 31, 1962, there is allowed as a deduction from the gross income 
of a cooperative association operated in compliance with the 
requirements of section 521 and Sec.  1.521-1, amounts paid to patrons, 
during the payment period for the taxable year, on a patronage basis 
with respect to its income derived during such taxable year either from 
business done with or for the United States or any of its agencies or 
from sources other than patronage, but only to the extent such amounts 
are paid in money, qualified written notices of allocation, or other 
property (other than nonqualified written notices of allocation). For 
purposes of this subparagraph a written notice of allocation is 
considered paid when it is issued to the patron. An amount shall be 
treated as paid in money during the payment period for the taxable year 
to the extent it is paid by a qualified check which is issued during the 
payment period for such taxable year and endorsed and cashed on or 
before the ninetieth day after the close of such payment period. In 
determining the amount paid which is allowable as a deduction under this 
paragraph, property (other than written notices of allocation) shall be 
taken into account at its fair market value when paid, and a qualified 
written notice of allocation shall be taken into account at its stated 
dollar amount.
    (2) Definition. The term income derived from sources other than 
patronage used in this paragraph (c) means income from nonpatronage 
sources within the meaning of Sec.  1.1388-1(f)(3).
    (3) Basis of distribution. In order that the deduction for amounts 
paid with respect to income derived from business done with or for the 
United States or any of its agencies or from sources other than 
patronage may be applicable, it is necessary that the amount sought to 
be deducted be paid on a patronage basis in proportion, insofar as is 
practicable, to the amount of business done by or for patrons during the 
period to which such income is attributable. For example, if capital 
gains are realized from the sale or exchange of capital assets acquired 
and disposed of during the taxable year, income realized from such gains 
must be paid to patrons of such year in proportion to the amount of 
business done by such patrons during the taxable year. Similarly, if 
capital gains are realized by the association from the sale or exchange 
of capital assets held for a period extending into more than one taxable 
year income realized from such gains must be paid, insofar as is 
practicable, to the persons who were patrons during the taxable years in 
which the asset was owned by the association in proportion to the amount 
of business done by such patrons during such taxable years.
    (4) Special rules for certain taxable years. No deduction is 
allowable under this paragraph for amounts paid during taxable years 
beginning before January 1, 1963, or for amounts paid during taxable 
years beginning after December 31, 1962, with respect to income derived 
during taxable years beginning before January 1, 1963. With respect to 
such amounts, the Internal Revenue Code of 1954 (including section 522 
and the regulations thereunder) shall be applicable without regard to 
subchapter T.
    (d) Deduction for amounts paid in redemption of certain nonqualified 
written

[[Page 959]]

notices of allocation. In the case of a taxable year beginning after 
December 31, 1962, there is allowed as a deduction from the gross income 
of a cooperative association operated in compliance with the 
requirements of section 521 and Sec.  1.521-1, amounts paid by such 
association during the payment period for such taxable year in 
redemption of certain nonqualified written notices of allocation, but 
only to the extent such amounts (1) are paid in money or other property 
(other than written notices of allocation) and (2) do not exceed the 
stated dollar amount of such nonqualified written notices of allocation. 
The nonqualified written notices of allocation referred to in the 
preceding sentence are those which were previously paid to patrons on a 
patronage basis with respect to earnings derived either from business 
done with or for the United States or any of its agencies or from 
sources other than patronage, provided that such nonqualified written 
notices of allocation were paid during the payment period for the 
taxable year during which such earnings were derived. No deduction shall 
be allowed under this paragraph, however, for amounts paid in redemption 
of nonqualified written notices of allocation which were paid with 
respect to earnings derived during a taxable year beginning before 
January 1, 1963. For purposes of this paragraph, if an amount is paid 
within the payment period for two or more taxable years, it will be 
allowable as a deduction only for the earliest of such taxable years. In 
determining the amount paid which is allowable as a deduction under this 
paragraph, property (other than written notices of allocation) shall be 
taken into account at its fair market value when paid. Amounts paid in 
redemption of a nonqualified written notice of allocation in excess of 
its stated dollar amount shall be treated under the applicable 
provisions of the Code.
    (e) Applicability date. Paragraph (c)(2) of this section applies to 
taxable years beginning after January 19, 2021. For taxable years 
beginning on or before January 19, 2021, taxpayers, however, may choose 
to apply the rules of paragraph (c)(2) of this section, provided the 
taxpayers apply the rules in their entirety and in a consistent manner.

[T.D. 6643, 28 FR 3155, Apr. 2, 1963, as amended by T.D. 9947, 86 FR 
5593, Jan. 19, 2021]



Sec.  1.1382-4  Taxable income of cooperatives; payment period 
for each taxable year.

    The payment period for a taxable year is the period beginning with 
the first day of such taxable year and ending with the fifteenth day of 
the ninth month following the close of such year.

[T.D. 6643, 28 FR 3156, Nov. 26, 1963]



Sec.  1.1382-5  Taxable income of cooperatives; products marketed under 
pooling arrangements.

    For purposes of section 1382(b) and Sec.  1.1382-2, in the case of a 
pooling arrangement for the marketing of products the patronage under 
such pool shall be treated as occurring during the taxable year in which 
the pool closes. The determination of when a pool is closed will be made 
on the basis of the facts and circumstances in each case, but generally 
the practices and operations of the cooperative organization shall 
control. This section may be illustrated by the following example:

    Example: Farmer A delivers to the X Cooperative 100 bushels of wheat 
on August 15, 1963, at which time he receives a per bushel advance. 
(Both farmer A and the X Cooperative file returns on a calendar year 
basis.) On October 15, 1963 farmer A receives an additional per bushel 
payment. The pool sells some of its wheat in 1963 and the remainder in 
January of 1964. The pool is closed on February 15, 1964. For purposes 
of section 1382(b), A's patronage is considered as occurring in 1964.

[T.D. 6643, 28 FR 3156, Apr. 2, 1963]



Sec.  1.1382-6  Taxable income of cooperatives; treatment of earnings 
received after patronage occurred.

    If earnings derived from business done with or for patrons are 
includible in the gross income of the cooperative organization for a 
taxable year after the taxable year during which the patronage occurred, 
then, for purposes of determining whether the cooperative is allowed a 
deduction under section 1382(b) and Sec.  1.1382-2, the patronage to 
which these earnings relate shall be considered to have occurred during 
the

[[Page 960]]

taxable year for which such earnings are includible in the cooperative's 
gross income. Thus, if the cooperative organization pays these earnings 
out as patronage dividends during the payment period for the taxable 
year for which the earnings are includible in its gross income, it will 
be allowed a deduction for such payments under section 1382(b)(1) and 
paragraph (b) of Sec.  1.1382-2, to the extent they are paid in money, 
qualified written notices of allocation, or other property (other than 
written notices of allocation).

[T.D. 6643, 28 FR 3156, Apr. 2, 1963]



Sec.  1.1382-7  Special rules applicable to cooperative associations 
exempt from tax before January 1, 1952.

    (a) Basis of property. The adjustments to the cost or other basis 
provided in sections 1011 and 1016 and the regulations thereunder, are 
applicable for the entire period since the acquisition of the property. 
Thus, proper adjustment to basis must be made under section 1016 for 
depreciation, obsolescence, amortization, and depletion for all taxable 
years beginning prior to January 1, 1952, although the cooperative 
association was exempt from tax under section 521 or corresponding 
provisions of prior law for such years. However, no adjustment for 
percentage or discovery depletion is to be made for any year during 
which the association was exempt from tax. If a cooperative association 
has made a proper election in accordance with section 1020 and the 
regulations prescribed thereunder with respect to a taxable year 
beginning before 1952 in which the association was not exempt from tax, 
the adjustment to basis for depreciation for such years shall be limited 
in accordance with the provisions of section 1016(a)(2).
    (b) Amortization of bond premium. In the case of tax exempt and 
partially taxable bonds purchased at a premium and subject to 
amortization under section 171, proper adjustment to basis must be made 
to reflect amortization with respect to such premium from the date of 
acquisition of the bond. (For principles governing the method of 
computation, see the example in paragraph (b) of Sec.  1.1016-9, 
relating to mutual savings banks, building and loan associations, and 
cooperative banks.) The basis of a fully taxable bond purchased at a 
premium shall be adjusted from the date of the election to amortize such 
premium in accordance with the provisions of section 171 except that no 
adjustment shall be allowable for such portion of the premium 
attributable to the period prior to the election.
    (c) Amortization of mortgage premium. In the case of a mortgage 
acquired at a premium where the principal of such mortgage is payable in 
installments, adjustments to the basis for the premium must be made for 
all taxable years (whether or not the association was exempt from tax 
under section 521 during such years) in which installment payments are 
received. Such adjustments may be made on an individual mortgage basis 
or on a composite basis by reference to the average period of payments 
of the mortgage loans of such association. For the purpose of this 
adjustment, the term premium includes the excess of the acquisition 
value of the mortgage over its maturity value. The acquisition value of 
the mortgage is the cost including buying commissions, attorneys' fees, 
or brokerage fees, but such value does not include amounts paid for 
accrued interest.

[T.D. 6643, 28 FR 3156, Apr. 2, 1963]



Sec.  1.1383-1  Computation of tax where cooperative redeems 
nonqualified written notices of allocation.

    (a) General rule. (1) If, during the taxable year, a cooperative 
organization is entitled to a deduction under section 1382 (b)(2) or 
(c)(2)(B) for amounts paid in redemption of nonqualified written notices 
of allocation, the tax imposed for the taxable year by chapter 1 of the 
Code shall be the lesser of:
    (i) The tax for the taxable year computed under section 1383(a)(1), 
that is, with such deduction taken into account, or
    (ii) The tax for the taxable year computed under section 1383(a)(2), 
that is, without taking such deduction into account, minus the decrease 
in tax (under chapter 1 of the Code) for any prior taxable year (or 
years) which would result solely from treating all such nonqualified 
written notices of allocation redeemed during the taxable year as

[[Page 961]]

qualified written notices of allocation when paid. For the purpose of 
this subdivision, the amount of the decrease in tax is not limited to 
the amount of the tax for the taxable year. See paragraph (c) of this 
section for rules relating to a refund of tax where the decrease in tax 
for the prior taxable year (or years) exceeds the tax for the taxable 
year.
    (2) If the cooperative organization computes its tax for the taxable 
year under the provisions of section 1383(a)(2) and subparagraph (1)(ii) 
of this paragraph, then no deduction under section 1382 (b)(2) or 
(c)(2)(B) shall be taken into account in computing taxable income or 
loss for the taxable year, including the computation of any net 
operating loss carryback or carryover. However, the amount of the 
deduction shall be taken into account in adjusting earnings and profits 
for the taxable year.
    (3) If the tax determined under subparagraph (1)(i) of this 
paragraph is the same as the tax determined under subparagraph (1)(ii) 
of this paragraph, the tax imposed for the taxable year under chapter 1 
of the Code shall be the tax determined under subparagraph (1)(l) of 
this paragraph, and section 1383 and this section shall not otherwise 
apply. The tax imposed for the taxable year shall be the tax determined 
under subparagraph (1)(ii) of this paragraph in any case when a credit 
or refund would be allowable for the taxable year under section 
1383(b)(1).
    (b) Determination of decrease in tax for prior taxable years--(1) 
Prior taxable years. The prior taxable year (or years) referred to in 
paragraph (a) of this section is the year (or years) within the payment 
period for which the nonqualified written notices of allocation were 
paid and, in addition, any other prior taxable year (or years) which is 
affected by the adjustment to income by reason of treating such 
nonqualified written notices of allocation as qualified written notices 
of allocation when paid.
    (2) Adjustment to income in prior taxable years. The deduction for 
the prior taxable year (or years) in determining the decrease in tax 
under section 1383(a)(2)(B) and paragraph (a)(1)(ii) of this section 
shall be the amount paid in redemption of the nonqualified written 
notices of allocation which, without regard to section 1383, is 
allowable as a deduction under section 1382 (b)(2) or (c)(2)(B) for the 
current taxable year.
    (3) Computation of decrease in tax for prior taxable years. In 
computing the amount of decrease in tax for a prior taxable year (or 
years) resulting under this section, there must first be ascertained the 
amount of tax previously determined for the taxpayer for such prior 
taxable year (or years). The tax previously determined shall be the sum 
of the amounts shown as such tax by the taxpayer on his return or 
returns, plus any amounts which have been previously assessed (or 
collected without assessment) as deficiencies, reduced by the amount of 
any rebates which have previously been made. The amount shown as the tax 
by the taxpayer on his return and the amount of any rebates or 
deficiencies shall be determined in accordance with the provisions of 
section 6211 and the regulations thereunder. After the tax previously 
determined has been ascertained, a recomputation must then be made to 
determine the decrease in tax, if any, resulting under this section. In 
determining the decrease in tax for the prior taxable year (or years), 
appropriate adjustment shall be made to any item which is dependent upon 
the amount of gross income or taxable income (such as charitable 
contributions, net operating losses, the foreign tax credit, and the 
dividends received credit).
    (c) Refunds. If the decrease in tax for the prior taxable year (or 
years) determined under section 1383(a)(2)(B) and paragraph (a)(1)(ii) 
of this section exceeds the tax imposed by chapter 1 of the Code for the 
taxable year computed without the deduction under section 1382 (b) or 
(c)(2)(B), the excess shall be considered to be a payment of tax for the 
taxable year of the deduction. Such payment is deemed to have been made 
on the last day prescribed by law for the payment of tax for the taxable 
year and shall be refunded or credited in the same manner as if it were 
an overpayment of tax for such taxable year. See section 6151 and the 
regulations thereunder, for rules relating to time and place for paying 
tax shown on returns.

[[Page 962]]

    (d) Example. The application of section 1383 may be illustrated by 
the following example:

    Example: The X Cooperative (which reports its income on a calendar 
year basis) pays patronage dividends of $100,000 in nonqualified written 
notices of allocation on February 1, 1964, with respect to patronage 
occurring in 1963. Since the patronage dividends of $100,000 were paid 
in nonqualified written notices of allocation the X Cooperative is not 
allowed a deduction for that amount for 1963. On December 1, 1966, the X 
Cooperative redeems these nonqualified written notices of allocation for 
$50,000. Under section 1382(b)(2), a deduction of $50,000 is allowable 
in computing its taxable income for 1966. However, the X Cooperative has 
a loss for 1966 determined without regard to this deduction. The X 
Cooperative, therefore, makes the computation under the alternative 
method provided in section 1383(a)(2). Under this alternative method, it 
will claim a credit or refund (as an overpayment of tax for 1966) of the 
decrease in tax for 1963 and for such other years prior to 1966 as are 
affected which results from recomputing its tax for 1963 and such other 
years affected) as if patronage dividends of $50,000 had been paid on 
February 1, 1964, in qualified written notices of allocation. In 
addition, under this alternative method the X Cooperative cannot use the 
$50,000 as a deduction for 1966 so as to increase its net operating loss 
for such year for purposes of computing a net operating loss carryback 
or carryover. If the X Cooperative also redeems on December 1, 1966, 
nonqualified written notices of allocation which were paid as patronage 
dividends on February 1, 1965, with respect to patronage occurring in 
1964, it will claim a credit or refund (as an overpayment of tax for 
1966) of the decrease in tax for 1964 and for such other years prior to 
1966 as are affected. It shall not, however, apply one method for 
computing the tax with respect to the redemptions in 1966 of the 
nonqualified written notices of allocation paid in 1964 and the other 
method with respect to the redemption in 1966 of the nonqualified 
written notices of allocation paid in 1965.

[T.D. 6643, 28 FR 3156, Apr. 2, 1963]

             Tax Treatment by Patrons of Patronage Dividends



Sec.  1.1385-1  Amounts includible in patron's gross income.

    (a) General rules. Section 1385(a) requires every person to include 
in gross income the following amounts received by him during the taxable 
year, to the extent paid by the organization in money, a qualified 
written notice of allocation, or other property (other than a 
nonqualified written notice of allocation):
    (1) The amount of any patronage dividend received from an 
organization subject to the provisions of part I, subchapter T, chapter 
1 of the Code, unless such amount is excludable from gross income under 
the provisions of section 1385(b) and paragraph (c) of this section, and
    (2) The amount of any distribution received from a farmers', fruit 
growers', or like association, organized and operated in compliance with 
the requirements of section 521 and Sec.  1.521-1, which is paid on a 
patronage basis with respect to earnings derived by such association 
either from business done with or for the United States or any of its 
agencies or from sources other than patronage.

The amounts described in subparagraphs (1) and (2) of this paragraph are 
includible in gross income for the taxable year in which they are 
received even though the cooperative organization was allowed a 
deduction for such amounts for its preceding taxable year because they 
were paid during the payment period for such preceding taxable year. 
Similarly, such amounts are includible in gross income even though the 
cooperative organization is not permitted any deduction for such amounts 
under the provisions of section 1382 because such amounts were not paid 
within the time prescribed by such section.
    (b) Treatment of certain nonqualified written notices of allocation. 
(1) Except as provided in paragraph (c) of this section, any gain on the 
redemption, sale, or other disposition of a nonqualified written notice 
of allocation described in subparagraph (2) of this paragraph shall, to 
the extent that the stated dollar amount of such written notice of 
allocation exceeds its basis, be considered as gain from the sale or 
exchange of property which is not a capital asset, whether such gain is 
realized by the patron who received the nonqualified written notice of 
allocation initially or by any subsequent holder. Any amount realized on 
the redemption, sale, or other disposition of such a nonqualified 
written notice of allocation in excess of its stated dollar

[[Page 963]]

amount will be treated under the applicable provisions of the Code. For 
example, amounts received in redemption of a nonqualified written notice 
of allocation which are in excess of the stated dollar amount of such 
written notice of allocation and which, in effect, constitute interest 
shall be treated by the recipient as interest.
    (2) The nonqualified written notices of allocation to which 
subparagraph (1) of this paragraph applies are the following:
    (i) A nonqualified written notice of allocation which was paid as a 
patronage dividend (within the meaning of section 1388(a) and paragraph 
(a) of Sec.  1.1388-1), by a cooperative organization subject to the 
provisions of part I of subchapter T, and
    (ii) A nonqualified written notice of allocation which was paid by a 
farmers', fruit growers', or like association, organized and operated in 
compliance with the requirements of section 521 and Sec.  1.521-1, to 
patrons on a patronage basis with respect to earnings derived either 
from business done with or for the United States or any of its agencies 
or from sources other than patronage.
    (3) The basis of any nonqualified written notice of allocation 
described in subparagraph (2) of this paragraph, in the hands of the 
patron to whom such written notice of allocation was initially paid 
shall be zero, and the basis of such a written notice of allocation 
which was acquired from a decedent shall be its basis in the hands of 
the decedent.
    (4) The application of this paragraph may be illustrated by the 
following example:

    Example: A, a farmer, receives a patronage dividend from the X 
Cooperative, in the form of a nonqualified written notice of allocation, 
which is attributable to the sale of his crop to that cooperative 
organization. The stated dollar amount of the nonqualified written 
notice of allocation is $100. The basis of the written notice of 
allocation in the hands of A is zero and he must report any amount up to 
$100 received by him on its redemption, sale, or other disposition, as 
ordinary income. If A gives the written notice of allocation to his son 
B, B takes A's (the donor's) basis which is zero, and any gain up to 
$100 which B later realizes on its redemption, sale, or other 
disposition is ordinary income. Similarly, if A dies before realizing 
any gain on the nonqualified written notice of allocation, B, his 
legatee, has a zero basis for such written notice of allocation and any 
gain up to $100 which he then realizes on its redemption, sale, or other 
disposition is also ordinary income. Such gain is income in respect of a 
decedent within the meaning of section 691(a) and Sec.  1.691(a)-1.

    (c) Treatment of patronage dividends received with respect to 
certain property--(1) Exclusions from gross income. Except as provided 
in subparagraph (2) of this paragraph, gross income shall not include:
    (i) Any amount of a patronage dividend described in paragraph (a)(1) 
of this section which is received with respect to the purchase of 
supplies, equipment, or services, which were not used in the trade or 
business and the cost of which was not deductible under section 212, or 
which is received with respect to the marketing or purchasing of a 
capital asset (as defined in section 1221) or property used in the trade 
or business of a character which is subject to the allowance for 
depreciation provided in section 167; and
    (ii) Any amount (to the extent treated as ordinary income under 
paragraph (b) of this section) received on the redemption, sale, or 
other disposition of a nonqualified written notice of allocation which 
was received as a patronage dividend with respect to the purchase of 
supplies, equipment, or services, which were not used in the trade or 
business and the cost of which was not deductible under section 212, or 
which was received as a patronage dividend with respect to the marketing 
or purchasing of a capital asset (as defined in section 1221) or 
property used in the trade or business of a character which is subject 
to the allowance for depreciation provided in section 167.
    (2) Special rules. (i) If an amount described in subparagraph (1) of 
this paragraph relates to the purchase of a capital asset (as defined in 
section 1221), or property used in the trade or business of a character 
which is subject to the allowance for depreciation provided in section 
167, and the person receiving such amount owned such asset or property 
at any time during the taxable year in which such amount is received, 
then such amount shall be taken into account as an adjustment to the 
basis of such property or asset as of the first day of the taxable year 
in

[[Page 964]]

which such amount is received. To the extent that such amount exceeds 
the adjusted basis of such property it shall be taken into account as 
ordinary income.
    (ii) If an amount described in subparagraph (1) of this paragraph 
relates to the marketing or purchasing of a capital asset (as defined in 
section 1221), or property used in the trade or business of a character 
which is subject to the allowance for depreciation provided in section 
167, and the person receiving such amount did not own the asset or 
property at any time during the taxable year in which such amount is 
received, then such amount shall be included in gross income as ordinary 
income except that:
    (a) If such amount relates to a capital asset (as defined in section 
1221) which was held by the recipient for more than 1 year (6 months for 
taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977) and with respect to which a loss was or would have 
been deductible under section 165, such amount shall be taken into 
account as gain from the sale or exchange of a capital asset held for 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977);
    (b) If such amount relates to a capital asset (as defined in section 
1221) with respect to which a loss was not or would not have been 
deductible under section 165, such amount shall not be taken into 
account.
    (iii) If an amount described in subparagraph (1) of this paragraph 
relates to the marketing of a capital asset (as defined in section 1221) 
or property used in the trade or business of a character which is 
subject to the allowance for depreciation provided in section 167, and 
such amount is received by the patron in the same taxable year during 
which he marketed the asset to which it relates, such amount shall be 
treated as an additional amount received on the sale or other 
disposition of such asset.
    (iv) If a person receiving a patronage dividend or an amount on the 
redemption, sale, or other disposition of a nonqualified written notice 
of allocation which was received as a patronage dividend is unable to 
determine the item to which it relates, he shall include such patronage 
dividend or such amount in gross income as ordinary income in the manner 
and to the extent provided in paragraph (a) or (b) of this section, 
whichever is applicable.
    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. On July 1, 1964, P, a patron of a cooperative 
association, purchases an implement for use in his farming business from 
such association for $2,900. The implement has an estimated useful life 
of three years and has an estimated salvage value of $200 which P 
chooses to take into account in the computation of depreciation. P files 
his income tax returns on a calendar year basis. For 1964 P claims 
depreciation of $450 with respect to the implement pursuant to his use 
of the straight-line method at the rate of $900 per year. On July 1, 
1965, the cooperative association pays a patronage dividend to P of $300 
in cash with respect to his purchase of the farm implement. P will 
adjust the basis of the implement and will compute his depreciation 
deduction for 1965 (and subsequent taxable years) as follows:

Cost of farm implement, July 1, 1964.........................     $2,900
  Less:
    Salvage value............................................        200
    Depreciation for 1964 (6 months).........................        450
    Adjustment as of January 1, 1965 for cash patronage              300
     dividend................................................
                                                              ----------
      Total..................................................        950
                                                              ----------
    Basis for depreciation for the remaining 2\1/2\ years of       1,950
     estimated life..........................................
                                                              ==========
Depreciation deduction for 1965 ($1,950 divided by the 2\1/2\        700
 years of remaining life)....................................
 

    Example 2. Assume the same facts as in example (1), except that on 
July 1, 1965, the cooperative association paid a patronage dividend to P 
with respect to his purchase of the implement in the form of a 
nonqualified written notice of allocation having a stated dollar amount 
of $300. Since such written notice of allocation was not qualified, no 
amount of the patronage dividend was taken into account by P as an 
adjustment to the basis of the implement, or in computing his 
depreciation deduction, for the year 1965. In 1968, P receives $300 cash 
from the association in full redemption of the written notice of 
allocation. Prior to 1968, he had recovered through depreciation $2,700 
of the cost of the implement, leaving an adjusted basis of $200 (the 
salvage value). For the year 1968, the redemption proceeds of $300 are 
applied against the adjusted basis of $200, reducing the basis of the 
implement to zero, and the balance of the redemption proceeds, $100, is 
includable as ordinary income in P's gross income for

[[Page 965]]

the calendar year 1968. If the patronage dividend paid to P on July 1, 
1965, had been in the form of $60 cash (20 percent of $300) and a 
qualified written notice of allocation with a stated dollar amount of 
$240, then the tax treatment of such patronage dividend would be that 
illustrated in example (1).
    Example 3. Assume the same facts as in example (2), except that the 
nonqualified written notice of allocation is redeemed in cash on July 1, 
1966. The full $300 received on redemption will reduce the adjusted 
basis of the implement as of January 1, 1966, and the depreciation 
allowances for 1966 and 1967 are computed as follows:

Cost of farm implement, July 1, 1964.........................     $2,900
  Less:
    Salvage value............................................        200
    Depreciation for 1964 (6 months).........................        450
    Depreciation for 1965....................................        900
    Adjustment as of January 1, 1966 for proceeds of the             300
     redemption..............................................
                                                              ----------
      Total..................................................      1,850
                                                              ----------
    Basis for depreciation on Jan. 1, 1966...................      1,050
If P uses the implement in his business until fully
 depreciated, he would be entitled to the following
 depreciation allowances with respect to such implement:
    For 1966.................................................        700
    For 1967.................................................        350
                                                              ----------
      Total..................................................      1,050
                                                              ==========
Balance to be depreciated....................................          0
 

    Example 4. Assume the same facts as in example (3), except that P 
sells the implement in 1965. The entire $300 received in 1966 in 
redemption of the nonqualified written notice of allocation is 
includible as ordinary income in P's gross income for the year 1966.

    (d) Determination of amount received. In determining the amount 
received for purposes of this section:
    (1) Property (other than written notices of allocation) shall be 
taken into account at its fair market value when received;
    (2) A qualified written notice of allocation shall be taken into 
account at its stated dollar amount; and
    (3) The amount of a qualified check shall be considered an amount 
received in money during the taxable year in which such check is 
received if the check is endorsed and cashed on or before the ninetieth 
day after the close of the payment period for the taxable year of the 
cooperative organization in which the patronage to which such amount 
relates occurred.
    (e) Effective date. This section shall not apply to any distribution 
or allocation received from a cooperative organization, or to any gain 
or loss on the redemption, sale, or other disposition of any allocation 
received from such an organization, if such distribution or allocation 
was received with respect to patronage occurring in a taxable year of 
the organization beginning before January 1, 1963. See Sec.  1.61-5 for 
the tax treatment by patrons of such distributions or allocations.

[T.D. 6643, 28 FR 3157, Apr. 2, 1963, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]

                       Definitions; Special Rules



Sec.  1.1388-1  Definitions and special rules.

    (a) Patronage dividend--(1) In general. The term patronage dividend 
means an amount paid to a patron by a cooperative organization subject 
to the provisions of part I, subchapter T, chapter 1 of the Code, which 
is paid:
    (i) On the basis of quantity or value of business done with or for 
such patron,
    (ii) Under a valid enforceable written obligation of such 
organization to the patron to pay such amount, which obligation existed 
before the cooperative organization received the amount so paid, and
    (iii) Which is determined by reference to the net earnings of the 
cooperative organization from business done with or for its patrons.

For the purpose of subdivision (ii) of this subparagraph, amounts paid 
by a cooperative organization are paid under a valid enforceable written 
obligation if such payments are required by State law or are paid 
pursuant to provisions of the bylaws, articles of incorporation, or 
other written contract, whereby the organization is obligated to make 
such payment. The term net earnings, for purposes of subdivision (iii) 
of this subparagraph, includes the excess of amounts retained (or 
assessed) by the organization to cover expenses or other items over the 
amount of such expenses or other items. For purposes of such subdivision 
(iii), net earnings shall not be reduced by any taxes imposed by 
subtitle A of the Code, but shall be reduced by dividends paid on 
capital stock or other proprietary capital interests.

[[Page 966]]

    (2) Exceptions. The term patronage dividend does not include the 
following:
    (i) An amount paid to a patron by a cooperative organization to the 
extent that such amount is paid out of earnings not derived from 
business done with or for patrons.
    (ii) An amount paid to a patron by a cooperative organization to the 
extent that such amount is paid out of earnings from business done with 
or for other patrons to whom no amounts are paid, or to whom smaller 
amounts are paid, with respect to substantially identical transactions. 
Thus, if a cooperative organization does not pay any patronage dividends 
to nonmembers, any portion of the amounts paid to members which is out 
of net earnings from patronage with nonmembers, and which would have 
been paid to the nonmembers if all patrons were treated alike, is not a 
patronage dividend.
    (iii) An amount paid to a patron by a cooperative organization to 
the extent that such amount is paid in redemption of capital stock, or 
in redemption or satisfaction of certificates of indebtedness, revolving 
fund certificates, retain certificates, letters of advice, or other 
similar documents, even if such documents were originally paid as 
patronage dividends.
    (iv) An amount paid to a patron by a cooperative organization to the 
extent that such amount is fixed without reference to the net earnings 
of the cooperative organization from business done with or for its 
patrons.
    (3) Examples. The application of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. (i) Cooperative A, a marketing association operating on a 
pooling basis, receives the products of patron W on January 5, 1964. On 
the same day cooperative A advances to W 45 cents per unit for the 
products so delivered and allocates to him a retain certificate having a 
face value calculated at the rate of 5 cents per unit. During the 
operation of the pool, and before substantially all the products in the 
pool are disposed of, cooperative A advances to W an additional 40 cents 
per unit, the amount being determined by reference to the market price 
of the products sold and the anticipated price of the unsold products. 
At the close of the pool on November 10, 1964, cooperative A determines 
the excess of its receipts over the sum of its expenses and its previous 
advances to patrons, and allocates to W an additional 3 cents per unit 
and shares of the capital stock of A having an aggregate stated dollar 
amount calculated at the rate of 2 cents per unit. Under the provisions 
of section 1382(e), W's patronage is deemed to occur in 1964, the year 
in which the pool is closed.
    (ii) The patronage dividend paid to W during 1964 amounts to 5 cents 
per unit, consisting of the aggregate of the following per-unit 
allocations: The amount of the cash distribution (3 cents), and the 
stated dollar amount of the capital stock of A (2 cents), which are 
fixed with reference to the net earnings of A. The amount of the two 
distributions in cash (85 cents) and the face amount of the retain 
certificate (5 cents), which are fixed without reference to the net 
earnings of A, do not constitute patronage dividends.
    Example 2. Cooperative B, a marketing association operating on a 
pooling basis, receives the products of patron X on March 5, 1964. On 
the same day cooperative B pays to X $1.00 per unit for such products, 
this amount being determined by reference to the market price of the 
product when received, and issues to him a participation certificate 
having no face value but which entitles X on the close of the pool to 
the proceeds derived from the sale of his products less the previous 
payment of $1.00 and the expenses and other charges attributable to such 
products. On March 5, 1967, cooperative B, having sold the products in 
the pool, having deducted the previous payments for such products, and 
having determined the expenses and other charges of the pool pays to X, 
in cash, 10 cents per unit pursuant to the participation certificate. 
Under the provisions of section 1382(e), X's patronage is deemed to 
occur in 1967, the year in which the pool is closed. The payment made to 
X during 1967, amounting to 10 cents per unit, is a patronage dividend. 
Neither the payment to X in 1964 of $1.00 nor the issuance to him of the 
participation certificate in that year constitutes a patronage dividend.
    Example 3. Cooperative C, a purchasing association, obtains supplies 
for patron Y on May 1, 1964, and receives in return therefor $100. On 
February 1, 1965, cooperative C, having determined the excess of its 
receipts over its costs and expenses, pays to Y a cash distribution of 
$1.00 and a revolving fund certificate with a stated dollar amount of 
$1.00. The amount of patronage dividend paid to Y in 1965 is $2.00, the 
aggregate of the cash distribution ($1.00) and the stated dollar amount 
of the revolving fund certificate ($1.00).
    Example 4. Cooperative D, a service association, sells the products 
of members on a fee basis. It receives the products of patron Z under an 
agreement not to pool his products with those of other members, to sell 
his products, and to deliver to him the proceeds

[[Page 967]]

of the sale. Patron Z makes payments to cooperative D during 1964 
aggregating $75 for service rendered him by cooperative D during that 
year. On May 15, 1965, cooperative D, having determined the excess of 
its receipts over its costs and expenses, pays to Z a cash distribution 
of $2.00. Such amount is a patronage dividend paid by cooperative D 
during 1965.

    (b) Written notice of allocation. The term written notice of 
allocation means any capital stock, revolving fund certificate, retain 
certificate, certificate of indebtedness, letter of advice, or other 
written notice, which discloses to the patron the stated dollar amount 
allocated to him on the books of the cooperative organization, and the 
portion thereof, if any, which constitutes a patronage dividend. Thus, a 
mere credit to the account of a patron on the books of the organization 
without disclosure to the patron, is not a written notice of allocation. 
A written notice of allocation may disclose to the patron the amount of 
the allocation which constitutes a patronage dividend either as a dollar 
amount or as a percentage of the stated dollar amount of the written 
notice of allocation.
    (c) Qualified written notice of allocation--(1) In general. The term 
qualified written notice of allocation means a written notice of 
allocation:
    (i) Which meets the requirements of subparagraphs (2) or (3) of this 
paragraph, and
    (ii) Which is paid as part of a patronage dividend, or as part of a 
payment by a cooperative association organized and operated in 
compliance with the provisions of section 521 and Sec.  1.521-1 to 
patrons on a patronage basis with respect to earnings derived from 
business done with or for the United States or any of its agencies or 
from sources other than patronage, that also includes a payment in money 
or by qualified check equal to at least 20 percent of such patronage 
dividend or such payment.

In determining, for purposes of subdivision (ii) of this subparagraph, 
whether 20 percent of a patronage dividend or a payment with respect to 
nonpatronage earnings is paid in money or by qualified check, any 
portion of such dividend or payment which is paid in nonqualified 
written notices of allocation may be disregarded. Thus, if a cooperative 
pays a patronage dividend of $100 in the form of a nonqualified written 
notice of allocation with a stated dollar amount of $50, a written 
notice of allocation with a stated dollar amount of $40, and money in 
the amount of $10, the written notice of allocation with a stated dollar 
amount of $40 will constitute a qualified written notice of allocation 
if it meets the requirements of subparagraph (2) or (3) of this 
paragraph. A payment in money, as that term is used in subdivision (ii) 
of this subparagraph, includes a payment by a check drawn on a bank but 
does not include a credit against amounts owed by the patron to the 
cooperative organization, a credit against the purchase price of a share 
of stock or of a membership in such organization, nor does it include a 
payment by means of a document redeemable by such organization for 
money.
    (2) Written notice of allocation redeemable in cash. The term 
qualified written notice of allocation includes a written notice of 
allocation which meets the requirement of subparagraph (1)(ii) of this 
paragraph and which may be redeemed in cash at its stated dollar amount 
at any time within a period beginning on the date such written notice of 
allocation is paid and ending not earlier than 90 days from such date, 
but only if the distributee receives written notice of the right of 
redemption at the time he receives such written notice of allocation. 
The written notice of the right of redemption referred to in the 
preceding sentence shall be given separately to each patron. Thus, a 
written notice of the right of redemption which is published in a 
newspaper or posted at the cooperative's place of business would not be 
sufficient to qualify a written notice of allocation which is otherwise 
described in this subparagraph.
    (3) Consent of patron. The term qualified written notice of 
allocation also includes written notice of allocation which meets the 
requirement of subparagraph (1)(ii) of this paragraph and which the 
distributee has consented, in a manner provided in this subparagraph, to 
take into account at its stated dollar amount as provided in section 
1385 and Sec.  1.1385-1.

[[Page 968]]

    (i) Consent in writing. A distributee may consent to take the stated 
dollar amount of written notices of allocation into account under 
section 1385 by signing and furnishing a written consent to the 
cooperative organization. No special form is required for the written 
consent so long as the document on which it is made clearly discloses 
the terms of the consent. Thus, the written consent may be made on a 
signed invoice, sales slip, delivery ticket, marketing agreement, or 
other document, on which appears the appropriate consent. Unless the 
written consent specifically provides to the contrary, it shall be 
effective with respect to all patronage occurring during the taxable 
year of the cooperative organization in which such consent is received 
by such organization and, unless revoked under section 1388(c)(3)(B), 
for all subsequent taxable years. Section 1388(c)(3)(B)(i) provides that 
a written consent may be revoked by the patron at any time. Thus, any 
written consent which is, by its terms, irrevocable is not a consent 
that would qualify a written notice of allocation. A revocation, to be 
effective, must be in writing, signed by the patron, and furnished to 
the cooperative organization. Such a revocation shall be effective only 
with respect to patronage occurring after the close of the taxable year 
of the cooperative organization during which the revocation is filed 
with it. In the case of a pooling arrangement described in section 
1382(e) and Sec.  1.1382-5, a written consent which is made at any time 
before the close of the taxable year of the cooperative organization 
during which the pool closes shall be effective with respect to all 
patronage under that pool. In addition, any subsequent revocation of 
such consent by the patron will not be effective for that pool or any 
other pool with respect to which he has been a patron before such 
revocation.
    (ii) Consent by membership. (a) A distributee may consent to take 
the stated dollar amount of written notices of allocation into account 
under section 1385 by obtaining or retaining membership in the 
cooperative organization after such organization has adopted a valid 
bylaw providing that membership in such cooperative organization 
constitutes such consent, but such consent shall take effect only after 
the distributee has received a written notification of the adoption of 
the bylaw provision and a copy of such bylaw. The bylaw must have been 
adopted by the cooperative organization after October 16, 1962, and must 
contain a clear statement that membership in the cooperative 
organization constitutes the prescribed consent. The written 
notification from the cooperative organization must inform the patron 
that this bylaw has been adopted and of its significance. The 
notification and copy of the bylaw shall be given separately to each 
member (or prospective member); thus, a written notice and copy of the 
bylaw which are published in a newspaper or posted at the cooperative's 
place of business are not sufficient to qualify a written notice of 
allocation under this subdivision. A member (or prospective member) is 
presumed to have received the notification and copy of the bylaw if they 
were sent to his last known address by ordinary mail. A prospective 
member must receive the notification and copy of the bylaw before he 
becomes a member of the organization in order to have his membership in 
the organization constitute consent. A consent made in the manner 
described in this subdivision shall be effective only with respect to 
patronage occurring after the patron has received a copy of the bylaw 
and the prerequisite notice and while he is a member of the 
organization. Thus, any such consent shall not be effective with respect 
to any patronage occurring after the patron ceases to be a member of the 
cooperative organization or after the bylaw provision is repealed by 
such organization. In the case of a pooling arrangement described in 
section 1382(e) and Sec.  1.1382-5, a consent made under this 
subdivision will be effective only with respect to the patron's actual 
patronage occurring after he receives the notification and copy of the 
bylaw and while he is a member of the cooperative organization. Thus 
such a consent shall not be effective with respect to any patronage 
under a pool after the patron ceases to be a member of the cooperative 
organization or after the bylaw provisions is repealed by the 
organization.

[[Page 969]]

    (b) The following is an example of a bylaw provision which would 
meet the requirements prescribed in (a) of this subdivision.

    Example: Each person who hereafter applies for and is accepted to 
membership in this cooperative and each member of this cooperative on 
the effective date of this bylaw who continues as a member after such 
date shall, by such act alone, consent that the amount of any 
distributions with respect to his patronage occurring after _____, which 
are made in written notices of allocation (as defined in 26 U.S.C. 1388) 
and which are received by him from the cooperative, will be taken into 
account by him at their stated dollar amounts in the manner provided in 
26 U.S.C. 1385(a) in the taxable year in which such written notices of 
allocation are received by him.

    (c) For purposes of this subdivision the term member means a person 
who is entitled to participate in the management of the cooperative 
organization.
    (iii) Consent by qualified check. (a) A distributee may consent to 
take the stated dollar amount of a written notice of allocation into 
account under section 1385 by endorsing and cashing a qualified check 
which is paid as a part of the same patronage dividend or payment 
described in subparagraph (1)(ii) of this paragraph of which the written 
notice of allocation is also a part. In order to constitute an effective 
consent under this subdivision, however, the qualified check must be 
endorsed and cashed by the payee on or before the ninetieth day after 
the close of the payment period for the taxable year of the cooperative 
organization with respect to which the patronage dividend or payment is 
paid (or on or before such earlier day as may be prescribed by the 
cooperative organization). The endorsing and cashing of a qualified 
check shall be considered a consent only with respect to written notices 
of allocation which are part of the same patronage dividend or payment 
as the qualified check and for which a consent under subdivision (i) or 
(ii) of this subparagraph is not in effect. A qualified check is 
presumed to be endorsed and cashed within the 90-day period if the 
earliest bank endorsement which appears thereon bears a date no later 
than 3 days after the end of such 90-day period (excluding Saturdays, 
Sundays, and legal holidays).
    (b) The term qualified check means a check, or other instrument 
redeemable in money, which is paid as a part of a patronage dividend or 
payment described in subparagraph (1)(ii) of this paragraph, on which 
there is clearly imprinted a statement that the endorsement and cashing 
of the check or other instrument constitutes the consent of the payee to 
take into account, as provided in the Federal income tax laws, the 
stated dollar amount of any written notices of allocation which are paid 
as a part of the patronage dividend or payment of which such check or 
other instrument is also a part. A qualified check need not be in the 
form of an ordinary check which is payable through the banking system. 
It may, for example, be in the form of an instrument which is redeemable 
in money by the cooperative organization. The term qualified check does 
not include a check or other instrument paid as part of a patronage 
dividend or payment with respect to which a consent under subdivision 
(i) or (ii) of this subparagraph is in effect. In addition, the term 
qualified check does not include a check or other instrument which is 
paid as part of a patronage dividend or payment, if such patronage 
dividend or payment does not also include a written notice of allocation 
(other than a written notice of allocation that may be redeemed in cash 
at its stated dollar amount which meets the requirements of section 
1388(c)(1)(A) and subparagraph (2) of this paragraph). Thus, a check 
which is paid as part of a patronage dividend is not a qualified check 
(even though it has the required statement imprinted on it) if the 
remaining portion of such patronage dividend is paid in cash or if the 
only written notices of allocation included in the payment are qualified 
under section 1388(c)(1)(A) and subparagraph (2) of this paragraph 
(relating to certain written notices of allocation which are redeemable 
by the patron within a period of at least 90 days).
    (c) The provisions of this subdivision may be illustrated by the 
following example.

    Example: (1) The A Cooperative is a cooperative organization filing 
its income tax returns on a calendar year basis. None of its

[[Page 970]]

patrons have consented in the manner prescribed in section 1388(c)(2) 
(A) or (B). On August 1, 1964, the A Cooperative pays patronage 
dividends to its patrons with respect to their 1963 patronage, and the 
payment to each such patron is partly by a qualified check and partly in 
the form of a written notice of allocation which is not redeemable for 
cash. Each patron who endorses and cashes his qualified check on or 
before December 14, 1964 (the ninetieth day following the close of the 
1963 payment period) shall be considered to have consented with respect 
to the accompanying written notice of allocation and the amount of such 
check is treated as a patronage dividend paid in money on August 1, 
1964.
    (2) As to any patron who has not endorsed and cashed his qualified 
check by December 14, 1964, there is no consent and both the written 
notice of allocation and the qualified check constitute nonqualified 
written notices of allocation within the meaning of section 1388(d) and 
paragraph (d) of this section. If such a patron then cashes his check on 
January 2, 1965, he shall treat the amount received as an amount 
received on January 2, 1965, in redemption of a nonqualified written 
notice of allocation. Likewise, the cooperative shall treat the amount 
of the check as an amount paid on January 2, 1965, in redemption of a 
nonqualified written notice of allocation.

    (d) Nonqualified written notice of allocation. The term nonqualified 
written notice of allocation means a written notice of allocation which 
is not a qualified written notice of allocation described in section 
1388(c) and paragraph (c) of this section, or a qualified check which is 
not cashed on or before the ninetieth day after the close of the payment 
period for the taxable year of the cooperative organization for which 
the payment of which it is a part is paid.
    (e) Patron. The term patron includes any person with whom or for 
whom the cooperative association does business on a cooperative basis, 
whether a member or a nonmember of the cooperative association, and 
whether an individual, a trust, estate, partnership, company, 
corporation, or cooperative association.
    (f) Patronage and nonpatronage sourced items--(1) Directly related 
use test. Whether an item of income or deduction is patronage or 
nonpatronage sourced is determined by applying the directly related use 
test.
    (2) Patronage sourced income or deductions. If the income or 
deduction is produced by a transaction that actually facilitates the 
accomplishment of the cooperative's marketing, purchasing, or services 
activities, the income or deduction is from patronage sources.
    (3) Nonpatronage sourced income or deductions. If the transaction 
producing the income or deduction does not actually facilitate the 
accomplishment of the cooperative's marketing, purchasing, or services 
activities but merely enhances the overall profitability of the 
cooperative, being merely incidental to the association's cooperative 
operation, the income or deduction is from nonpatronage sources.
    (g) Applicability date. Paragraph (f) of this section applies to 
taxable years beginning after January 19, 2021. Taxpayers, however, may 
choose to apply the rules of paragraph (f) of this section for taxable 
years beginning on or before that date, provided the taxpayers apply the 
rules in their entirety and in a consistent manner.

[T.D. 6643, 28 FR 3160, Apr. 2, 1963, as amended by T.D. 9947, 86 FR 
5593, Jan. 19, 2021]



Sec.  1.1394-0  Table of contents.

    This section lists the major paragraph headings contained in Sec.  
1.1394-1.

             Sec.  1.1394-1 Enterprise zone facility bonds.

    (a) Scope.
    (b) Period of compliance.
    (1) In general.
    (2) Compliance after an issue is retired.
    (3) Deemed compliance.
    (c) Special rules for requirements of sections 1397B and 1397C.
    (1) Start of compliance period.
    (2) Compliance period for certain prohibited activities.
    (3) Minimum compliance period.
    (4) Initial testing date.
    (d) Testing on an average basis.
    (e) Resident employee requirements.
    (1) Determination of employee status.
    (2) Employee treated as zone resident.
    (3) Resident employee percentage.
    (f) Application to pooled financing bond and loan recycling 
programs.
    (g) Limitation on amount of bonds.
    (1) Determination of outstanding amount.
    (2) Pooled financing bond programs.
    (h) Original use requirement for purposes of qualified zone 
property.
    (i) Land.
    (j) Principal user.
    (1) In general.

[[Page 971]]

    (2) Rental of real property.
    (3) Pooled financing bond program.
    (k) Treatment as separately incorporated business.
    (l) Substantially all.
    (m) Application of sections 142 and 146 through 150.
    (1) In general.
    (2) Maturity limitation.
    (3) Volume cap.
    (4) Remedial actions.
    (n) Continuing compliance and change of use penalties.
    (1) In general.
    (2) Coordination with deemed compliance provisions.
    (3) Application to pooled financing bond and loan recycling 
programs.
    (4) Section 150(b)(4) inapplicable.
    (o) Refunding bonds.
    (1) In general.
    (2) Maturity limitation.
    (p) Examples.
    (q) Effective dates.
    (1) In general.
    (2) Elective retroactive application in whole.

[T.D. 8673, 61 FR 27259, May 31, 1996]



Sec.  1.1394-1  Enterprise zone facility bonds.

    (a) Scope. This section contains rules relating to tax-exempt bonds 
under section 1394 (enterprise zone facility bonds) to provide 
enterprise zone facilities in both empowerment zones and enterprise 
communities (zones). See sections 1394, 1397B, and 1397C for other rules 
and definitions.
    (b) Period of compliance--(1) In general. Except as provided in 
paragraphs (b)(2) and (c) of this section, the requirements under 
sections 1394 (a) and (b) applicable to enterprise zone facility bonds 
must be complied with throughout the greater of the following--
    (i) The remainder of the period during which the zone designation is 
in effect under section 1391 (zone designation period); and
    (ii) The period that ends on the weighted average maturity date of 
the enterprise zone facility bonds.
    (2) Compliance after an issue is retired. Except as provided in 
paragraph (c)(3) of this section, the requirements applicable to 
enterprise zone facility bonds do not apply to an issue after the date 
on which no enterprise zone facility bonds of the issue are outstanding.
    (3) Deemed compliance--(i) General rule. An issue is deemed to 
comply with the requirements of sections 1394 (a) and (b) if--
    (A) The issuer and the principal user in good faith attempt to meet 
the requirements of sections 1394 (a) and (b) throughout the period of 
compliance required under this section; and
    (B) Any failure to meet these requirements is corrected within a 
one-year period after the failure is first discovered.
    (ii) Exception. The provisions of paragraph (b)(3)(i) of this 
section do not apply to the requirements of section 1397B(d)(5)(A) 
(relating to certain prohibited business activities).
    (iii) Good faith. In order to satisfy the good faith requirement of 
paragraph (b)(3)(i)(A) of this section, the principal user must at least 
annually demonstrate to the issuer the principal user's monitoring of 
compliance with the requirements of sections 1394 (a) and (b).
    (c) Special rules for requirements of sections 1397B and 1397C--(1) 
Start of compliance period. Except as provided in paragraph (c)(2) of 
this section, the requirements of sections 1397B (relating to 
qualification as an enterprise zone business) and 1397C (relating to 
satisfaction of the rules for qualified zone property) do not apply 
prior to the initial testing date (as defined in paragraph (c)(4) of 
this section) if--
    (i) The issuer and the principal user reasonably expect on the issue 
date of the enterprise zone facility bonds that those requirements will 
be met by the principal user on or before the initial testing date; and
    (ii) The issuer and the principal user exercise due diligence to 
meet those requirements prior to the initial testing date.
    (2) Compliance period for certain prohibited activities. The 
requirements of section 1397B(d)(5)(A) (relating to certain prohibited 
business activities) must be complied with throughout the term of the 
enterprise zone facility bonds.
    (3) Minimum compliance period. The requirements of sections 1397B 
(b) or (c) and 1397C must be satisfied for a continuous period of at 
least three years

[[Page 972]]

after the initial testing date, notwithstanding that--
    (i) The period of compliance required under paragraph (b)(1) of this 
section expires before the end of the three-year period; or
    (ii) The enterprise zone facility bonds are retired before the end 
of the three-year period.
    (4) Initial testing date--(i) In general. Except as otherwise 
provided in paragraph (c)(4)(ii) of this section, the initial testing 
date is the date that is 18 months after the later of the issue date of 
the enterprise zone facility bonds or the date on which the financed 
property is placed in service; provided, however, it is not later than--
    (A) Three years after the issue date; or
    (B) Five years after the issue date, if the issue finances a 
construction project for which both the issuer and a licensed architect 
or engineer certify on or before the issue date of the enterprise zone 
facility bonds that more than three years after the issue date is 
necessary to complete construction of the project.
    (ii) Alternative initial testing date. If the issuer identifies as 
the initial testing date a date after the issue date of the enterprise 
zone facility bonds and prior to the initial testing date that would 
have been determined under paragraph (c)(4)(i) of this section, that 
earlier date is treated as the initial testing date.
    (d) Testing on an average basis. Compliance with each of the 
requirements of section 1397B (b) or (c) is tested each taxable year. 
Compliance with any of the requirements may be tested on an average 
basis, taking into account up to four immediately preceding taxable 
years plus the current taxable year. The earliest taxable year that may 
be taken into account for purposes of the preceding sentence is the 
taxable year that includes the initial testing date. A taxable year is 
disregarded if the part of the taxable year that falls in a required 
compliance period does not exceed 90 days.
    (e) Resident employee requirements--(1) Determination of employee 
status. For purposes of the requirement of section 1397B (b)(6) or 
(c)(5) that at least 35 percent of the employees are residents of the 
zone, the issuer and the principal user may rely on a certification, 
signed under penalties of perjury by the employee, provided--
    (i) The certification provides to the principal user the address of 
the employee's principal residence;
    (ii) The employee is required by the certification to notify the 
principal user of a change of the employee's principal residence; and
    (iii) Neither the issuer nor the principal user has actual knowledge 
that the principal residence set forth in the certification is not the 
employee's principal residence.
    (2) Employee treated as zone resident. If an issue fails to comply 
with the requirement of section 1397B (b)(6) or (c)(5) because an 
employee who initially resided in the zone moves out of the zone, that 
employee is treated as still residing in the zone if--
    (i) That employee was a bona fide resident of the zone at the time 
of the certification described in paragraph (e)(1) of this section;
    (ii) That employee continues to perform services for the principal 
user in an enterprise zone business and substantially all of those 
services are performed in the zone; and
    (iii) A resident of the zone meeting the requirements of section 
1397B (b)(5) or (c)(4) is hired by the principal user for the next 
available comparable (or lesser) position.
    (3) Resident employee percentage. For purposes of meeting the 
requirement of section 1397B (b)(6) or (c)(5) that at least 35 percent 
of the employees of an enterprise zone business are residents of a zone, 
paragraphs (e)(3) (i) and (ii) of this section apply.
    (i) The term employee includes a self-employed individual within the 
meaning of section 401(c)(1).
    (ii) The resident employee percentage is determined on any 
reasonable basis consistently applied throughout the period of 
compliance required under this section. The per-employee fraction (as 
defined in paragraph (e)(3)(ii)(A) of this section) or the employee 
actual work hour fraction (as defined in paragraph (e)(3)(ii)(B) of this 
section) are both reasonable methods.
    (A) The term per-employee fraction means the fraction, the numerator 
of

[[Page 973]]

which is, during the taxable year, the number of employees who work at 
least 15 hours a week for the principal user, who reside in the zone, 
and who are employed for at least 90 days, and the denominator of which 
is, during the same taxable year, the aggregate number of all employees 
who work at least 15 hours a week for the principal user and who are 
employed for at least 90 days.
    (B) The term employee actual work hour fraction means the fraction, 
the numerator of which is the aggregate total actual hours of work for 
the principal user of employees who reside in the zone during a taxable 
year, and the denominator of which is the aggregate total actual hours 
of work for the principal user of all employees during the same taxable 
year.
    (f) Application to pooled financing bond and loan recycling 
programs. In the case of a pooled financing bond program described in 
paragraph (g)(2) of this section or a loan recycling program described 
in paragraph (m)(2)(ii) of this section, the requirements of paragraphs 
(b) through (e) of this section apply on a loan-by-loan basis. See also 
paragraphs (g)(2) (relating to limitation on amount of bonds), (m)(2) 
(relating to maturity limitations), (m)(3) (relating to volume cap), and 
(m)(4) (relating to remedial actions) of this section.
    (g) Limitation on amount of bonds--(1) Determination of outstanding 
amount. Whether an issue satisfies the requirements of section 1394(c) 
(relating to the $3 million and $20 million aggregate limitations on the 
amount of outstanding enterprise zone facility bonds) is determined as 
of the issue date of that issue, based on the issue price of that issue 
and the adjusted issue price of outstanding enterprise zone facility 
bonds. Amounts of outstanding enterprise zone facility bonds allocable 
to any entity are determined under rules contained in section 
144(a)(10)(C) and the underlying regulations. Thus, the definition of 
principal user for purposes of section 1394(c) is different from the 
definition of principal user for purposes of paragraph (j) of this 
section.
    (2) Pooled financing bond programs--(i) In general. The limitations 
of section 1394(c) for an issue for a pooled financing bond program are 
determined with regard to the amount of the actual loans to enterprise 
zone businesses rather than the amount lent to intermediary lenders as 
defined in paragraph (g)(2)(ii) of this section. This paragraph (g)(2) 
applies only to the extent the proceeds of those enterprise zone 
facility bonds are loaned to one or more enterprise zone businesses 
within 42 months of the issue date of the enterprise zone facility bonds 
or are used to redeem enterprise zone facility bonds of the issue within 
that 42-month period.
    (ii) Pooled financing bond program defined. For purposes of this 
section, a pooled financing bond program is a program in which the 
issuer of enterprise zone facility bonds, in order to provide loans to 
enterprise zone businesses, lends the proceeds of the enterprise zone 
facility bonds to a bank or similar intermediary (intermediary lender) 
which must then relend the proceeds to two or more enterprise zone 
businesses.
    (h) Original use requirement for purposes of qualified zone 
property. In general, for purposes of section 1397C(a)(1)(B), the term 
original use means the first use to which the property is put within the 
zone. For purposes of section 1394, if property is vacant for at least a 
one-year period including the date of zone designation, use prior to 
that period is disregarded for purposes of determining original use. For 
this purpose, de minimis incidental uses of property, such as renting 
the side of a building for a billboard, are disregarded.
    (i) Land. The determination of whether land is functionally related 
and subordinate to qualified zone property is made in a manner 
consistent with the rules for exempt facilities under section 142.
    (j) Principal user--(1) In general. Except as provided in paragraph 
(j)(2) of this section, the term principal user means the owner of 
financed property.
    (2) Rental of real property--(i) A lessee as the principal user. If 
an owner of real property financed with enterprise zone facility bonds 
is not an enterprise zone business within the meaning of section 1397B, 
but the rental of the property is a qualified business within the 
meaning of section 1397B(d)(2), the term

[[Page 974]]

principal user for purposes of sections 1394 (b) and (e) means the 
lessee or lessees.
    (ii) Allocation of enterprise zone facility bonds. If a lessee is 
the principal user of real property under paragraph (j)(2)(i) of this 
section, then proceeds of enterprise zone facility bonds may be 
allocated to expenditures for real property only to the extent of the 
property allocable to the lessee's leased space, including expenditures 
for common areas.
    (3) Pooled financing bond program. An intermediary lender in a 
pooled financing bond program described in paragraph (g)(2) of this 
section is not treated as the principal user.
    (k) Treatment as separately incorporated business. For purposes of 
section 1394(b)(3)(B), a trade or business may be treated as separately 
incorporated if allocations of income and activities attributable to the 
business conducted within the zone are made using a reasonable 
allocation method and if that trade or business has evidence of those 
allocations sufficient to establish compliance with the requirements of 
paragraphs (b) through (f) of this section. Whether an allocation method 
is reasonable will depend upon the facts and circumstances. An 
allocation method will not be considered to be reasonable unless the 
allocation method is applied consistently by the trade or business and 
is consistent with the purposes of section 1394.
    (l) Substantially all. For purposes of sections 1397B and 1397C(a), 
the term substantially all means 85 percent.
    (m) Application of sections 142 and 146 through 150--(1) In general. 
Except as provided in this paragraph (m), enterprise zone facility bonds 
are treated as exempt facility bonds that are described in section 
142(a), and all regulations generally applicable to exempt facility 
bonds apply to enterprise zone facility bonds. For this purpose, 
enterprise zone businesses are treated as meeting the public use 
requirement. Sections 147(c)(1)(A) (relating to limitations on financing 
the acquisition of land), 147(d) (relating to financing the acquisition 
of existing property), and 142(b)(2) (relating to limitations on 
financing office space) do not apply to enterprise zone facility bonds. 
See also paragraph (n)(4) of this section.
    (2) Maturity limitation--(i) Requirements. An issue of enterprise 
zone facility bonds, the proceeds of which are to be used as part of a 
loan recycling program, satisfies the requirements of section 147(b) 
if--
    (A) Each loan satisfies the requirements of section 147(b) 
(determined by treating each separate loan as a separate issue); and
    (B) The term of the issue does not exceed 30 years.
    (ii) Loan recycling program defined. A loan recycling program is a 
program in which--
    (A) The issuer reasonably expects as of the issue date of the 
enterprise zone facility bonds that loan repayments from principal users 
will be used to make additional loans during the zone designation 
period;
    (B) Repayments of principal on loans (including prepayments) 
received during the zone designation period are used within six months 
of the date of receipt either to make new loans to enterprise zone 
businesses or to redeem enterprise zone facility bonds that are part of 
the issue; and
    (C) Repayments of principal on loans (including prepayments) 
received after the zone designation period are used to redeem enterprise 
zone facility bonds that are part of the issue within six months of the 
date of receipt.
    (3) Volume cap. For purposes of applying section 146(f)(5)(A) 
(relating to elective carryforward of unused volume limitation), issuing 
enterprise zone facility bonds is a carryforward purpose.
    (4) Remedial actions. In the case of a pooled financing bond program 
described in paragraph (g)(2) of this section or a loan recycling 
program described in paragraph (m)(2)(ii) of this section, if a loan 
fails to meet the requirements of paragraphs (b) through (f) of this 
section, within six months of noncompliance (after taking into account 
the deemed compliance provisions of paragraph (b)(3) of this section, if 
applicable), an amount equal to the outstanding loan principal must be 
prepaid and the issuer must--
    (i) Reloan the amount of the prepayment; or

[[Page 975]]

    (ii) Use the prepayment to redeem an amount of outstanding 
enterprise zone facility bonds equal to the outstanding principal amount 
of the loan that no longer meets those requirements.
    (n) Continuing compliance and change of use penalties--(1) In 
general. The penalty provisions of section 1394(e) apply throughout the 
period of compliance required under paragraph (b)(1) of this section.
    (2) Coordination with deemed compliance provisions. Section 
1394(e)(2) does not apply during any period during which the issue is 
deemed to comply with the requirements of section 1394 under the deemed 
compliance provisions of paragraph (b)(3) of this section.
    (3) Application to pooled financing bond and loan recycling 
programs. In the case of a pooled financing bond program described in 
paragraph (g)(2) of this section or a loan recycling program described 
in paragraph (m)(2)(ii) of this section, section 1394(e) applies on a 
loan-by-loan basis.
    (4) Section 150(b)(4) inapplicable. Section 150(b)(4) does not apply 
to enterprise zone facility bonds.
    (o) Refunding bonds--(1) In general. An issue of bonds issued after 
the zone designation period to refund enterprise zone facility bonds 
(other than in an advance refunding) are treated as enterprise zone 
facility bonds if the refunding issue and the prior issue, if treated as 
a single combined issue, would meet all of the requirements for 
enterprise zone facility bonds, except the requirements in section 
1394(c). For example, the compliance period described in paragraph 
(b)(1) of this section is calculated taking into account any extension 
of the weighted average maturity of the refunding issue compared to the 
remaining weighted average maturity of the prior issue. The proceeds of 
the refunding issue are allocated to the same expenditures and purpose 
investments as the prior issue.
    (2) Maturity limitation. The maturity limitation of section 147(b) 
is applied to a refunding issue by taking into account the issuer's 
reasonable expectations about the economic life of the financed property 
as of the issue date of the prior issue and the actual weighted average 
maturity of the combined refunding issue and prior issue.
    (p) Examples. The following examples illustrate paragraphs (a) 
through (o) of this section:

    Example 1. Averaging of enterprise zone business requirements. City 
C issues enterprise zone facility bonds, the proceeds of which are 
loaned by C to Corporation B to finance the acquisition of equipment for 
its existing business located in a zone. On the issue date of the 
enterprise zone facility bonds, B meets all of the requirements of 
section 1397B(b), except that only 25% of B's employees reside in the 
zone. C and B reasonably expect on the issue date to meet all 
requirements of section 1397B(b) by the date that is 18 months after the 
equipment is placed in service (the initial testing date). In each of 
the first, second, and third taxable years after the initial testing 
date, 35%, 40% and 45%, respectively, of B's employees are zone 
residents. In the fourth year after the testing date, only 25% of B's 
employees are zone residents. B continues to meet the 35% resident 
employee requirement, because the average of zone resident employees for 
those four taxable years is approximately 36%. The percentage of zone 
residents employed by B before the initial testing date is not included 
in determining whether B continues to comply with the 35% resident 
employee requirement.
    Example 2. Measurement of resident employee percentage. Authority D 
issues enterprise zone facility bonds, the proceeds of which are loaned 
to Sole Proprietor F to establish an accounting business in a zone. In 
the first year after the initial testing date, the staff working for F 
includes F, who works 40 hours per week and does not live in the zone, 
one employee who resides in the zone and works 40 hours per week, one 
employee who does not reside in the zone and works 20 hours per week, 
and one employee who does not reside in the zone and works 10 hours per 
week. F meets the 35% resident employee test by calculating the 
percentage on the basis of employee actual work hours as described in 
paragraph (e)(3)(ii)(B) of this section. If F uses the per-employee 
basis as described in paragraph (e)(3)(ii)(A) of this section to 
determine if the resident employee test is met, the percentage of 
employees who are zone residents on a per-employee basis is only 33% 
because F must exclude from the numerator and the denominator the 
employee who works only 10 hours per week. If F calculates the resident 
employee test as a percentage of employee actual work hours as described 
in paragraph (e)(3)(ii)(B) of this section in the first year, F must 
calculate the resident employee test as a percentage of employee actual 
work hours each year.

[[Page 976]]

    Example 3. Active conduct of business within the zone. State G 
issues enterprise zone facility bonds and loans the proceeds to 
Corporation H to finance the acquisition of equipment for H's mail order 
clothing business, which is located in a zone. H purchases the supplies 
for its clothing business from suppliers located both within and outside 
of the zone and expects that orders will be received both from customers 
who will reside or work within the zone and from others outside the 
zone. All orders are received and filled at, and are shipped from, H's 
clothing business located in the zone. H meets the requirement that at 
least 80% of its gross income is derived from the active conduct of 
business within the zone.
    Example 4. Enterprise zone business definition. City J issues 
enterprise zone facility bonds, the proceeds of which are loaned to 
Partnership K to finance the acquisition of equipment for its printing 
operation located in the zone. All orders are taken and completed, and 
all billing and accounting activities are performed, at the print shop 
located in the zone. K, on occasion, uses its equipment (including its 
trucks) and employees to deliver large print jobs to customers who 
reside outside of the zone. So long as K is able to establish that its 
trucks are used in the zone at least 85% of the time and its employees 
perform at least 85% of services for K in the zone, K meets the 
requirements of sections 1397B(b) (3) and (5).
    Example 5. Treatment as a separately incorporated business. The 
facts are the same as in Example 4 except that six years after the issue 
date of the enterprise zone facility bonds, K determines to expand its 
operations to a second location outside of the boundaries of the zone. 
Although the expansion would result in the failure of K to meet the 
tests of 1397B(b), K, using a reasonable allocation method, allocates 
income and activities to its operations within the zone and has evidence 
of these allocations sufficient to establish compliance with the 
requirements of paragraphs (b) through (f) of this section. The bonds 
will not fail to be enterprise zone facility bonds merely because of the 
expansion.
    Example 6. Treatment of pooled financing bond programs. Authority L 
issues bonds in the aggregate principal amount of $5,000,000 and loans 
the proceeds to Bank M pursuant to a loans-to-lenders program. M does 
not meet the definition of enterprise zone business contained in section 
1397B. Prior to the issue date of the bonds, L held a public hearing 
regarding issuance of the bonds for the loans-to-lenders program, 
describing the projects of identified borrowers to be financed initially 
with $4,000,000 of the proceeds of the bonds. The applicable elected 
representative of L approved issuance of the bonds subsequent to the 
public hearing. The loan agreement between L and M provides that the 
other proceeds of the bonds will be held by M and loaned to borrowers 
that qualify as enterprise zone businesses, following a public hearing 
and approval by the applicable elected representative of L of each loan 
by M to an enterprise zone business. None of the loans will be in 
principal amounts in excess of $3,000,000. The loans by M will otherwise 
meet the requirements of section 1394. The bonds will be enterprise zone 
facility bonds.
    Example 7. Original use requirement for purposes of qualified zone 
property. City N issues enterprise zone facility bonds, the proceeds of 
which are loaned to Corporation P to finance the acquisition of 
equipment. P uses the proceeds after the zone designation date to 
purchase used equipment located outside of the zone and places the 
equipment in service at its location in the zone. Substantially all of 
the use of the equipment is in the zone and is in the active conduct of 
a qualified business by P. The equipment is treated as qualified 
enterprise zone property under section 1397C because P makes the first 
use of the property within the zone after the zone designation date.
    Example 8. Principal user. State R issues enterprise zone facility 
bonds and loans the proceeds to Partnership S to finance the 
construction of a small shopping center to be located in a zone. S is in 
the business of commercial real estate. S is not an enterprise zone 
business, but has secured one anchor lessee, Corporation T, for the 
shopping center. T would qualify as an enterprise zone business. S will 
derive 60% of its gross rental income of the shopping center from T. S 
does not anticipate that the remaining rental income will come from 
enterprise zone businesses. T will occupy 60% of the total rentable 
space in the shopping center. S can use enterprise zone facility bond 
proceeds to finance the portion of the costs of the shopping center 
allocable to T (60%) because T is treated as the principal user of the 
enterprise zone facility bond proceeds.
    Example 9. Remedial actions. State W issues pooled financing 
enterprise zone facility bonds, the proceeds of which will be loaned to 
several enterprise zone businesses in the two enterprise communities and 
one empowerment zone in W. Proceeds of the pooled financing bonds are 
loaned to Corporation X, an enterprise zone business, for a term of 10 
years. Six years after the date of the loan, X expands its operations 
beyond the empowerment zone and is no longer able to meet the 
requirements of section 1394. X does not reasonably expect to be able to 
cure the noncompliance. The loan documents provide that X must prepay 
its loan in the event of noncompliance. W does not expect to be able to 
reloan the prepayment by X within six months of noncompliance. X's 
noncompliance will not affect the qualification of the

[[Page 977]]

pooled financing bonds as enterprise zone facility bonds if W uses the 
proceeds from the loan prepayment to redeem outstanding enterprise zone 
facility bonds within six months of noncompliance in an amount 
comparable to the outstanding amount of the loan immediately prior to 
prepayment. X will be denied an interest expense deduction for the 
interest accruing from the first day of the taxable year in which the 
noncompliance began.

    (q) Effective dates--(1) In general. Except as otherwise provided in 
this section, the provisions of this section apply to all issues issued 
after July 30, 1996, and subject to section 1394.
    (2) Elective retroactive application in whole. An issuer may apply 
the provisions of this section in whole, but not in part, to any issue 
that is outstanding on July 30, 1996, and is subject to section 1394.

[T.D. 8673, 61 FR 27259, May 31, 1996]

                   Empowerment Zone Employment Credit



Sec.  1.1396-1  Qualified zone employees.

    (a) In general. A qualified zone employee of an employer is an 
employee who satisfies the location-of-services requirement and the 
abode requirement with respect to the same empowerment zone and is not 
otherwise excluded by section 1396(d).
    (1) Location-of-services requirement. The location-of-services 
requirement is satisfied if substantially all of the services performed 
by the employee for the employer are performed in the empowerment zone 
in a trade or business of the employer.
    (2) Abode requirement. The abode requirement is satisfied if the 
employee's principal place of abode while performing those services is 
in the empowerment zone.
    (b) Period for applying location-of-services requirement. In 
applying the location-of-services requirement, an employer may use 
either the pay period method described in paragraph (b)(1) of this 
section or the calendar year method described in paragraph (b)(2) of 
this section. For each taxable year of an employer, the employer must 
either use the pay period method with respect to all of its employees or 
use the calendar year method with respect to all of its employees. The 
employer may change the method applied to all of its employees from one 
taxable year to the next.
    (1) Pay period method--(i) Relevant period. Under the pay period 
method, the relevant period for applying the location-of-services 
requirement is each pay period in which an employee provides services to 
the employer during the calendar year with respect to which the credit 
is being claimed (i.e., the calendar year that ends with or within the 
relevant taxable year). If an employer has one pay period for certain 
employees and a different pay period for other employees (e.g., a weekly 
pay period for hourly wage employees and a bi-weekly pay period for 
salaried employees), the pay period actually applicable to a particular 
employee is the relevant pay period for that employee under this method.
    (ii) Application of method. Under this method, an employee does not 
satisfy the location-of-services requirement during a pay period unless 
substantially all of the services performed by the employee for the 
employer during that pay period are performed within the empowerment 
zone in a trade or business of the employer.
    (2) Calendar year method--(i) Relevant period. Under the calendar 
year method, the relevant period for an employee is the entire calendar 
year with respect to which the credit is being claimed. However, for any 
employee who is employed by the employer for less than the entire 
calendar year, the relevant period is the portion of that calendar year 
during which the employee is employed by the employer.
    (ii) Application of method. Under this method, an employee does not 
satisfy the location-of-services requirement during any part of a 
calendar year unless substantially all of the services performed by the 
employee for the employer during that calendar year (or, if the employee 
is employed by the employer for less than the entire calendar year, the 
portion of that calendar year during which the employee is employed by 
the employer) are performed within the empowerment zone in a trade or 
business of the employer.

[[Page 978]]

    (3) Examples. This paragraph (b) may be illustrated by the following 
examples. In each example, the following assumptions apply. The 
employees satisfy the abode requirement at all relevant times and all 
services performed by the employees for their employer are performed in 
a trade or business of the employer. The employees are not precluded 
from being qualified zone employees by section 1396(d)(2) (certain 
employees ineligible). No portion of the employees' wages is precluded 
from being qualified zone wages by section 1396(c)(2) (only first 
$15,000 of wages taken into account) or section 1396(c)(3) (coordination 
with targeted jobs credit and work opportunity credit). The examples are 
as follows:

    Example 1. (i) Employer X has a weekly pay period for all its 
employees. Employee A works for X throughout 1997. During each of the 
first 20 weekly pay periods in 1997, substantially all of A's work for X 
is performed within the empowerment zone in which A resides. A also 
works in the zone at various times during the rest of the year, but 
there is no other pay period in which substantially all of A's work for 
X is performed within the empowerment zone. Employer X uses the pay 
period method.
    (ii) For each of the first 20 pay periods of 1997, A is a qualified 
zone employee, all of A's wages from X are qualified zone wages, and X 
may claim the empowerment zone employment credit with respect to those 
wages. X cannot claim the credit with respect to any of A's wages for 
the rest of 1997.
    Example 2. (i) Employer Y has a weekly pay period for its factory 
workers and a bi-weekly pay period for its office workers. Employee B 
works for Y in various factories and Employee C works for Y in various 
offices. Employer Y uses the pay period method.
    (ii) Y must use B's weekly pay periods to determine the periods (if 
any) in which B is a qualified zone employee. Y may claim the 
empowerment zone employment credit with respect to B's wages only for 
the weekly pay periods for which B is a qualified zone employee, because 
those are B's only wages that are qualified zone wages. Y must use C's 
bi-weekly pay periods to determine the periods (if any) in which C is a 
qualified zone employee. Y may claim the credit with respect to C's 
wages only for the bi-weekly pay periods for which C is a qualified zone 
employee, because those are C's only wages that are qualified zone 
wages.
    Example 3. (i) Employees D and E work for Employer Z throughout 
1997. Although some of D's work for Z in 1997 is performed outside the 
empowerment zone in which D resides, substantially all of it is 
performed within that empowerment zone. E's work for Z is performed 
within the empowerment zone in which E resides for several weeks of 1997 
but outside the zone for the rest of the year so that, viewed on an 
annual basis, E's work is not substantially all performed within the 
empowerment zone. Employer Z uses the calendar year method.
    (ii) D is a qualified zone employee for the entire year, all of D's 
1997 wages from Z are qualified zone wages, and Z may claim the 
empowerment zone employment credit with respect to all of those wages, 
including the portion attributable to work outside the zone. Under the 
calendar year method, E is not a qualified zone employee for any part of 
1997, none of E's 1997 wages are qualified zone wages, and Z cannot 
claim any empowerment zone employment credit with respect to E's wages 
for 1997. Z cannot use the calendar year method for D and the pay period 
method for E because Z must use the same method for all employees. For 
1998, however, Z can switch to the pay period method for E if Z also 
switches to the pay period method for D and all of Z's other employees.

    (c) Effective date. This section applies with respect to wages paid 
or incurred on or after December 21, 1994.

[T.D. 8747, 62 FR 67727, Dec. 30, 1997]



Sec.  1.1397E-1  Qualified zone academy bonds.

    (a) In general--(1) Overview. In general, a qualified zone academy 
bond (QZAB or QZABs) is a taxable bond issued by a state or local 
government the proceeds of which are used to improve certain eligible 
public schools. An eligible taxpayer that holds a QZAB generally is 
allowed annual Federal income tax credits in lieu of periodic interest 
payments. These credits compensate the eligible taxpayer for lending 
money to the issuer and function as payments of interest on the bond. 
Accordingly, this section generally treats the allowance of a credit as 
if it were a payment of interest on the bond. This section also provides 
other rules for QZABs, including rules governing the credit rate, the 
private business contribution requirement, the maximum term, use and 
expenditure of proceeds, remedial actions, eligible issuers, arbitrage 
investment restrictions, and information reporting.
    (2) Certain definitions--(i) In general. For purposes of this 
section, except as otherwise provided in this section, the

[[Page 979]]

following definitions apply: the definitions set forth in this section; 
the definitions used for general tax-exempt bond purposes in Sec.  
1.150-1; and the definitions used for purposes of the arbitrage 
investment restrictions on tax-exempt bonds in Sec.  1.148-1(b).
    (ii) Applicable definition of proceeds--(A) Use and expenditure 
provisions. Except as provided in paragraphs (a)(2)(ii)(B) and 
(a)(2)(ii)(C) of this section, for purposes of all applicable 
requirements regarding use and expenditure of proceeds of QZABs under 
section 1397E and this section, ``proceeds'' means ``sale proceeds,'' as 
defined in Sec.  1.148-1(b), plus ``investment proceeds,'' as defined in 
Sec.  1.148-1(b).
    (B) Private business contribution requirement. For purposes of the 
private business contribution requirement of section 1397E(d)(2), 
``proceeds'' means ``sale proceeds,'' as defined in Sec.  1.148-1(b).
    (C) Arbitrage investment restrictions. For purposes of the scope of 
application of the arbitrage investment restrictions under section 
1397E(g) and paragraph (i) of this section, ``proceeds'' generally means 
gross proceeds, as defined in Sec.  1.148-1(b). In addition, in applying 
the arbitrage investment restrictions under paragraph (i) of this 
section and under section 148, the various applicable definitions of the 
various types of proceeds of tax-exempt bonds under Sec.  1.148-1(b) 
shall apply.
    (b) Credit rate. The Secretary shall determine monthly (or more 
often as deemed necessary by the Secretary) the credit rate the 
Secretary estimates will generally permit the issuance of a qualified 
zone academy bond without discount and without interest cost to the 
issuer. The manner for ascertaining the credit rate for a qualified zone 
academy bond as determined by the Secretary shall be set forth in 
procedures, notices, forms, or instructions prescribed by the 
Commissioner.
    (c) Private business contribution requirement--(1) Reasonable 
discount rate. To determine the present value (as of the issue date) of 
qualified contributions from private entities under section 1397E(d)(2), 
the issuer must use a reasonable discount rate. The credit rate 
determined under paragraph (b) of this section is a reasonable discount 
rate.
    (2) Definition of private entities. For purposes of section 
1397E(d)(2)(A), the term private entities includes any person (as 
defined in section 7701(a)) other than the United States, a State or 
local government, or any agency or instrumentality thereof or related 
party with respect thereto. To determine whether a person is related to 
the United States or a State or local government under this paragraph 
(c)(2), rules similar to those for determining whether a person is a 
related party under Sec.  1.150-1(b) shall apply (treating the United 
States as a governmental unit for purposes of Sec.  1.150-1(b)).
    (3) Qualified contribution. For purposes of section 1397E(d)(2)(A), 
the term qualified contribution means any contribution (of a type and 
quality acceptable to the eligible local education agency) of any 
property or service described in section 1397E(d)(2)(B)(i), (ii), (iii), 
(iv) or (v). In addition, cash received with respect to a qualified zone 
academy from a private entity (other than cash received indirectly from 
a person that is not a private entity as part of a plan to avoid the 
requirements of section 1397E) constitutes a qualified contribution if 
it is to be used to purchase any property or service described in 
section 1397E(d)(2)(B)(i), (ii), (iii), (iv) or (v). Services of 
employees of the eligible local education agency do not constitute 
qualified contributions.
    (d) Maximum term. The maximum term for a QZAB is determined under 
section 1397E(d)(3) by using a discount rate equal to 110 percent of the 
long-term adjusted applicable Federal rate (AFR), compounded semi-
annually, for the month in which the bond is sold. The Internal Revenue 
Service publishes this figure each month in a revenue ruling that is 
published in the Internal Revenue Bulletin. See Sec.  
601.601(d)(2)(ii)(b) of this chapter. A bond is sold on the sale date, 
as defined in Sec.  1.150-1(c)(6), which is the first day on which there 
is a binding contract in writing for the sale or exchange of the bond.
    (e) Tax credit--(1) Eligible taxpayer. An eligible taxpayer (within 
the meaning of section 1397E(d)(6)) that holds a

[[Page 980]]

qualified zone academy bond on a credit allowance date is allowed a tax 
credit against the Federal income tax imposed on the taxpayer for the 
taxable year that includes the credit allowance date. The amount of the 
credit is equal to the product of the credit rate and the outstanding 
principal amount of the bond on the credit allowance date. The credit is 
subject to a limitation based on the eligible taxpayer's income tax 
liability. See section 1397E(c).
    (2) Ineligible taxpayer. A taxpayer that is not an eligible taxpayer 
is not allowed a credit.
    (f) Treatment of the allowance of the credit as a payment of 
interest--(1) General rule. The holder of a qualified zone academy bond 
must treat the bond as if it pays qualified stated interest (within the 
meaning of Sec.  1.1273-1(c)) on each credit allowance date. The amount 
of the deemed payment of interest on each credit allowance date is equal 
to the product of the credit rate and the outstanding principal amount 
of the bond on that date. Thus, for example, if the holder uses an 
accrual method of accounting, the holder must accrue as interest income 
the amount of the credit over the one-year accrual period that ends on 
the credit allowance date.
    (2) Adjustment if the holder cannot use the credit to offset a tax 
liability. If a holder holds a qualified zone academy bond on the credit 
allowance date but cannot use all or a portion of the credit to reduce 
its income tax liability (for example, because the holder is not an 
eligible taxpayer or because the limitation in section 1397E(c) 
applies), the holder is allowed a deduction for the taxable year that 
includes the credit allowance date (or, at the option of the holder, the 
next succeeding taxable year). The amount of the deduction is equal to 
the amount of the unused credit deemed paid on the credit allowance 
date.
    (g) Not a tax-exempt obligation. A qualified zone academy bond is 
not an obligation the interest on which is excluded from gross income 
under section 103(a).
    (h) Use of proceeds--(1) In general. Section 1397E(d)(1) provides 
that a bond issued as part of an issue is a QZAB only if, among other 
requirements, at least 95 percent of the proceeds of the issue are to be 
used for a qualified purpose with respect to a qualified zone academy 
established by an eligible local education agency (as defined in section 
1397E(d)(4)(B)), and the issue meets the requirements of section 
1397E(f) and (g). Section 1397E(d)(5) defines qualified purpose, with 
respect to any qualified zone academy, as rehabilitating or repairing 
the public school facility in which such academy is established, 
providing equipment for use at such academy, developing course materials 
for education to be provided at such academy, and training teachers and 
other school personnel in such academy. Section 1397E(d)(4)(A) defines 
qualified zone academy as any public school (or academic program within 
a public school) that is established by and operated under the 
supervision of an eligible local education agency to provide education 
or training below the postsecondary level and that meets the 
requirements of section 1397E(d)(4)(A)(i), (ii), (iii) and (iv).
    (2) Use of proceeds requirements. An issue meets the requirements of 
sections 1397E (d)(1)(A) and (f) only if--
    (i) The issuer reasonably expects, as of the issue date of the 
issue, that--
    (A) At least 95 percent of the proceeds from the sale of the issue 
are to be spent for qualified purposes with respect to qualified zone 
academies within the 5-year period beginning on the issue date of the 
QZAB;
    (B) A binding commitment with a third party to spend at least 10 
percent of the proceeds from the sale of the issue will be incurred 
within the 6-month period beginning on the issue date of the QZAB;
    (C) At least 95 percent of the proceeds from the sale of the issue 
will be spent for qualified purposes with respect to a qualified zone 
academy with due diligence (with due diligence measured by the 
reasonableness standard under Sec.  1.148-1(b)); and
    (D) At least 95 percent of the proceeds of the issue will be used 
for qualified purposes with respect to a qualified zone academy for the 
entire term of the issue (without regard to any redemption provision); 
and
    (ii) Except as otherwise provided in paragraph (h)(8) of this 
section, at least 95 percent of the proceeds of the issue

[[Page 981]]

are actually used for qualified purposes with respect to a qualified 
academy for the entire term of the issue (without regard to any 
redemption provision).
    (3) Extension of 5-year period. The Commissioner may extend the 
period described in paragraph (h)(2)(i)(A) of this section if the 
issuer, prior to the end of such period, submits a private ruling 
request, and establishes to the satisfaction of the Commissioner that--
    (i) The failure to satisfy the 5-year spending requirement is due to 
reasonable cause; and
    (ii) The expenditure of at least 95 percent of the proceeds from the 
sale of the issue for a qualified purpose with respect to a qualified 
zone academy will continue to proceed with due diligence.
    (4) Unspent proceeds. For purposes of paragraphs (h)(2)(i)(D) and 
(h)(2)(ii) of this section, during the period described in paragraph 
(h)(2)(i)(A) of this section, including any extension under paragraph 
(h)(3) of this section, unspent proceeds are treated as used for a 
qualified purpose with respect to a qualified zone academy if the issuer 
reasonably expects to proceed with due diligence to spend those proceeds 
for a qualified purpose with respect to a qualified zone academy during 
that period.
    (5) Proceeds spent for rehabilitation, repair or equipment--(i) In 
general. Under section 1397E(d)(5)(A) the term qualified purpose with 
respect to any qualified zone academy includes rehabilitating or 
repairing the public school facility in which such academy is 
established. For this purpose, in determining whether proceeds are spent 
for rehabilitation, rules similar to those under section 47(c) (other 
than sections 47(c)(1)(B) and 47(c)(2)(B)(iv)) shall apply. Under 
section 1397E(d)(5)(B) the term qualified purpose also includes 
providing equipment for use at such academy. If proceeds of an issue are 
spent for a purpose described in section 1397E(d)(5)(A) or (B) with 
respect to a qualified zone academy, then those proceeds are treated as 
used for a qualified purpose with respect to the academy during any 
period after such expenditure that--
    (A) The property financed with those proceeds is used for the 
purposes of the academy; and
    (B) The academy maintains its status as a qualified zone academy 
under section 1397E(d)(4).
    (ii) Retirement from service. The retirement from service of 
financed property due to normal wear or obsolescence does not cause the 
property to fail to be used for a qualified purpose with respect to a 
qualified zone academy.
    (6) Proceeds spent to develop course materials or train teachers. 
Section 1397E(d)(5)(C) and (D) provides that the term qualified purpose 
with respect to any qualified zone academy includes developing course 
materials for education to be provided at such academy, and training 
teachers and other school personnel in such academy. If proceeds of an 
issue are spent for a purpose described in section 1397E(d)(5)(C) or (D) 
with respect to a qualified zone academy, then those proceeds are 
treated as used for a qualified purpose with respect to the academy 
during any period after such expenditure.
    (7) Special rule for determining status as qualified zone academy. 
Section 1397E(d)(4)(A)(iv) provides that a public school (or academic 
program within a public school) is a qualified zone academy only if, 
among other requirements, the public school is located in an empowerment 
zone or enterprise community (as defined in section 1393), or there is a 
reasonable expectation (as of the issue date of the issue) that at least 
35 percent of the students attending the school or participating in the 
program (as the case may be) will be eligible for free or reduced-cost 
lunches under the school lunch program established under the Richard B. 
Russell National School Lunch Act. For purposes of determining whether 
an issue complies with section 1397E(d)(4)(A)(iv)--
    (i) A public school is treated as located in an empowerment zone or 
enterprise community for the entire term of the issue if the public 
school is located in an empowerment zone or enterprise community on the 
issue date of the issue; and
    (ii) The determination of whether there is a reasonable expectation 
(as of the issue date of the issue) that at

[[Page 982]]

least 35 percent of the students attending the school or participating 
in the program (as the case may be) will be eligible for free or 
reduced-cost lunches under the school lunch program established under 
the Richard B. Russell National School Lunch Act is based on 
expectations regarding the one-year period following the issue date.
    (8) Remedial actions--(i) General rule. If less than 95 percent of 
the proceeds of an issue are properly used (as determined under 
paragraph (h)(8)(ii)(D) of this section), the issue will be treated as 
meeting the requirements of section 1397E(d)(1)(A) if the issue met the 
requirements of paragraph (h)(2)(i) of this section and a remedial 
action is taken under paragraph (h)(8)(ii) or (iii) of this section.
    (ii) Redemption or defeasance--(A) In general. A remedial action is 
taken under this paragraph (h)(8)(ii) if the requirements of paragraphs 
(h)(8)(ii)(B) and (C) of this section are met.
    (B) Retirement of nonqualified bonds--(1) In general. The 
requirements of this paragraph (h)(8)(ii)(B) are met if--
    (i) All of the nonqualified bonds of the issue (as determined under 
Sec.  1.142-2(e)) are redeemed within 90 days after the date on which 
the failure to properly use proceeds occurs; or
    (ii) To the extent proceeds of the issue that have been actually 
spent for a qualified purpose with respect to a qualified zone academy, 
if any nonqualified bonds of the issue are not redeemed within 90 days 
after the date on which the failure to properly use such proceeds occurs 
(the unredeemed nonqualified bonds), a defeasance escrow is established 
for the unredeemed nonqualified bonds within 90 days after the date on 
which the failure to properly use proceeds occurs.
    (2) Special rule for dispositions for cash. If the failure to 
properly use proceeds occurs because of a disposition of financed 
property described in section 1397E(d)(5)(A) or (B) and the 
consideration for the disposition is exclusively cash, the requirements 
of this paragraph (h)(8)(ii)(B) are met if all of the disposition 
proceeds (as defined in paragraph (h)(8)(iv) of this section) are used 
within 90 days after the date of the disposition to redeem, or establish 
a defeasance escrow for, the nonqualified bonds (as determined under 
Sec.  1.142-2(e)).
    (3) Definition of defeasance escrow. For purposes of this section, a 
defeasance escrow is an irrevocable escrow established to retire 
nonqualified bonds on the earliest call date after the date on which the 
failure to properly use proceeds occurs in an amount that is sufficient 
to retire nonqualified bonds on that call date. At least 90 percent of 
the weighted average amount in a defeasance escrow must be invested in 
investments (as defined in Sec.  1.148-1(b)), except that no amount in a 
defeasance escrow may be invested in any investment the obligor (or any 
person that is a related party with respect to the obligor within the 
meaning of Sec.  1.150-1(b)) of which is a user of proceeds of the 
bonds. All purchases or sales of an investment in a defeasance escrow 
must be made at the fair market value of the investment within the 
meaning of Sec.  1.148-5(d)(6).
    (C) Additional rules--(1) Limitation on source of funding. Proceeds 
of an issue of QZABs (other than unspent proceeds of the issue for which 
the failure to properly use proceeds occurs) must not be used to redeem 
or defease nonqualified bonds under paragraph (h)(8)(ii)(B) of this 
section.
    (2) Rebate requirement. The issuer must pay to the United States, at 
the same time and in the same manner as rebate amounts are required to 
be paid under Sec.  1.148-3 (or at such other time or in such other 
manner as the Commissioner may prescribe), any investment earnings on 
amounts in a defeasance escrow established under paragraph (h)(8)(ii)(B) 
of this section that are in excess of the yield on the issue of QZABs 
with respect to which the defeasance escrow was established. For this 
purpose, the first computation period begins on the date on which the 
defeasance escrow is established.
    (3) Notice of defeasance. The issuer must provide written notice to 
the Commissioner, at the place designated in Sec.  1.150-5(a), of the 
establishment of the defeasance escrow within 90 days of the date the 
defeasance escrow is established.
    (D) When a failure to properly use proceeds occurs--(1) Unspent 
proceeds. For

[[Page 983]]

unspent proceeds, a failure to properly use proceeds occurs on the 
earliest of--
    (i) The first date on which the public school (or academic program 
within the public school) fails to constitute a qualified zone academy;
    (ii) The first date on which the issuer fails to have a reasonable 
expectation to proceed with due diligence to spend at least 95 percent 
of the proceeds of the issue for a qualified purpose with respect to a 
qualified zone academy; or
    (iii) The last day of the period described in paragraph (h)(2)(i)(A) 
of this section, including any extension, if less than 95 percent of the 
proceeds of the issue are actually spent for a qualified purpose with 
respect to a qualified zone academy.
    (2) Proceeds spent for rehabilitation, repair or equipment. For 
proceeds that have been spent for a purpose described in section 
1397E(d)(5)(A) or (B) with respect to a qualified zone academy, a 
failure to properly use proceeds occurs on the earlier of--
    (i) The first date on which the public school (or academic program 
within the public school) fails to constitute a qualified zone academy; 
and
    (ii) The first date on which an action is taken that causes the 
issuer to fail actually to use at least 95 percent of the proceeds of 
the issue for a qualified purpose with respect to a qualified zone 
academy.
    (3) Proceeds spent for course materials or training. If proceeds 
have been spent for a purpose described in section 1397E(d)(5)(C) or (D) 
with respect to a qualified zone academy, no event subsequent to such 
expenditure shall constitute a failure to properly use such proceeds.
    (iii) Alternative use of disposition proceeds. A remedial action is 
taken under this paragraph (h)(8)(iii) if all of the requirements of 
paragraphs (h)(8)(iii)(A) through (D) of this section are met--
    (A) The failure to properly use proceeds (as determined under 
paragraph (h)(8)(ii)(D) of this section) is a disposition of financed 
property described in section 1397E(d)(5)(A) or (B) and the 
consideration for the disposition is exclusively cash;
    (B) The issuer reasonably expects as of the date of the disposition 
that--
    (1) All of the disposition proceeds will be spent within the two-
year period beginning with the date of the disposition for a qualified 
purpose with respect to a qualified zone academy; or
    (2) To the extent not expected to be so spent, the disposition 
proceeds will be used within 90 days after the date of the disposition 
to redeem or defease bonds in a manner that meets the requirements of 
paragraph (h)(8)(ii) of this section;
    (C) The disposition proceeds are treated as proceeds for purposes of 
section 1397E; and
    (D) If all of the disposition proceeds are not actually used in the 
manner described in paragraph (h)(8)(iii)(B) of this section, the 
remainder of such amounts are used within 90 days after the end of the 
period described in paragraph (h)(8)(iii)(B)(1) of this section for a 
remedial action that meets the requirements of paragraph (h)(8)(ii) of 
this section.
    (iv) Definition of disposition proceeds and allocation among 
multiple funding sources. For purposes of this paragraph (h)(8), 
disposition proceeds means disposition proceeds, as defined in Sec.  
1.141-12(c)(1), plus amounts derived from investing disposition 
proceeds. If property has been financed with an issue of QZABs and one 
or more other funding sources, any disposition proceeds from that 
property are allocated to the issue under the principles of Sec.  1.141-
12(c)(3).
    (9) Payment of principal, interest or redemption price--(i) In 
general. Except as provided in paragraphs (h)(9)(ii) and (h)(9)(iii) of 
this section, the use of proceeds of a bond to pay principal, interest, 
or redemption price of the bond or another bond is not a qualified 
purpose within the meaning of section 1397E(d)(5).
    (ii) Exception for certain eligible reimbursements of interim 
refinancings. The use of proceeds of a bond (the refinancing bond) to 
pay principal, interest, or redemption price of another bond (the prior 
bond) is a qualified purpose within the meaning of section 1397E(d)(5) 
to the extent that--
    (A) The prior bond was not a QZAB (and, in the case of a series of 
refinancings, no earlier bond in the series was a QZAB);

[[Page 984]]

    (B) The proceeds of the prior bond (or the original bond in the case 
of a series of refinancings, as applicable) were spent for a qualified 
purpose under section 1397E(d)(5) with respect to a qualified zone 
academy (the original expenditure); and
    (C) The issuer makes a valid reimbursement allocation to allocate 
the proceeds of the refinancing bond to the payment of the original 
expenditure (the reimbursement allocation), which allocation satisfies 
the requirements for reimbursements under paragraph (h)(10) of this 
section. For purposes of applying the rules for reimbursement, a 
refinancing bond which otherwise meets the requirements of this 
paragraph (h)(9)(ii) is eligible for reimbursement and is not treated as 
a disqualified refunding under Sec.  1.150-2(g).
    (iii) Reissuance of a QZAB. For purposes of determining whether the 
establishing of a defeasance escrow under paragraph (h)(8)(ii)(B)(1)(ii) 
of this section results in an exchange under Sec.  1.1001-1(a), the QZAB 
is treated as a tax-exempt bond under Sec.  1.1001-3(e)(5)(ii)(B)(1).
    (10) Reimbursement. An expenditure for a qualified purpose may be 
reimbursed with proceeds of a QZAB. For this purpose, rules similar to 
those on reimbursement of expenditures in Sec.  1.142-4(b) and Sec.  
1.150-2 shall apply. In applying these reimbursement rules, expenditures 
eligible for reimbursement under Sec.  1.150-2(d)(3) shall be deemed to 
mean any expenditure for a qualified purpose under section 1397E(d)(5).
    (i) Arbitrage investment restrictions--(1) In general. Under section 
1397E(g) and this paragraph (i), and except as otherwise provided in 
this paragraph (i), the arbitrage investment restrictions and rebate 
requirements under section 148 and Sec. Sec.  1.148-1 through 1.148-11, 
inclusive, and the exceptions to those restrictions, apply broadly to 
gross proceeds of QZABs issued under section 1397E to the same extent 
and in the same manner as they apply to gross proceeds of tax-exempt 
state or local governmental bonds. For this purpose, references in those 
sections to tax-exempt bonds generally shall be deemed to refer to QZABs 
and, to the extent that any particular arbitrage restriction depends on 
whether bonds are private activity bonds under section 141, the 
determination of whether QZABs are private activity bonds shall be based 
on the general definition of private activity bonds under section 141. 
In applying section 148 and the regulations under that section to QZABs, 
the modifications set forth in paragraphs (i)(2) through (i)(6) of this 
section shall apply.
    (2) 5-year temporary period exception to arbitrage yield 
restriction. If an issue of QZABs meets the requirements of section 
1397E(f)(1) and paragraph (h)(2)(i) of this section, then the proceeds 
of the issue of QZABs are treated as qualifying for a 5-year temporary 
period exception to arbitrage yield restriction under Sec.  1.148-
2(e)(2) beginning on the issue date of the issue.
    (3) Disregard QZAB credit in QZAB yield for arbitrage purposes. In 
determining the yield on an issue of QZABs for arbitrage purposes under 
Sec.  1.148-4, the QZAB credit allowed under section 1397E(a) is 
disregarded.
    (4) Non-AMT tax-exempt bond investment exception inapplicable. The 
exception to arbitrage yield restriction for investments of gross 
proceeds of tax-exempt bonds in specified tax-exempt bond investments 
not subject to section 148(b)(3)(B) (relating to an exception to the 
definition of ``investment property'' for specified tax-exempt bonds) 
and Sec.  1.148-2(d)(2)(v) (relating to a corresponding exception to 
arbitrage yield limitations) is inapplicable.
    (5) Application of small issuer exception to the arbitrage rebate 
requirement. Except as otherwise provided in paragraph (i)(6) of this 
section, for purposes of the small issuer exception to the arbitrage 
rebate requirement under section 148(f)(4)(D) and Sec.  1.148-8, QZABs 
that are actually issued or reasonably expected to be issued by the QZAB 
issuer (and applicable entities aggregated under section 148(f)(4)(D)) 
within a calendar year are taken into account in measuring the 
applicable size limitation.
    (6) Certain defeasance escrow earnings. With respect to a defeasance 
escrow established in a remedial action for an issue of QZABs that meets 
the special rebate requirement under paragraph (h)(8)(ii)(C)(2) of this 
section, the QZAB

[[Page 985]]

issuer is treated as ineligible for the small issuer exception to 
arbitrage rebate under section 148(f)(4)(D) and paragraph (i)(5) of this 
section and compliance with that special rebate requirement is treated 
as satisfying applicable arbitrage investment restrictions under section 
148 for that defeasance escrow.
    (j) Information reporting requirement. Under section 1397E(h) and 
this paragraph (j), issuers of QZABs are required to submit information 
reporting returns to the IRS similar to the information reporting 
returns required to be submitted to the IRS under section 149(e) for 
tax-exempt state or local governmental bonds at the same time and in the 
same manner as those reports are required to be submitted to the IRS on 
such forms as shall be prescribed by the Commissioner for such purpose.
    (k) State or local government--(1) In general. For purposes of 
section 1397E(d)(1)(B), the term State or local government means a State 
or political subdivision as defined for purposes of section 103(c).
    (2) On behalf of issuer. A qualified zone academy bond may be issued 
on behalf of a State or local government under rules similar to those 
for determining whether a bond issued on behalf of a State or political 
subdivision constitutes an obligation of that State or political 
subdivision for purposes of section 103.
    (l) Cross-references. See section 171 and the regulations thereunder 
for rules relating to amortizable bond premium. See Sec.  1.61-7(d) for 
the seller's treatment of a bond sold between interest payment dates 
(credit allowance dates) and Sec.  1.61-7(c) for the buyer's treatment 
of a bond purchased between interest payment dates (credit allowance 
dates).
    (m) Effective/applicability dates--(1) In general. Except as 
otherwise provided in this paragraph (m), this section applies to bonds 
issued under section 1397E that are sold on or after September 14, 2007.
    (2) Special effective dates--(i) Effective dates for paragraphs 
(h)(2), (h)(3), (h)(4), (i), and (j) of this section in general. 
Paragraphs (h)(2), (h)(3), (h)(4), (i), and (j) of this section apply to 
bonds issued under section 1397E pursuant to allocations of the national 
qualified zone academy bond volume cap authority for calendar years 
after 2005 and sold on or after September 14, 2007.
    (ii) Permissive retroactive application--(A) In general. Except as 
otherwise provided in this paragraph (m), issuers and taxpayers may 
apply this section in whole, but not in part, to bonds issued under 
section 1397E that are sold before September 14, 2007.
    (B) Special rule for certain provisions. For purposes of the 
permissive retroactive application rule in paragraph (m)(2)(ii)(A) of 
this section, paragraphs (h)(2), (h)(3), (h)(4), (i), and (j) of this 
section need not be applied to any bonds issued under section 1397E to 
which those provisions do not otherwise apply under the general 
effective date provisions for those provisions in paragraph (m)(2)(i) of 
this section.
    (C) Definition of proceeds. Issuers and taxpayers may apply 
paragraph (h) of this section, without regard to the definition of 
proceeds in paragraph (a)(2)(ii) of this section, to bonds issued under 
section 1397E that are sold before September 14, 2007.
    (D) Bonds issued before July 1, 1999. Paragraphs (b) and (h)(10) of 
this section may not be applied to bonds issued under section 1397E that 
are issued before July 1, 1999.
    (3) Scope of reliance for bonds issued under sections 54A and 54E. 
Except to the extent inconsistent with the successor statutory 
provisions for QZABs in sections 54A and 54E or applicable public 
administrative or regulatory guidance under those provisions and except 
as otherwise provided in this paragraph (m)(3), issuers and taxpayers 
may apply these regulations to QZABs issued under sections 54A and 54E 
that are sold after October 3, 2008. In the case of QZABs that are 
issued under sections 54A and 54E for which the issuer makes an 
irrevocable election under section 6431(f) to receive payments with 
respect to credits under section 6431, issuers and taxpayers may

[[Page 986]]

not apply the remedial action provisions under paragraph (h)(8) of this 
section.

[T.D. 8755, 63 FR 673, Jan. 7, 1998; 63 FR 8528, Feb. 19, 1998, as 
amended by T.D. 8826, 64 FR 35574, July 1, 1999. Redesignated and 
amended by T.D. 8903, 65 FR 57733, Sept. 26, 2000; T.D. 9339, 72 FR 
38774, July 16, 2007;T.D. 9495, 75 FR 44904, July 30, 2010; T.D. 9495, 
75 FR 52267, Aug. 25, 2010]

              Rules Relating to Individuals' Title 11 Cases

    Source: Sections 1.1398-1 and 1.1398-2 appear at T.D. 8537, 59 FR 
24937, May 13, 1994, unless otherwise noted.



Sec.  1.1398-1  Treatment of passive activity losses and passive 
activity credits in individuals' title 11 cases.

    (a) Scope. This section applies to cases under chapter 7 or chapter 
11 of title 11 of the United States Code, but only if the debtor is an 
individual.
    (b) Definitions and rules of general application. For purposes of 
this section--
    (1) Passive activity and former passive activity have the meanings 
given in section 469 (c) and (f)(3);
    (2) The unused passive activity loss (determined as of the first day 
of a taxable year) is the passive activity loss (as defined in section 
469(d)(1)) that is disallowed under section 469 for the previous taxable 
year; and
    (3) The unused passive activity credit (determined as of the first 
day of a taxable year) is the passive activity credit (as defined in 
section 469(d)(2)) that is disallowed under section 469 for the previous 
taxable year.
    (c) Estate succeeds to losses and credits upon commencement of case. 
The bankruptcy estate (estate) succeeds to and takes into account, 
beginning with its first taxable year, the debtor's unused passive 
activity loss and unused passive activity credit (determined as of the 
first day of the debtor's taxable year in which the case commences).
    (d) Transfers from estate to debtor--(1) Transfer not treated as 
taxable event. If, before the termination of the estate, the estate 
transfers an interest in a passive activity or former passive activity 
to the debtor (other than by sale or exchange), the transfer is not 
treated as a disposition for purposes of any provision of the Internal 
Revenue Code assigning tax consequences to a disposition. The transfers 
to which this rule applies include transfers from the estate to the 
debtor of property that is exempt under section 522 of title 11 of the 
United States Code and abandonments of estate property to the debtor 
under section 554(a) of such title.
    (2) Treatment of passive activity loss and credit. If, before the 
termination of the estate, the estate transfers an interest in a passive 
activity or former passive activity to the debtor (other than by sale or 
exchange)--
    (i) The estate must allocate to the transferred interest, in 
accordance with Sec.  1.469-1(f)(4), part or all of the estate's unused 
passive activity loss and unused passive activity credit (determined as 
of the first day of the estate's taxable year in which the transfer 
occurs); and
    (ii) The debtor succeeds to and takes into account, beginning with 
the debtor's taxable year in which the transfer occurs, the unused 
passive activity loss and unused passive activity credit (or part 
thereof) allocated to the transferred interest.
    (e) Debtor succeeds to loss and credit of the estate upon its 
termination. Upon termination of the estate, the debtor succeeds to and 
takes into account, beginning with the debtor's taxable year in which 
the termination occurs, the passive activity loss and passive activity 
credit disallowed under section 469 for the estate's last taxable year.
    (f) Effective date--(1) Cases commencing on or after November 9, 
1992. This section applies to cases commencing on or after November 9, 
1992.
    (2) Cases commencing before November 9, 1992--(i) Election required. 
This section applies to a case commencing before November 9, 1992, and 
terminating on or after that date if the debtor and the estate jointly 
elect its application in the manner prescribed in paragraph (f)(2)(v) of 
this section (the election). The caption ``ELECTION PURSUANT TO Sec.  
1.1398-1'' must be placed prominently on the first page of each of the 
debtor's returns that is affected by the election (other than returns 
for taxable years that begin after the termination of the estate) and on 
the first page of

[[Page 987]]

each of the estate's returns that is affected by the election. In the 
case of returns that are amended under paragraph (f)(2)(iii) of this 
section, this requirement is satisfied by placing the caption on the 
amended return.
    (ii) Scope of election. This election applies to the passive and 
former passive activities and unused passive activity losses and passive 
activity credits of the taxpayers making the election.
    (iii) Amendment of previously filed returns. The debtor and the 
estate making the election must amend all returns (except to the extent 
they are for a year that is a closed year within the meaning of 
paragraph (f)(2)(iv)(D) of this section) they filed before the date of 
the election to the extent necessary to provide that no claim of a 
deduction or credit is inconsistent with the succession under this 
section to unused losses and credits. The Commissioner may revoke or 
limit the effect of the election if either the debtor or the estate 
fails to satisfy the requirement of this paragraph (f)(2)(iii).
    (iv) Rules relating to closed years--(A) Estate succeeds to debtor's 
passive activity loss and credit as of the commencement date. If, by 
reason of an election under this paragraph (f), this section applies to 
a case that was commenced in a closed year, the estate, nevertheless, 
succeeds to and takes into account the unused passive activity loss and 
unused passive activity credit of the debtor (determined as of the first 
day of the debtor's taxable year in which the case commenced).
    (B) No reduction of unused passive activity loss and credit for 
passive activity loss and credit not claimed for a closed year. In 
determining a taxpayer's carryover of a passive activity loss or credit 
to its taxable year following a closed year, a deduction or credit that 
the taxpayer failed to claim in the closed year, if attributable to an 
unused passive activity loss or credit to which the taxpayer succeeded 
under this section, is treated as a deduction or credit that was 
disallowed under section 469.
    (C) Passive activity loss and credit to which taxpayer succeeds 
reflects deductions of prior holder in a closed year. A loss or credit 
to which a taxpayer would otherwise succeed under this section is 
reduced to the extent the loss or credit was allowed to its prior holder 
for a closed year.
    (D) Closed year. For purposes of this paragraph (f)(2)(iv), a 
taxable year is closed to the extent the assessment of a deficiency or 
refund of an overpayment is prevented, on the date of the election and 
at all times thereafter, by any law or rule of law.
    (v) Manner of making election--(A) Chapter 7 cases. In a case under 
chapter 7 of title 11 of the United States Code, the election is made by 
obtaining the written consent of the bankruptcy trustee and filing a 
copy of the written consent with the returns (or amended returns) of the 
debtor and the estate for their first taxable years ending after 
November 9, 1992.
    (B) Chapter 11 cases. In a case under chapter 11 of title 11 of the 
United States Code, the election is made by incorporating the election 
into a bankruptcy plan that is confirmed by the bankruptcy court or into 
an order of such court and filing the pertinent portion of the plan or 
order with the returns (or amended returns) of the debtor and the estate 
for their first taxable years ending after November 9, 1992.
    (vi) Election is binding and irrevocable. Except as provided in 
paragraph (f)(2)(iii) of this section, the election, once made, is 
binding on both the debtor and the estate and is irrevocable.



Sec.  1.1398-2  Treatment of section 465 losses in individuals' title 11 cases.

    (a) Scope. This section applies to cases under chapter 7 or chapter 
11 of title 11 of the United States Code, but only if the debtor is an 
individual.
    (b) Definition and rules of general application. For purposes of 
this section--
    (1) Section 465 activity means an activity to which section 465 
applies; and
    (2) For each section 465 activity, the unused section 465 loss from 
the activity (determined as of the first day of a taxable year) is the 
loss (as defined in section 465(d)) that is not allowed under section 
465(a)(1) for the previous taxable year.
    (c) Estate succeeds to losses upon commencement of case. The 
bankruptcy estate (the estate) succeeds to and takes into account, 
beginning with its first

[[Page 988]]

taxable year, the debtor's unused section 465 losses (determined as of 
the first day of the debtor's taxable year in which the case commences).
    (d) Transfers from estate to debtor--(1) Transfer not treated as 
taxable event. If, before the termination of the estate, the estate 
transfers an interest in a section 465 activity to the debtor (other 
than by sale or exchange), the transfer is not treated as a disposition 
for purposes of any provision of the Internal Revenue Code assigning tax 
consequences to a disposition. The transfers to which this rule applies 
include transfers from the estate to the debtor of property that is 
exempt under section 522 of title 11 of the United States Code and 
abandonments of estate property to the debtor under section 554(a) of 
such title.
    (2) Treatment of section 465 losses. If, before the termination of 
the estate, the estate transfers an interest in a section 465 activity 
to the debtor (other than by sale or exchange) the debtor succeeds to 
and takes into account, beginning with the debtor's taxable year in 
which the transfer occurs, the transferred interest's share of the 
estate's unused section 465 loss from the activity (determined as of the 
first day of the estate's taxable year in which the transfer occurs). 
For this purpose, the transferred interest's share of such loss is the 
amount, if any, by which such loss would be reduced if the transfer had 
occurred as of the close of the preceding taxable year of the estate and 
been treated as a disposition on which gain or loss is recognized.
    (e) Debtor succeeds to losses of the estate upon its termination. 
Upon termination of the estate, the debtor succeeds to and takes into 
account, beginning with the debtor's taxable year in which the 
termination occurs, the losses not allowed under section 465 for the 
estate's last taxable year.
    (f) Effective date--(1) Cases commencing on or after November 9, 
1992. This section applies to cases commencing on or after November 9, 
1992.
    (2) Cases commencing before November 9, 1992--(i) Election required. 
This section applies to a case commencing before November 9, 1992, and 
terminating on or after that date if the debtor and the estate jointly 
elect its application in the manner prescribed in paragraph (f)(2)(v) of 
this section (the election). The caption ``ELECTION PURSUANT TO Sec.  
1.1398-2'' must be placed prominently on the first page of each of the 
debtor's returns that is affected by the election (other than returns 
for taxable years that begin after the termination of the estate) and on 
the first page of each of the estate's returns that is affected by the 
election. In the case of returns that are amended under paragraph 
(f)(2)(iii) of this section, this requirement is satisfied by placing 
the caption on the amended return.
    (ii) Scope of election. This election applies to the section 465 
activities and unused losses from section 465 activities of the 
taxpayers making the election.
    (iii) Amendment of previously filed returns. The debtor and the 
estate making the election must amend all returns (except to the extent 
they are for a year that is a closed year within the meaning of 
paragraph (f)(2)(iv)(D) of this section) they filed before the date of 
the election to the extent necessary to provide that no claim of a 
deduction is inconsistent with the succession under this section to 
unused losses from section 465 activities. The Commissioner may revoke 
or limit the effect of the election if either the debtor or the estate 
fails to satisfy the requirement of this paragraph (f)(2)(iii).
    (iv) Rules relating to closed years--(A) Estate succeeds to debtor's 
section 465 loss as of the commencement date. If, by reason of an 
election under this paragraph (f), this section applies to a case that 
was commenced in a closed year, the estate, nevertheless, succeeds to 
and takes into account the section 465 losses of the debtor (determined 
as of the first day of the debtor's taxable year in which the case 
commenced).
    (B) No reduction of unused section 465 loss for loss not claimed for 
a closed year. In determining a taxpayer's carryover of an unused 
section 465 loss to its taxable year following a closed year, a 
deduction that the taxpayer failed to claim in the closed year, if 
attributable to an unused section 465 loss to which the taxpayer 
succeeds under this section, is treated as a deduction that was not 
allowed under section 465.

[[Page 989]]

    (C) Loss to which taxpayer succeeds reflects deductions of prior 
holder in a closed year. A loss to which a taxpayer would otherwise 
succeed under this section is reduced to the extent the loss was allowed 
to its prior holder for a closed year.
    (D) Closed year. For purposes of this paragraph (f)(2)(iv), a 
taxable year is closed to the extent the assessment of a deficiency or 
refund of an overpayment is prevented, on the date of the election and 
at all times thereafter, by any law or rule of law.
    (v) Manner of making election--(A) Chapter 7 cases. In a case under 
chapter 7 of title 11 of the United States Code, the election is made by 
obtaining the written consent of the bankruptcy trustee and filing a 
copy of the written consent with the returns (or amended returns) of the 
debtor and the estate for their first taxable years ending after 
November 9, 1992.
    (B) Chapter 11 cases. In a case under chapter 11 of title 11 of the 
United States Code, the election is made by incorporating the election 
into a bankruptcy plan that is confirmed by the bankruptcy court or into 
an order of such court and filing the pertinent portion of the plan or 
order with the returns (or amended returns) of the debtor and the estate 
for their first taxable years ending after November 9, 1992.
    (vi) Election is binding and irrevocable. Except as provided in 
paragraph (f)(2)(iii) of this section, the election, once made, is 
binding on both the debtor and the estate and is irrevocable.



Sec.  1.1398-3  Treatment of section 121 exclusion in individuals' 
title 11 cases.

    (a) Scope. This section applies to cases under chapter 7 or chapter 
11 of title 11 of the United States Code, but only if the debtor is an 
individual.
    (b) Definition and rules of general application. For purposes of 
this section, section 121 exclusion means the exclusion of gain from the 
sale or exchange of a debtor's principal residence available under 
section 121.
    (c) Estate succeeds to exclusion upon commencement of case. The 
bankruptcy estate succeeds to and takes into account the section 121 
exclusion with respect to the property transferred into the estate.
    (d) Effective date. This section is applicable for sales or 
exchanges on or after December 24, 2002.

[67 FR 78367, Dec. 24, 2002]



Sec.  1.1400L(b)-1  Additional first year depreciation deduction 
for qualified New York Liberty Zone property.

    (a) Scope. This section provides the rules for determining the 30-
percent additional first year depreciation deduction allowable under 
section 1400L(b) for qualified New York Liberty Zone property.
    (b) Definitions. For purposes of section 1400L(b) and this section, 
the definitions of the terms in Sec.  1.168(k)-1(a)(2) apply and the 
following definitions also apply:
    (1) Building and structural components have the same meanings as 
those terms are defined in Sec.  1.48-1(e).
    (2) New York Liberty Zone is the area located on or south of Canal 
Street, East Broadway (east of its intersection with Canal Street), or 
Grand Street (east of its intersection with East Broadway) in the 
Borough of Manhattan in the City of New York, New York.
    (3) Nonresidential real property and residential rental property 
have the same meanings as those terms are defined in section 168(e)(2).
    (4) Real property is a building or its structural components, or 
other tangible real property.
    (c) Qualified New York Liberty Zone property--(1) In general. 
Qualified New York Liberty Zone property is depreciable property that 
meets all the following requirements in the first taxable year in which 
the property is subject to depreciation by the taxpayer whether or not 
depreciation deductions for the property are allowable--
    (i) The requirements in Sec.  1.1400L(b)-1(c)(2) (description of 
property);
    (ii) The requirements in Sec.  1.1400L(b)-1(c)(3) (substantial use);
    (iii) The requirements in Sec.  1.1400L(b)-1(c)(4) (original use);
    (iv) The requirements in Sec.  1.1400L(b)-1(c)(5) (acquisition of 
property by purchase); and
    (v) The requirements in Sec.  1.1400L(b)-1(c)(6) (placed-in-service 
date).

[[Page 990]]

    (2) Description of qualified New York Liberty Zone property--(i) In 
general. Depreciable property will meet the requirements of this 
paragraph (c)(2) if the property is--
    (A) Described in Sec.  1.168(k)-1(b)(2)(i); or
    (B) Nonresidential real property or residential rental property 
depreciated under section 168, but only to the extent it rehabilitates 
real property damaged, or replaces real property destroyed or condemned, 
as a result of the terrorist attacks of September 11, 2001. Property is 
treated as replacing destroyed or condemned property if, as part of an 
integrated plan, the property replaces real property that is included in 
a continuous area that includes real property destroyed or condemned. 
For purposes of this section, real property is considered as destroyed 
or condemned only if an entire building or structure was destroyed or 
condemned as a result of the terrorist attacks of September 11, 2001. 
Otherwise, the real property is considered damaged real property. For 
example, if certain structural components (for example, walls, floors, 
and plumbing fixtures) of a building are damaged or destroyed as a 
result of the terrorist attacks of September 11, 2001, but the building 
is not destroyed or condemned, then only costs related to replacing the 
damaged or destroyed structural components qualify under this paragraph 
(c)(2)(i)(B).
    (ii) Property not eligible for additional first year depreciation 
deduction. Depreciable property will not meet the requirements of this 
paragraph (c)(2) if--
    (A) Section 168(k) or Sec.  1.168(k)-1 applies to the property;
    (B) The property is described in section 168(f);
    (C) The property is required to be depreciated under the alternative 
depreciation system of section 168(g) pursuant to section 168(g)(1)(A) 
through (D) or other provisions of the Internal Revenue Code (for 
example, property described in section 263A(e)(2)(A) if the taxpayer (or 
any related person) has made an election under section 263A(d)(3), or 
property described in section 280F(b)(1));
    (D) The property is included in any class of property for which the 
taxpayer elects not to deduct the additional first year depreciation 
under paragraph (e) of this section; or
    (E) The property is qualified New York Liberty Zone leasehold 
improvement property as described in section 1400L(c)(2).
    (3) Substantial use. Depreciable property will meet the requirements 
of this paragraph (c)(3) if substantially all of the use of the property 
is in the New York Liberty Zone and is in the active conduct of a trade 
or business by the taxpayer in New York Liberty Zone. For purposes of 
this paragraph (c)(3), ``substantially all'' means 80 percent or more.
    (4) Original use. Depreciable property will meet the requirements of 
this paragraph (c)(4) if the original use of the property commences with 
the taxpayer in the New York Liberty Zone after September 10, 2001. The 
original use rules in Sec.  1.168(k)-1(b)(3) apply for purposes of this 
paragraph (c)(4). In addition, used property will satisfy the original 
use requirement in this paragraph (c)(4) so long as the property has not 
been previously used within the New York Liberty Zone.
    (5) Acquisition of property by purchase--(i) In general. Depreciable 
property will meet the requirements of this paragraph (c)(5) if the 
property is acquired by the taxpayer by purchase (as defined in section 
179(d) and Sec.  1.179-4(c)) after September 10, 2001, but only if no 
written binding contract for the acquisition of the property was in 
effect before September 11, 2001. For purposes of this paragraph (c)(5), 
the rules in Sec.  1.168(k)-1(b)(4)(ii) (binding contract), the rules in 
Sec.  1.168(k)-1(b)(4)(iii) (self-constructed property), and the rules 
in Sec.  1.168(k)-1(b)(4)(iv) (disqualified transactions) apply. For 
purposes of the preceding sentence, the rules in Sec.  1.168(k)-
1(b)(4)(iii) shall be applied without regard to `and before January 1, 
2005.'
    (ii) Exception for certain transactions. For purposes of this 
section, the new partnership of a transaction described in Sec.  
1.168(k)-1(f)(1)(ii) (technical termination of a partnership) or the 
transferee of a transaction described in Sec.  1.168(k)-1(f)(1)(iii) 
(section 168(i)(7) transactions) is deemed to acquire the depreciable 
property by purchase.
    (6) Placed-in-service date. Depreciable property will meet the 
requirements of

[[Page 991]]

this paragraph (c)(6) if the property is placed in service by the 
taxpayer on or before December 31, 2006. However, nonresidential real 
property and residential rental property described in paragraph 
(c)(2)(i)(B) of this section must be placed in service by the taxpayer 
on or before December 31, 2009. The rules in Sec.  1.168(k)-1(b)(5)(ii) 
(relating to sale-leaseback and syndication transactions), the rules in 
Sec.  1.168(k)-1(b)(5)(iii) (relating to a technical termination of a 
partnership under section 708(b)(1)(B)), and the rules in Sec.  
1.168(k)-1(b)(5)(iv) (relating to section 168(i)(7) transactions) apply 
for purposes of this paragraph (c)(6).
    (d) Computation of depreciation deduction for qualified New York 
Liberty Zone property. The computation of the allowable additional first 
year depreciation deduction and the otherwise allowable depreciation 
deduction for qualified New York Liberty Zone property is made in 
accordance with the rules for qualified property in Sec.  1.168(k)-
1(d)(1)(i) and (2).
    (e) Election not to deduct additional first year depreciation--(1) 
In general. A taxpayer may make an election not to deduct the 30-percent 
additional first year depreciation for any class of property that is 
qualified New York Liberty Zone property placed in service during the 
taxable year. If a taxpayer makes an election under this paragraph (e), 
the election applies to all qualified New York Liberty Zone property 
that is in the same class of property and placed in service in the same 
taxable year, and no additional first year depreciation deduction is 
allowable for the class of property.
    (2) Definition of class of property. For purposes of this paragraph 
(e), the term class of property means--
    (i) Except for the property described in paragraphs (e)(2)(ii), 
(iv), and (v) of this section, each class of property described in 
section 168(e) (for example, 5-year property);
    (ii) Water utility property as defined in section 168(e)(5) and 
depreciated under section 168;
    (iii) Computer software as defined in, and depreciated under, 
section 167(f)(1) and the regulations thereunder;
    (iv) Nonresidential real property as defined in paragraph (b)(3) of 
this section and as described in paragraph (c)(2)(B) of this section; or
    (v) Residential rental property as defined in paragraph (b)(3) of 
this section and as described in paragraph (c)(2)(B) of this section
    (3) Time and manner for making election--(i) Time for making 
election. Except as provided in paragraph (e)(4) of this section, the 
election specified in paragraph (e)(1) of this section must be made by 
the due date (including extensions) of the Federal tax return for the 
taxable year in which the qualified New York Liberty Zone property is 
placed in service by the taxpayer
    (ii) Manner of making election. Except as provided in paragraph 
(e)(4) of this section, the election specified in paragraph (e)(1) of 
this section must be made in the manner prescribed on Form 4562, 
``Depreciation and Amortization,'' and its instructions. The election is 
made separately by each person owning qualified New York Liberty Zone 
property (for example, for each member of a consolidated group by the 
common parent of the group, by the partnership, or by the S 
corporation). If Form 4562 is revised or renumbered, any reference in 
this section to that form shall be treated as a reference to the revised 
or renumbered form.
    (4) Special rules for 2000 or 2001 returns. For the election 
specified in paragraph (e)(1) of this section for qualified New York 
Liberty Zone property placed in service by the taxpayer during the 
taxable year that included September 11, 2001, the taxpayer should refer 
to the guidance provided by the Internal Revenue Service for the time 
and manner of making this election on the 2000 or 2001 Federal tax 
return for the taxable year that included September 11, 2001 (for 
further guidance, see sections 3.03(3) and 4 of Rev. Proc. 2002-33 
(2002-1 C.B. 963), Rev. Proc. 2003-50 (2003-29 I.R.B. 119), and Sec.  
601.601(d)(2)(ii)(b) of this chapter).
    (5) Failure to make election. If a taxpayer does not make the 
election specified in paragraph (e)(1) of this section within the time 
and in the manner prescribed in paragraph (e)(3) or (e)(4) of this 
section, the amount of depreciation allowable for that property under 
section 167(f)(1) or under section 168, as applicable, must be 
determined for the

[[Page 992]]

placed-in-service year and for all subsequent taxable years by taking 
into account the additional first year depreciation deduction. Thus, the 
election specified in paragraph (e)(1) of this section shall not be made 
by the taxpayer in any other manner (for example, the election cannot be 
made through a request under section 446(e) to change the taxpayer's 
method of accounting).
    (6) Alternative minimum tax. If a taxpayer makes an election under 
this paragraph (e) for a class of property, the depreciation adjustments 
under section 56 and the regulations under section 56 apply to the 
property to which the election applies for purposes of computing the 
taxpayer's alternative minimum taxable income.
    (7) Revocation of election--(i) In general. Except as provided in 
paragraph (e)(7)(ii) of this section, an election under this paragraph 
(e), once made, may be revoked only with the written consent of the 
Commissioner of Internal Revenue. To seek the Commissioner's consent, 
the taxpayer must submit a request for a letter ruling.
    (ii) Automatic 6-month extension. If a taxpayer made an election 
under this paragraph (e) for a class of property, an automatic extension 
of 6 months from the due date of the taxpayer's Federal tax return 
(excluding extensions) for the placed-in-service year of the class of 
property is granted to revoke that election, provided the taxpayer 
timely filed the taxpayer's Federal tax return for the placed-in-service 
year of the class of property and, within this 6-month extension period, 
the taxpayer (and all taxpayers whose tax liability would be affected by 
the election) files an amended Federal tax return for the placed-in-
service year of the class of property in a manner that is consistent 
with the revocation of the election.
    (f) Special rules--(1) Property placed in service and disposed of in 
the same taxable year. Rules similar to those provided in Sec.  
1.168(k)-1(f)(1) apply for purposes of this paragraph (f)(1).
    (2) Redetermination of basis. If the unadjusted depreciable basis 
(as defined in Sec.  1.168(k)-1(a)(2)(iii)) of qualified New York 
Liberty Zone property is redetermined (for example, due to contingent 
purchase price or discharge of indebtedness) on or before December 31, 
2006 (or on or before December 31, 2009, for nonresidential real 
property and residential rental property described in paragraph 
(c)(2)(i)(B) of this section), the additional first year depreciation 
deduction allowable for the qualified New York Liberty Zone property is 
redetermined in accordance with the rules provided in Sec.  1.168(k)-
1(f)(2).
    (3) Section 1245 and 1250 depreciation recapture. The rules provided 
in Sec.  1.168(k)-1(f)(3) apply for purposes of this paragraph (f)(3).
    (4) Coordination with section 169. Rules similar to those provided 
in Sec.  1.168(k)-1(f)(4) apply for purposes of this paragraph (f)(4).
    (5) Like-kind exchanges and involuntary conversions. This paragraph 
(f)(5) applies to acquired MACRS property (as defined in Sec.  1.168(k)-
1(f)(5)(ii)(A)) or acquired computer software (as defined in Sec.  
1.168(k)-1(f)(5)(ii)(C)) that is eligible for the additional first year 
depreciation deduction under section 1400L(b) at the time of replacement 
provided the time of replacement is after September 10, 2001, and on or 
before December 31, 2006, or in the case of acquired MACRS property or 
acquired computer software that is qualified New York Liberty Zone 
property described in paragraph (c)(2)(i)(B) of this section, the time 
of replacement is after September 10, 2001, and on or before December 
31, 2009. The rules and definitions similar to those provided in Sec.  
1.168(k)-1(f)(5) apply for purposes of this paragraph (f)(5).
    (6) Change in use. Rules similar to those provided in Sec.  
1.168(k)-1(f)(6) apply for purposes of this paragraph (f)(6).
    (7) Earnings and profits. The rule provided in Sec.  1.168(k)-
1(f)(7) applies for purposes of this paragraph (f)(7).
    (8) Section 754 election. Rules similar to those provided in Sec.  
1.168(k)-1(f)(9) apply for purposes of this paragraph (f)(8).
    (9) Coordination with section 47. Rules similar to those provided in 
Sec.  1.168(k)-1(f)(10) apply for purposes of this paragraph (f)(9).
    (10) Coordination with section 514(a)(3). Rules similar to those 
provided in Sec.  1.168(k)-1(f)(11) apply for purposes of this paragraph 
(f)(10).
    (g) Effective date--(1) In general. Except as provided in paragraphs 
(g)(2),

[[Page 993]]

(3), and (5) of this section, this section applies to qualified New York 
Liberty Zone property acquired by a taxpayer after September 10, 2001.
    (2) Technical termination of a partnership or section 168(i)(7) 
transactions. If qualified New York Liberty Zone property is transferred 
in a technical termination of a partnership under section 708(b)(1)(B) 
or in a transaction described in section 168(i)(7) for a taxable year 
ending on or before September 8, 2003, and the additional first year 
depreciation deduction allowable for the property was not determined in 
accordance with paragraph (f)(1) of this section, the Internal Revenue 
Service will allow any reasonable method of determining the additional 
first year depreciation deduction allowable for the property in the year 
of the transaction that is consistently applied to the property by all 
parties to the transaction.
    (3) Like-kind exchanges and involuntary conversions. If a taxpayer 
did not claim on a federal tax return for a taxable year ending on or 
before September 8, 2003, the additional first year depreciation 
deduction for the remaining carryover basis of qualified New York 
Liberty Zone property acquired in a transaction described in section 
1031(a), (b), or (c), or in a transaction to which section 1033 applies 
and the taxpayer did not make an election not to deduct the additional 
first year depreciation deduction for the class of property applicable 
to the remaining carryover basis, the Internal Revenue Service will 
treat the taxpayer's method of not claiming the additional first year 
depreciation deduction for the remaining carryover basis as a 
permissible method of accounting and will treat the amount of the 
additional first year depreciation deduction allowable for the remaining 
carryover basis as being equal to zero, provided the taxpayer does not 
claim the additional first year depreciation deduction for the remaining 
carryover basis in accordance with paragraph (g)(4)(ii) of this section.
    (4) Change in method of accounting--(i) Special rules for 2000 or 
2001 returns. If a taxpayer did not claim on the federal tax return for 
the taxable year that included September 11, 2001, any additional first 
year depreciation deduction for a class of property that is qualified 
New York Liberty Zone property and did not make an election not to 
deduct the additional first year depreciation deduction for that class 
of property, the taxpayer should refer to the guidance provided by the 
Internal Revenue Service for the time and manner of claiming the 
additional first year depreciation deduction for the class of property 
(for further guidance, see section 4 of Rev. Proc. 2002-33 (2002-1 C.B. 
963), Rev. Proc. 2003-50 (2003-29 I.R.B. 119), and Sec.  
601.601(d)(2)(ii)(b) of this chapter).
    (ii) Like-kind exchanges and involuntary conversions. If a taxpayer 
did not claim on a federal tax return for any taxable year ending on or 
before September 8, 2003, the additional first year depreciation 
deduction allowable for the remaining carryover basis of qualified New 
York Liberty Zone property acquired in a transaction described in 
section 1031(a), (b), or (c), or in a transaction to which section 1033 
applies and the taxpayer did not make an election not to deduct the 
additional first year depreciation deduction for the class of property 
applicable to the remaining carryover basis, the taxpayer may claim the 
additional first year depreciation deduction allowable for the remaining 
carryover basis in accordance with paragraph (f)(5) of this section 
either--
    (A) By filing an amended return (or a qualified amended return, if 
applicable (for further guidance, see Rev. Proc. 94-69 (1994-2 C.B. 804) 
and Sec.  601.601(d)(2)(ii)(b) of this chapter)) on or before December 
31, 2003, for the year of replacement and any affected subsequent 
taxable year; or,
    (B) By following the applicable administrative procedures issued 
under Sec.  1.446-1(e)(3)(ii) for obtaining the Commissioner's automatic 
consent to a change in method of accounting (for further guidance, see 
Rev. Proc. 2002-9 (2002-1 C.B. 327) and Sec.  601.601(d)(2)(ii)(b) of 
this chapter).
    (iii) Revisions made in paragraphs (b)(4) and (c)(2)(ii) of this 
section. If a taxpayer did not claim on a Federal tax return for a 
taxable year ending on or after September 11, 2001, and on or before 
September 1, 2006, any additional first year depreciation deduction

[[Page 994]]

for qualified New York Liberty Zone property because of the application 
of Sec.  1.1400L(b)-1T(b)(4) or because the taxpayer made an election 
under Sec.  1.168(k)-1T(e)(1) for a class of property that included such 
qualified New York Liberty Zone property, the taxpayer may claim the 
additional first year depreciation deduction for such qualified New York 
Liberty Zone property under this section in accordance with the 
applicable administrative procedures issued under Sec.  1.446-
1(e)(3)(ii) for obtaining the Commissioner's consent to a change in 
method of accounting. Section 481(a) applies to a request to claim the 
additional first year depreciation deduction for such qualified New York 
Liberty Zone property under this paragraph (g)(4)(iii).
    (5) Revision to paragraphs (b)(4) and (b)(6). The addition of ``(or, 
in the case of multiple units of property subject to the same lease, 
within three months after the date the final unit is placed in service, 
so long as the period between the time the first unit is placed in 
service and the time the last unit is placed in service does not exceed 
12 months)'' to Sec.  1.168(k)-1(b)(3)(iii)(B) and Sec.  1.168(k)-
1(b)(5)(ii)(B) applies to property sold after June 4, 2004, for purposes 
of paragraphs (b)(4) and (b)(6) of this section.
    (6) Rehabilitation credit. If a taxpayer did not claim on a Federal 
tax return for a taxable year ending on or before September 1, 2006, the 
rehabilitation credit provided by section 47(a) with respect to the 
portion of the basis of a qualified rehabilitated building that is 
attributable to qualified rehabilitation expenditures and the qualified 
rehabilitation expenditures are qualified New York Liberty Zone 
property, and the taxpayer did not make the election specified in 
paragraph (e)(1) of this section for the class of property that includes 
the qualified rehabilitation expenditures, the taxpayer may claim the 
rehabilitation credit for the remaining rehabilitated basis (as defined 
in Sec.  1.168(k)-1(f)(10)(i)(B)) of the qualified rehabilitated 
building that is attributable to the qualified rehabilitation 
expenditures (assuming all the requirements of section 47 are met) in 
accordance with paragraph (f)(9) of this section by filing an amended 
Federal tax return for the taxable year for which the rehabilitation 
credit is to be claimed. The amended Federal tax return must include the 
adjustment to the tax liability for the rehabilitation credit and any 
collateral adjustments to taxable income or to the tax liability (for 
example, the amount of depreciation allowed or allowable in that taxable 
year for the qualified rehabilitated building). Such adjustments must 
also be made on amended Federal tax returns for any affected succeeding 
taxable years.

[T.D. 9091, 68 FR 53004, Sept. 8, 2003; T.D. 9091, 68 FR 63734, Nov. 10, 
2003. Redesignated and amended by T.D. 9283, 71 FR 51746, Aug. 31, 2006]



Sec.  1.1400Z2-0  Table of Contents.

    This section lists the table of contents for Sec. Sec.  1.1400Z2(a)-
1 through 1.1400Z2(f)-1.

   Sec.  1.1400Z2(a)-1 Deferring tax on capital gains by investing in 
                            opportunity zones

    (a) Deferring tax on capital gains.
    (1) Overview.
    (2) Procedure for deferring gain.
    (b) Definitions.
    (1) 30-month substantial improvement period.
    (2) 70-percent tangible property standard.
    (3) 70-percent use test.
    (4) 90-percent investment standard.
    (5) 90-percent qualified opportunity zone property holding period.
    (6) 90-percent qualified opportunity zone business property holding 
period.
    (7) 180-day period.
    (8) Boot.
    (9) Consolidated group.
    (10) Deferral election.
    (11) Eligible gain.
    (12) Eligible interest.
    (13) Eligible taxpayer.
    (14) Inclusion event.
    (15) Mixed-funds investment.
    (16) Non-qualifying investment.
    (17) Property.
    (18) QOF.
    (19) QOF C corporation.
    (20) QOF corporation.
    (21) QOF RIC.
    (22) QOF REIT.
    (23) QOF owner.
    (24) QOF partner.
    (25) QOF partnership.
    (26) QOF S corporation.
    (27) QOF shareholder.
    (28) QOZ designation notice.
    (29) Qualified opportunity zone business.
    (30) Qualified opportunity zone business property.

[[Page 995]]

    (31) Qualified opportunity zone partnership interest.
    (32) Qualified opportunity zone property.
    (33) Qualified opportunity zone stock.
    (34) Qualifying investment.
    (35) Qualifying QOF partnership interest.
    (36) Qualifying QOF stock.
    (37) Qualifying section 355 transaction.
    (38) Qualifying section 381 transaction.
    (39) Related persons.
    (40) Remaining deferred gain.
    (41) Section 1400Z-2 regulations.
    (c) Operational and special rules.
    (1) Attributes of gains included in income under section 1400Z-
2(a)(1)(B).
    (2) Identification of which interest in a QOF corporation has been 
disposed of.
    (3) Pro-rata method.
    (4) Examples.
    (5) Making an investment for purposes of an election under section 
1400Z-2(a).
    (6) Amount invested for purposes of section 1400Z-2(a)(1)(A).
    (7) Eligible gains that a partnership elects to defer.
    (8) Eligible gains that the partnership does not defer.
    (9) Passthrough entities other than partnerships.
    (d) Elections.
    (1) Taxable year of deferral election.
    (2) Annual reporting of qualifying investments.
    (e) Interaction of section 1400Z-2 and Sec.  1.897-6T.
    (f) Treatment of mixed-funds investments.
    (1) Investments to which no election under section 1400Z-2(a) 
applies.
    (2) Treatment of deemed contributions of money under section 752(a).
    (3) Treatment of contributions to QOF corporation in which no stock 
is received.
    (4) Example.
    (g) Applicability dates.
    (1) In general.
    (2) Prior periods.

  Sec.  1.1400Z2(b)-1 Inclusion of gains that have been deferred under 
                           section 1400Z-2(a).

    (a) Scope.
    (b) General inclusion rule.
    (c) Inclusion events.
    (1) In general.
    (2) Termination or liquidation of QOF or QOF owner.
    (3) Transfer of an investment in a QOF by gift or incident to 
divorce.
    (4) Transfer of an investment in a QOF by reason of the taxpayer's 
death.
    (5) Grantor trusts.
    (6) Special rules for partners and partnerships.
    (7) Special rules for S corporations.
    (8) Distributions by a QOF corporation.
    (9) Dividend-equivalent redemptions and redemptions of section 306 
stock.
    (10) Qualifying section 381 transactions.
    (11) Section 355 transactions.
    (12) Recapitalizations and section 1036 transactions.
    (13) Section 304 transactions.
    (14) Deduction for worthlessness.
    (15) Decertification of a QOF.
    (16) Other inclusion and non-inclusion events.
    (d) Holding periods.
    (1) Holding period for qualifying investment.
    (2) Status of QOF assets as qualified opportunity zone property.
    (e) Amount includible.
    (1) In general.
    (2) Property received from a QOF in certain transactions.
    (3) Gain recognized on December 31, 2026.
    (4) Special amount includible rule for partnerships and S 
corporations.
    (5) Limitation on amount of gain included after statutory five-year 
and seven-year basis increases.
    (f) Examples.
    (g) Basis adjustments.
    (1) Basis adjustments under section 1400Z-2(b)(2)(B)(ii) resulting 
from the inclusion of deferred gain.
    (2) Amount of basis adjustment under section 1400Z-2(b)(2)(B)(iii) 
and (iv).
    (3) Examples.
    (4) Special partnership rules.
    (5) Basis adjustments in S corporation stock.
    (6) Basis in the hands of a taxpayer who received a qualifying 
investment in a QOF by reason of the prior owner's death.
    (h) Notifications by partners and partnerships, and shareholders 
and.
    (1) Notification of deferral election.
    (2) Notification of deferred gain recognition by indirect QOF owner.
    (3) Notification of section 1400Z-2(c) election by QOF partner or 
QOF partnership.
    (4) S corporations.
    (i) Reserved.
    (j) Applicability dates.
    (1) In general.
    (2) Prior periods.

       Sec.  1.1400Z2(c)-1 Investments held for at least 10 years.

    (a) Scope.
    (b) Investment for which an election can be made.
    (1) In general.
    (2) Special election rules for QOF partnerships and QOF S 
corporations.
    (3) Basis adjustments upon sale or exchange of qualifying QOF stock.
    (c) Extension of availability of the election described in section 
1400Z-2(c).
    (d) Examples.
    (e) Capital gain dividends paid by a QOF RIC or QOF REIT that some 
shareholders may be able to elect to receive tax free under section 
1400Z-2(c).

[[Page 996]]

    (1) Eligibility.
    (2) Definition of capital gain dividend identified with a date.
    (3) General limitations on the amounts of capital gain with which a 
date may be identified.
    (4) Determination of the amount of capital gain with which a date 
may be identified.
    (f) Applicability dates.

     Sec.  1.1400Z2(d)-1 Qualified opportunity funds and qualified 
                      opportunity zone businesses.

    (a) Overview.
    (1) Eligible entity.
    (2) Self-certification as a QOF.
    (3) Self-decertification of a QOF.
    (4) [Reserved]
    (b) Valuation of property for purposes of the 90-percent investment 
standard and the 70-percent tangible property standard.
    (1) In general.
    (2) Special rules.
    (3) Applicable financial statement valuation method.
    (4) Alternative valuation method.
    (c) Qualified opportunity zone property.
    (1) In general.
    (2) Qualified opportunity zone stock.
    (3) Qualified opportunity zone partnership interest.
    (d) Qualified opportunity zone business.
    (1) In general.
    (2) Satisfaction of 70-percent tangible property standard.
    (3) Operation of section 1397C requirements adopted by reference.
    (4) Trade or businesses described in section 144(c)(6)(B) not 
eligible.
    (5) Tangible property of a qualified opportunity zone business that 
ceases to be qualified opportunity zone business property
    (6) Cure period for qualified opportunity zone businesses.
    (e) Applicability dates.
    (1) In general.
    (2) Prior periods.

    Sec.  1.1400Z2(d)-2 Qualified opportunity zone business property

    (a) Qualified opportunity zone business property.
    (1) In general.
    (2) Qualified opportunity zone business property requirements.
    (b) Tangible property owned by an eligible entity.
    (1) Purchase requirement.
    (2) Original use or substantial improvement requirement.
    (3) Original use of tangible property acquired by purchase.
    (4) Substantial improvement of tangible property acquired by 
purchase.
    (c) Tangible property leased by an eligible entity.
    (1) Qualifying acquisition of possession.
    (2) Arms-length terms.
    (3) Additional requirements for tangible property leased from a 
related person.
    (4) Plan, intent, or expectation for purchases not for fair market 
value.
    (d) Holding period and use within a qualified opportunity zone of 
owned or leased tangible property.
    (1) In general.
    (2) Valuation of owned and leased property.
    (3) Substantially all of an eligible entity's holding period for 
owned or leased tangible property.
    (4) Substantially all of the use of owned or leased tangible 
property in a qualified opportunity zone.
    (e) Applicability dates.
    (1) In general.
    (2) Prior periods.

                     Sec.  1.1400Z2(e)-1 [Reserved]

  Sec.  1.1400Z2(f)-1 Administrative rules- penalties, anti-abuse, etc.

    (a) In general.
    (b) Time period for a QOF to reinvest certain proceeds.
    (1) In general.
    (2) Federally declared disasters.
    (c) Anti-abuse rules.
    (1) General anti-abuse rule.
    (2) Special anti-abuse rule for partnerships.
    (3) Examples.
    (d) Applicability dates.
    (1) In general.
    (2) Prior periods.

[T.D. 9889, 85 FR 1953, Jan. 13, 2020; 85 FR 19082, Apr. 6, 2020]



Sec.  1.1400Z2(a)-1  Deferring tax on capital gains by investing in 
opportunity zones.

    (a) Deferring tax on capital gains--(1) Overview. Under section 
1400Z-2(a) of the Internal Revenue Code (Code) and the section 1400Z-2 
regulations (as defined in paragraph (b)(41) of this section), an 
eligible taxpayer may elect to defer recognition of some or all of one 
or more eligible gains that otherwise would be recognized by the 
eligible taxpayer in the taxable year to the extent that the eligible 
taxpayer timely acquires a qualifying investment in a qualified 
opportunity fund (QOF) within the meaning of section 1400Z-2(d)(1) and 
Sec.  1.1400Z2(d)-1. Paragraph (a)(2) of this section describes how a 
taxpayer elects to defer gain. Paragraph (b) of this section defines 
terms used in the section 1400Z-2 regulations. Paragraph (c) of this 
section provides operational rules for applying section 1400Z-2 and

[[Page 997]]

the section 1400Z-2 regulations, including special rules regarding the 
election to defer gain under section 1400Z-2(a) and this section when an 
eligible taxpayer that is a partnership, S corporation, trust, or 
decedent's estate recognizes an eligible gain in a taxable year. 
Paragraph (d) of this section provides the manner in which a deferral 
election under section 1400Z-2(a) must be made. Paragraph (e) of this 
section provides the treatment of section 1400Z-2 for purposes of Sec.  
1.897-6T. Paragraph (f) of this section provides rules for mixed-funds 
investments. Paragraph (g) of this section provides dates of 
applicability. See Sec. Sec.  1.1502-14Z and 1.1504-3 for special rules 
applicable to consolidated groups that invest in QOFs.
    (2) Procedure for deferring gain. A taxpayer defers gain, in whole 
or in part, by making an election on its Federal income tax return for 
the taxable year in which the gain would be included if not deferred. 
The election must be made in the manner prescribed by the Internal 
Revenue Service in guidance published in the Internal Revenue Bulletin 
or in forms and instructions (see Sec. Sec.  601.601(d)(2) and 601.602 
of this chapter).
    (b) Definitions. The following definitions apply for purposes of 
section 1400Z-2 and the section 1400Z-2 regulations:
    (1) 30-month substantial improvement period. The term 30-month 
substantial improvement period means any 30-month period, beginning 
after the date of acquisition of tangible property, in which additions 
to the basis of the tangible property in the hands of the QOF or 
qualified opportunity zone business (see Sec.  1.1400Z2(d)-2(b)(4)) 
exceed an amount equal to the adjusted basis of such property at the 
beginning of the 30-month period in the hands of the QOF or qualified 
opportunity zone business.
    (2) 70-percent tangible property standard. The term 70-percent 
tangible property standard means the requirement in section 1400Z-
2(d)(3)(A)(i) that a qualified opportunity zone business must satisfy 
with respect to qualified opportunity zone business property (see Sec.  
1.1400Z2(d)-2) that the qualified opportunity zone business holds, 
whether the qualified opportunity zone business property is owned by the 
qualified opportunity zone business or leased by the qualified 
opportunity zone business from another person.
    (3) 70-percent use test. The term 70-percent use test means the test 
described in Sec.  1.1400Z2(d)-2(d)(4)(ii) that is used to determine if 
a QOF or qualified opportunity zone business satisfies the requirement 
in sections 1400Z-2(d)(2)(D)(i)(III) and 1400Z-2(d)(3)(A)(i) that 
substantially all of the use of tangible property was in a qualified 
opportunity zone.
    (4) 90-percent investment standard. The term 90-percent investment 
standard means the requirement provided in section 1400Z-2(d)(1) that a 
QOF must hold at least 90 percent of its assets in qualified opportunity 
zone property, as defined in section 1400Z-2(d)(2) and Sec.  
1.1400Z2(d)-1(c)(1), determined by the average of the percentage of 
qualified opportunity zone property held by the QOF as measured on the 
last day of the first six-month period and on the last day of the 
taxable year of the QOF.
    (5) 90-percent qualified opportunity zone property holding period. 
The term 90-percent qualified opportunity zone property holding period 
means the minimum portion of a QOF's holding period in stock of a 
corporation or interests in a partnership, during which the corporation 
or partnership qualifies as a qualified opportunity zone business in 
order for the stock or the partnership interests to meet the 
substantially all requirement under section 1400Z-2(d)(2)(B)(i)(III) to 
be treated as qualified opportunity zone stock or the substantially all 
requirement under section 1400Z-2(d)(2)(C)(iii) to be treated as 
qualified opportunity zone partnership interests, as applicable, held by 
the QOF.
    (6) 90-percent qualified opportunity zone business property holding 
period. The term 90-percent qualified opportunity zone business property 
holding period means the minimum portion of a QOF's or qualified 
opportunity zone business's holding period in tangible property during 
which the 70-percent use test with respect to the tangible property must 
be satisfied, in order for the tangible property to meet the requirement 
under section 1400Z-

[[Page 998]]

2(d)(2)(D)(i)(III) to be treated as qualified opportunity zone business 
property held by the QOF or qualified opportunity zone business.
    (7) 180-day period--(i) In general. Except as otherwise provided 
elsewhere in this section, the term 180-day period means the 180-day 
period referred to in section 1400Z-2(a)(1)(A) with respect to any 
eligible gain meeting the requirements of paragraph (b)(11) of this 
section that begins on the day on which the gain would be recognized for 
Federal income tax purposes if the eligible taxpayer did not elect under 
section 1400Z-2 and the section 1400Z-2 regulations to defer recognition 
of that gain.
    (ii) 180-day period for RIC and REIT capital gain dividends--(A) 
General rule. Unless the shareholder of a regulated investment company 
(RIC) or real estate investment trust (REIT) chooses to apply paragraph 
(b)(7)(ii)(B) of this section, the 180-day period for a RIC or REIT 
capital gain dividend begins on the last day of the shareholder's 
taxable year in which the capital gain dividend would otherwise be 
recognized by the shareholder.
    (B) Elective rule. Notwithstanding the general rule in paragraph 
(b)(7)(ii)(A) of this section, a shareholder of a RIC or REIT may choose 
to treat the 180-day period with respect to a capital gain dividend that 
the shareholder receives from the RIC or REIT as beginning on the date 
of the dividend distribution; provided, however, that the aggregate 
amount of the shareholder's eligible gain with respect to capital gain 
dividends from the RIC or REIT is limited to the aggregate amount of 
capital gain dividends reported for that shareholder by the RIC for that 
shareholder's taxable year or designated for that shareholder by the 
REIT for that shareholder's taxable year.
    (C) Undistributed capital gains. If section 852(b)(3)(D) or 
857(b)(3)(C) (concerning undistributed capital gains) requires the 
holder of shares in a RIC or REIT to include an amount in the 
shareholder's long-term capital gains, the rule in paragraph 
(b)(7)(ii)(B) of this section does not apply to that amount. The 180-day 
period with respect to the included undistributed capital gain begins, 
at the shareholder's election, on either the last day of the RIC or 
REIT's taxable year or the last day of the shareholder's taxable year in 
which the amount would otherwise be recognized as long-term capital 
gains by the shareholder.
    (iii) 180-day period for partners, S corporation shareholders, and 
owners of other passthrough entities. See paragraph (c)(8) and (9) of 
this section for rules relating to the determination of the 180-day 
period for partners, S corporation shareholders, or beneficiaries of a 
trust or decedent's estate in cases in which a partnership, S 
corporation, trust, or decedent's estate is not an eligible taxpayer 
with respect to an eligible gain, or does not make a deferral election 
with respect to an eligible gain.
    (iv) Examples. The following examples illustrate the principles of 
paragraph (b)(7)(i) through (iii) of this section.

    (A) Example 1. Regular-way trades of stock. Individual A sells stock 
at a gain in a regular-way trade on an exchange (that is, in a 
transaction in which a trade order is placed on the trade date, and 
settlement of the transaction, including payment and delivery of the 
stock, occurs a standardized number of days after the trade date). The 
180-day period with respect to A's gain on the stock begins on the trade 
date.
    (B) Example 2. Capital gain dividends received by a REIT 
shareholder. REIT and Shareholder are calendar year taxpayers. REIT 
distributes a dividend to Shareholder on March 1, Year 1. REIT 
designates the March 1 dividend as a capital gain dividend before 30 
days after the close of Year 1. Shareholder's 180-day period with 
respect to that capital gain dividend begins on December 31, Year 1. 
However, Shareholder may choose to begin the 180-day period on March 1, 
Year 1. If so, an equity interest in a QOF received by Shareholder in 
exchange for an investment of an amount corresponding to that capital 
gain dividend may be a qualifying investment to the extent that 
Shareholder's aggregate elected deferrals of dividends from REIT for 
Year 1 do not exceed Shareholder's aggregate capital gain dividends from 
REIT for the taxable year.
    (C) Example 3. Multiple capital gain dividends received by a RIC 
shareholder. RIC is a calendar year taxpayer. RIC distributes a dividend 
of $100 to Shareholder, a calendar year taxpayer, on March 1, Year 1 and 
distributes another dividend of $50 to Shareholder on June 1, Year 1. 
RIC reports both the March 1 and June 1 dividends as capital gain 
dividends on Shareholder's Form 1099-DIV for Year 1. Shareholder's 180-
day period with respect to both capital gain dividends begins

[[Page 999]]

on December 31, Year 1. However, Shareholder may choose to begin the 
180-day period for the $100 RIC capital gain dividend on March 1, Year 
1, and may choose to begin the 180-day period for the $50 RIC capital 
gain dividend on June 1, Year 1. Thus, if Shareholder makes a single 
investment of $200 in a QOF in exchange for an eligible interest (as 
defined in paragraph (b)(12) of this section) on July 1, Year 1, absent 
any other eligible gain, Shareholder may treat $150 of the eligible 
interest as a qualifying investment in the QOF (that is, the amount that 
corresponds to the aggregate amount of the RIC capital gain dividends in 
Year 1) and $50 of the eligible interest as a non-qualifying investment 
therein.
    (D) Example 4. Additional deferral of previously deferred gains--(1) 
Facts. Taxpayer A invested in a QOF and properly elected to defer 
realized gain. On March 15, 2025, A disposes of its entire investment in 
the QOF in a transaction that, under sections 1400Z-2(a)(1)(B) and (b), 
triggers an inclusion of gain in A's gross income. Section 1400Z-2(b) 
determines the date and amount of the gain included in A's income. That 
date is March 15, 2025, the date on which A disposed of its entire 
interest in the QOF. A wants to make a deferral election with respect to 
A's gain from the disposal of the QOF investment.
    (2) Analysis. Under paragraph (b)(7)(i) of this section, the 180-day 
period for making another investment in a QOF begins on the day on which 
section 1400Z-2(b) requires the prior gain to be included. As prescribed 
by section 1400Z-2(b)(1)(A), that is March 15, 2025, the date of the 
inclusion-triggering disposition. Thus, in order to make a deferral 
election under section 1400Z-2, A must invest the amount of the 
inclusion in the original QOF or in another QOF during the 180-day 
period beginning on March 15, 2025, the date when A disposed of its 
entire investment in the QOF.

    (8) Boot. The term boot means money or other property that section 
354 or 355 does not permit to be received without the recognition of 
gain.
    (9) Consolidated group. The term consolidated group has the meaning 
provided in Sec.  1.1502-1(h).
    (10) Deferral election. The term deferral election means an election 
under section 1400Z-2(a) and the section 1400Z-2 regulations made before 
January 1, 2027, with respect to an eligible gain.
    (11) Eligible gain--(i) In general. An amount of gain is an eligible 
gain, and thus is eligible for deferral under section 1400Z-2(a) and the 
section 1400Z-2 regulations, if the gain--
    (A) Is treated as a capital gain for Federal income tax purposes or 
is a qualified 1231 gain within the meaning of paragraph (b)(11)(iii)(A) 
of this section, determined by--
    (1) Not taking into account any losses unless otherwise specified in 
the section 1400Z-2 regulations; and
    (2) Taking into account any other provision of the Code that 
requires the character of potential capital gain to be recharacterized 
or redetermined as ordinary income, as defined in section 64, for 
purposes of the Code;
    (B) Would be recognized for Federal income tax purposes and subject 
to tax under subtitle A of the Code before January 1, 2027 (subject to 
Federal income tax), if section 1400Z-2(a)(1) did not apply to defer 
recognition of the gain; and
    (C) Does not arise from a sale or exchange of property with a person 
that, within the meaning of section 1400Z-2(e)(2), is related to--
    (1) The eligible taxpayer that would recognize the gain in the 
taxable year in which the sale or exchange occurs if section 1400Z-
2(a)(1) and the section 1400Z-2 regulations did not apply to defer 
recognition of the gain; or
    (2) Any passthrough entity or other person recognizing and 
allocating the gain to the eligible taxpayer described in paragraph 
(b)(11)(i)(C)(1) of this section.
    (ii) Portion of eligible gain not already subject to a deferral 
election. In the case of an eligible taxpayer who has made an election 
under section 1400Z-2(a) and the section 1400Z-2 regulations regarding 
some but not all of an eligible gain, the portion of that eligible gain 
with respect to which no election under section 1400Z-2(a) and the 
section 1400Z-2 regulations has been made remains an eligible gain for 
which a deferral election may be made.
    (iii) Qualified 1231 gains--(A) Definition. A section 1231 gain (as 
defined in section 1231(a)(3)(A)) recognized on the sale or exchange of 
property defined in section 1231(b) (1231(b) property) is a qualified 
1231 gain to the extent that it exceeds any amount with respect to the 
1231(b) property that is treated as ordinary income under section 1245 
or section 1250.

[[Page 1000]]

    (B) 180-day period. For the applicable 180-day period with respect 
to a qualified 1231 gain, see paragraph (b)(7) of this section.
    (C) Attributes of included income when deferral ends. For the 
Federal income tax treatment of the later inclusion of a qualified 1231 
gain deferred under section 1400Z-2(a)(1) and the section 1400Z-2 
regulations, see paragraph (c)(1) of this section.
    (iv) Gain arising from an inclusion event--(A) In general. Gain that 
is otherwise required to be included in gross income under Sec.  
1.1400Z2(b)-1(e)(1), whether from the disposition of an entire interest 
in a QOF or a disposition of a partial interest, may be eligible for 
deferral under section 1400Z-2(a)(1), provided that all of the 
requirements to elect to defer gain under section 1400Z-2(a)(1)(A) are 
met. For purposes of determining whether such gain is eligible gain 
under section 1400Z-2(a)(1)(A) and this paragraph (b)(11)(iv)(A), the 
eligible taxpayer should treat such inclusion gain as if it was 
originally realized upon the occurrence of the inclusion event rather 
than on the sale or exchange that gave rise to the eligible gain to 
which the inclusion event relates.
    (B) 180-day period. The 180-day period for investing gain from an 
inclusion event begins on the date of the inclusion event.
    (C) Holding period. The holding period for a qualifying investment 
attributable to eligible gain arising from an inclusion event begins on 
the date that the gain is reinvested in a QOF.
    (v) No deferral for gain realized upon the acquisition of an 
eligible interest. Gain is not eligible for deferral under section 
1400Z-2(a)(1) and the section 1400Z-2 regulations if such gain is 
realized upon the contribution, exchange, or other transfer of property 
to a QOF in exchange for an eligible interest (see paragraph 
(c)(6)(ii)(C) of this section) or the transfer of property to an 
eligible taxpayer in exchange for an eligible interest (see paragraph 
(c)(6)(iv) of this section).
    (vi) Gain from section 1256 contracts and from positions in a 
straddle--(A) General rule. Except as otherwise explicitly provided in 
paragraph (b)(11)(vi)(B), (C), or (D) of this section, eligible gain for 
a taxable year does not include--
    (1) Gain from a section 1256 contract as defined in section 1256(b);
    (2) Gain from a position that was part of a straddle as defined in 
section 1092 (straddle) during the taxable year; or
    (3) Gain from a position that was part of a straddle in a previous 
taxable year if, under section 1092(a)(1)(B), a loss from any position 
in that straddle is treated as sustained, subject to the limitations of 
section 1092(a)(1)(A), during the taxable year.
    (B) Exception for net gain from certain section 1256 contracts. 
Paragraph (b)(11)(vi)(A)(1) of this section does not apply to the net 
gain during the taxable year from section 1256 contracts that were not 
part of a straddle at any time during the taxable year (qualified 
section 1256 contracts). For purposes of this paragraph (b)(11)(vi)(B), 
the net gain during the taxable year from qualified section 1256 
contracts is determined by taking into account all capital gains and 
losses from such contracts for the taxable year that are recognized for 
Federal income tax purposes, determined without regard to section 1400Z-
2(a)(1). The 180-day period with respect to any eligible gain described 
in this paragraph (b)(11)(vi)(B) begins on the last day of the taxable 
year, and the character of that gain when it is later included under 
sections 1400Z-2(a)(1)(B) and 1400Z-2(b) is determined under the general 
rule in paragraph (c)(1) of this section. If, under section 1256(a)(4), 
section 1092 does not apply to a straddle, such straddle is not treated 
as a straddle for purposes of this paragraph (b)(11)(vi)(B).
    (C) Exception for net gain from certain identified straddles--(1) 
Paragraph (b)(11)(vi)(A) of this section does not apply to the net gain 
during the taxable year from positions in a straddle if--
    (i) During the taxable year, the positions were part of an 
identified straddle under section 1092(a)(2), part of an identified 
mixed straddle under Sec.  1.1092(b)-3T (and, as applicable, Sec.  
1.1092(b)-6), part of an identified straddle under section 1256(d), or 
included in a mixed straddle account under Sec.  1.1092(b)-4T;

[[Page 1001]]

    (ii) All gains and losses with respect to the positions that were 
part of such straddle or included in such mixed straddle account are 
recognized by the end of the taxable year (other than gain that would be 
recognized but for deferral under section 1400Z-2(a)(1));
    (iii) None of the positions in such straddle or mixed straddle 
account were part of a straddle during the taxable year, other than a 
straddle described in paragraph (b)(11)(vi)(C)(1)(i) and (ii) of this 
section; and
    (iv) None of the positions in such straddle or mixed straddle 
account were part of a straddle in a previous taxable year if, under 
section 1092(a)(1)(B), a loss from any position in such straddle is 
treated as sustained, subject to the limitations of section 
1092(a)(1)(A), during the taxable year.
    (2) For purposes of paragraph (b)(11)(vi)(C)(1) of this section, net 
gain during the taxable year from an identified straddle or mixed 
straddle account described in paragraph (b)(11)(vi)(C)(1)(i) through 
(iv) of this section is equal to the excess of the capital gains 
recognized in the taxable year for Federal income tax purposes, 
determined without regard to section 1400Z-2(a)(1), from all of the 
positions that were part of that straddle over the sum of the capital 
losses and net ordinary loss (if any) from all of the positions that 
were part of that straddle. For purposes of this paragraph 
(b)(11)(vi)(C)(2), capital gains and losses from an identified straddle 
or mixed straddle account include capital gains and losses from section 
1256 contracts and other positions marked to market either upon 
termination or on the last business day of the taxable year, as well as 
annual account net gain from positions in a mixed straddle account 
covered by Sec.  1.1092(b)-4T. In addition, for purposes of this 
paragraph (b)(11)(vi)(C)(2), net ordinary loss means the excess of 
ordinary losses over ordinary gains.
    (3) If a straddle is an identified straddle described in section 
1092(a)(2), the basis adjustment provisions described in sections 
1092(a)(2)(A)(ii) and (iii) must be applied in determining the net gain 
during the taxable year from positions that were part of that straddle.
    (4) The 180-day period with respect to any eligible gain described 
in paragraph (b)(11)(vi)(C)(2) of this section begins on the earlier of 
the date when all of the positions that are, or have been, part of the 
straddle are disposed of (or otherwise terminated) or the last day of 
the taxable year.
    (5) If net gain described in paragraph (b)(11)(vi)(C)(2) of this 
section is deferred under section 1400Z-2(a)(1), that gain is not 
treated as unrecognized gain for purposes of section 1092(a)(3)(A)(ii).
    (D) Additional exceptions to the general rule. Additional exceptions 
to the general rule in paragraph (b)(11)(vi)(A) of this section may be 
prescribed in guidance published in the Internal Revenue Bulletin (see 
Sec.  601.601(d)(2) of this chapter).
    (E) Examples. The following examples illustrate the rules described 
in paragraph (b)(11)(vi) of this section. All of the examples assume 
that Taxpayer holds the positions described as capital assets and that 
Taxpayer holds no offsetting positions other than those described in the 
examples.
    (1) Example 1. Taxpayer owns 100 shares of publicly traded Company X 
common stock and acquires put options on 100 shares of Company X common 
stock during the taxable year. Taxpayer does not make any straddle 
identifications under section 1092. During the taxable year, Taxpayer 
sells all 100 shares of its Company X common stock and has a $40 capital 
gain. During the taxable year, Taxpayer also closes out all of its put 
options on Company X common stock and has a $30 capital loss. That $40 
of capital gain is from a position that was part of a straddle during 
the taxable year because the position in Company X common stock and the 
position in put options on Company X stock are offsetting positions as 
defined in section 1092(c). Under paragraph (b)(11)(vi)(A) of this 
section, none of Taxpayer's $40 of capital gain is eligible gain.
    (2) Example 2. Taxpayer's taxable year is the calendar year. 
Taxpayer owns 100 shares of publicly traded Company Y common stock and 
has a basis in each share of $10.00. Taxpayer also owns put options on 
100 shares of Company Y common stock. Taxpayer

[[Page 1002]]

makes a valid and timely identification under section 1092(a)(2) of the 
100 shares of Company Y common stock and the put options on the 100 
shares of Company Y common stock. On January 10, Year 1, Taxpayer closes 
out all of the put options and has a $30.00 capital loss. On March 10, 
Year 1, Taxpayer sells 40 shares of the Company Y common stock for 
$11.00 per share. At the end of Year 1, the fair market value of each of 
the 60 remaining shares of Company Y common stock held by Taxpayer is 
$10.50. Under section 1092(a)(2)(A)(ii), when the put options are closed 
out at a loss of $30.00, the basis of each of Taxpayer's shares of 
Company Y common stock is increased by $0.30 ($30.00/100). Thus, 
Taxpayer has a gain of $28.00 ((40 * $11.00)-(40 * $10.30)) on the sale 
of the 40 shares of Company Y common stock. Paragraph (b)(11)(vi)(A) of 
this section applies to all of Taxpayer's gain during the taxable year 
from the straddle. Because Taxpayer has unrecognized gain from the 
straddle at the end of the taxable year, paragraph (b)(11)(vi)(C) of 
this section does not shield any of Taxpayer's gain from that result. 
The $28 of gain is thus not eligible gain. Taxpayer must recognize and 
include in taxable income for the taxable year the $28.00 capital gain. 
Under section 1092(a)(2)(A)(iv), Taxpayer may not deduct the $30.00 loss 
from the put options.
    (3) Example 3. The facts are the same as in paragraph 
(b)(11)(vi)(E)(2) of this section (Example 2), except Taxpayer sells the 
100 shares of Company Y common stock on March 10, Year 1, for $11.50 per 
share. Under section 1092(a)(2)(A)(ii), as in paragraph 
(b)(11)(vi)(E)(2) of this section (Example 2), when the put options are 
closed out at a loss of $30.00, the basis of each of Taxpayer's shares 
of Company Y common stock is increased by $0.30 ($30.00/100). Taxpayer 
has a gain of $120.00 ((100 * $11.50)-(100 * $10.30)) on the sale of the 
100 shares of Company Y common stock. Taxpayer has net gain during the 
taxable year from the identified straddle of $120.00. Under paragraph 
(b)(11)(vi)(C) of this section, paragraph (b)(11)(vi)(A) of this section 
does not apply to prevent the $120.00 net gain from being eligible gain. 
As in paragraph (b)(11)(vi)(E)(2) of this section (Example 2), under 
section 1092(a)(2)(A)(iv), Taxpayer may not deduct the $30.00 loss from 
the put options.
    (4) Example 4. Taxpayer's taxable year is the calendar year. 
Taxpayer owns 100 shares of publicly traded Company Z common stock and 
has a basis in each share of $10. Taxpayer also owns put options on 100 
shares of Company Z common stock. In Year 1, Taxpayer closes out the put 
options at a $100 loss. At the end of Year 1, the fair market value of 
each of the shares of Company Z common stock held by Taxpayer is $15 
and, under section 1092(a)(3), Taxpayer has $500 of unrecognized gain. 
Because Taxpayer's unrecognized gain on the Company Z common stock at 
the end of Year 1 exceeds Taxpayer's loss on the put options, Taxpayer's 
loss is deferred under section 1092(a)(1). During Year 2, Taxpayer sells 
40 shares of Company Z common stock for $14 per share. Taxpayer has a 
gain of $160 ((40 * $14)-(40 * $10)) on the sale of the 40 shares of 
Company Z common stock. Under paragraph (b)(11)(vi)(A) of this section, 
because Taxpayer's Company Z common stock was part of a straddle in a 
previous taxable year and a loss from a position in that straddle was 
deferred under section 1092(a) at the end of Year 1, the preceding 
taxable year, Taxpayer's $160 Year 2 gain on the sale of the Company Z 
common stock is not eligible gain. At the end of Year 2, the fair market 
value of each of the 60 remaining shares of Company Z common stock held 
by Taxpayer is $10 and Taxpayer has no unrecognized gain on its Company 
Z common stock. Under section 1092(a)(1)(B), Taxpayer's $100 loss from 
Year 1 is treated as sustained in Year 2. Because Taxpayer has no 
unrecognized gain on its Company Z common stock at the end of Year 2, 
Taxpayer may deduct the $100 loss in Year 2. In Year 3, Taxpayer sells 
the remaining 60 shares of Company Z common stock for $50 per share. 
Taxpayer has a gain of $2,400 ((60 * $50)-(60 * $10)) on the sale of the 
60 shares of Company Z common stock. Because there was no loss from the 
straddle deferred under section 1092(a) at the end of Year 2, paragraph 
(b)(11)(vi)(A) of this section

[[Page 1003]]

does not apply to prevent the $2,400 of Year 3 net gain from being 
eligible gain.
    (5) Example 5. Taxpayer's taxable year is the calendar year. On 
October 5, Year 1, Taxpayer buys 100 shares of publicly traded Exchange 
Traded Fund A (ETF A) and acquires offsetting section 1256 contracts on 
the index that underlies the ETF A shares. Taxpayer makes a valid and 
timely identification of all 100 ETF A shares and the offsetting section 
1256 contracts under Sec.  1.1092(b)-3T. On December 31, Year 1, the 
fair market value of the ETF A shares has increased by $500, and the 
fair market value of the section 1256 contracts has decreased by $450. 
On December 31, Year 1, Taxpayer sells the ETF shares for a $500 gain. 
In addition, under section 1256(a)(1), the section 1256 contracts are 
treated as sold for fair market value on December 31, Year 1, for a $450 
loss. Pursuant to Sec.  1.1092(b)-3T(b)(4), Taxpayer has a net short 
term capital gain from the identified mixed straddle of $50 ($500-$450). 
Under paragraph (b)(11)(vi)(C) of this section, paragraph (b)(11)(vi)(A) 
of this section does not apply to prevent the $50 of net short term 
capital gain from being eligible gain.
    (vii) [Reserved]
    (viii) Eligible installment sale gains--(A) In general. The term 
eligible gain includes gains described in this paragraph (b)(11) that 
would be recognized by an eligible taxpayer under the installment method 
pursuant to section 453 and with Sec. Sec.  1.453-1 through 1.453-12 for 
a taxable year, provided such gain otherwise meets the requirements of 
this paragraph (b)(11). This includes gains recognized under the 
installment method under section 453 from an installment sale that 
occurred before December 22, 2017.
    (B) 180-day period for gain from installment sales. For gains 
reported on the installment method, an eligible taxpayer may treat the 
date the payment on the installment sale is received or the last day of 
the taxable year in which the eligible taxpayer would have recognized 
the gain under the installment method as the beginning of the 180-day 
period described in paragraph (b)(7) of this section. Thus, if an 
eligible taxpayer receives one or more payments on an installment sale 
and treats the date the payment on the installment sale is received as 
the beginning of the 180-day period, each payment will begin a new 180-
day period.
    (ix) Additional rules for determining if gain is subject to Federal 
income tax--(A) Application of a treaty--(1) In general. For purposes of 
paragraph (b)(11)(i)(B) of this section, whether gain would be subject 
to Federal income tax is determined after application of any treaty 
exemption provision that an eligible taxpayer elects to apply under any 
applicable U.S. income tax convention.
    (2) Treaty waiver. An eligible taxpayer who is not a United States 
person within the meaning of section 7701(a)(30) (or an eligible 
taxpayer who is a United States person within the meaning of section 
7701(a)(30) but who is treated as a resident of another country under an 
applicable U.S. income tax convention) may not make an election to defer 
gain pursuant to section 1400Z-2(a) after the applicability date of this 
section (see paragraph (g) of this section) unless such eligible 
taxpayer irrevocably waives, in accordance with forms and instructions 
(see Sec.  601.602 of this chapter), any treaty benefits that would 
exempt such gain from being subject to Federal income tax at the time of 
inclusion pursuant to an applicable U.S. income tax convention. In the 
event that such forms and instructions that include such waiver have not 
yet been published when an election pursuant to paragraph (d)(1) of this 
section is required to be made, such an eligible taxpayer must attach a 
written statement, signed under penalties of perjury, to any forms on 
which an election is made pursuant to paragraph (d)(1) of this section, 
which states ``With respect to gain deferred pursuant to an election 
under section 1400Z-2(a), the below signed taxpayer irrevocably waives 
any treaty benefits that would exempt such gain from being subject to 
Federal income tax at the time of inclusion pursuant to an applicable 
U.S. income tax convention.'' If such an eligible taxpayer chooses to 
apply the section 1400Z-2 regulations in a consistent manner for all 
taxable years (see paragraph (g)(2)(i) of this section), the taxpayer 
must include the signed

[[Page 1004]]

statement required under this paragraph (b)(11)(ix)(A)(2) with the first 
annual report described in paragraph (d)(2) of this section that is 
required to be filed on a date that is after March 13, 2020. An eligible 
taxpayer not described in the first sentence of this paragraph 
(b)(11)(ix)(A)(2) will only be required to make the waiver described in 
this paragraph (b)(11)(ix)(A)(2) if and to the extent required in forms 
and instructions (see Sec.  601.602 of this chapter).
    (3) Non-application to certain entities. This paragraph 
(b)(11)(ix)(A) does not apply to an entity described in paragraph 
(b)(11)(ix)(B) of this section.
    (B) Gain of a partnership. Subject to Sec.  1.1400Z2(f)-1(c), with 
respect to a partnership, the requirement in paragraph (b)(11)(i)(B) of 
this section that a gain be subject to Federal income tax does not apply 
to an otherwise eligible gain of the partnership, provided the 
partnership acquires the eligible interest with respect to such gain. 
See Sec.  1.1400Z2(f)-1(c)(3)(i) and (ii), Examples 1 and 2, for 
illustrations of the application of Sec.  1.1400Z2(f)-1(c) (providing an 
anti-abuse rule) to a partnership.
    (12) Eligible interest--(i) In general. For purposes of section 
1400Z-2, an eligible interest in a QOF is an equity interest issued by 
the QOF, including preferred stock or a partnership interest with 
special allocations. Thus, the term eligible interest excludes any debt 
instrument including those within the meaning of section 1275(a)(1) and 
Sec.  1.1275-1(d). An eligible interest includes a pre-existing interest 
in an entity that becomes a QOF pursuant to Sec.  1.1400Z2(d)-
1(a)(1)(iii).
    (ii) Use as collateral permitted. Provided that the eligible 
taxpayer is the owner of the equity interest in the QOF for Federal 
income tax purposes, status as an eligible interest is not impaired by 
using the interest as collateral for a loan, whether as part of a 
purchase-money borrowing or otherwise.
    (iii) Deemed contributions not creating mixed-funds investment. See 
paragraph (f)(2) of this section for rules regarding deemed 
contributions of money to a partnership pursuant to section 752(a).
    (13) Eligible taxpayer. An eligible taxpayer is a person that is 
required to report the recognition of gains during the taxable year 
under Federal income tax accounting principles. Thus, for example, 
eligible taxpayers include individuals; C corporations, including RICs 
and REITs; organizations subject to tax under section 511; and 
partnerships, S corporations, trusts, and decedents' estates to the 
extent permitted by paragraphs (c)(7) through (9) of this section.
    (14) Inclusion event. The term inclusion event has the meaning 
provided in Sec.  1.1400Z2(b)-1(c).
    (15) Mixed-funds investment. The term mixed-funds investment means 
an investment a portion of which is a qualifying investment and a 
portion of which is a non-qualifying investment.
    (16) Non-qualifying investment. The term non-qualifying investment 
means an investment in a QOF described in section 1400Z-2(e)(1)(A)(ii).
    (17) Property--(i) In general. The term property means money, 
securities, or any other property.
    (ii) Inclusion events regarding QOF corporation distributions. For 
purposes of Sec.  1.1400Z2(b)-1(c), in the context in which a QOF 
corporation makes a distribution, the term property does not include 
stock (or rights to acquire stock) in the QOF corporation that makes the 
distribution.
    (18) QOF. The term QOF means a qualified opportunity fund, as 
defined in section 1400Z-2(d)(1) and Sec.  1.1400Z2(d)-1.
    (19) QOF C corporation. The term QOF C corporation means a QOF 
corporation other than a QOF S corporation.
    (20) QOF corporation. The term QOF corporation means a QOF that is 
classified as a corporation for Federal income tax purposes.
    (21) QOF RIC. The term QOF RIC means a QOF that elects to be taxed 
as a RIC for Federal income tax purposes. For purposes of section 1400Z-
2 and the section 1400Z-2 regulations, a RIC is a regulated investment 
company within the meaning of section 851.
    (22) QOF REIT. The term QOF REIT means a QOF that elects to be taxed 
as a REIT for Federal income tax purposes. For purposes of section 
1400Z-2 and the section 1400Z-2 regulations, a REIT is a real estate 
investment trust within the meaning of section 856.

[[Page 1005]]

    (23) QOF owner. The term QOF owner means a QOF shareholder or a QOF 
partner.
    (24) QOF partner. The term QOF partner means a person that directly 
owns a qualifying investment in a QOF partnership or a person that owns 
such a qualifying investment through equity interests solely in one or 
more partnerships.
    (25) QOF partnership. The term QOF partnership means a QOF that is 
classified as a partnership for Federal income tax purposes.
    (26) QOF S corporation. The term QOF S corporation means a QOF 
corporation that has elected under section 1362 to be an S corporation.
    (27) QOF shareholder. The term QOF shareholder means a person that 
directly owns a qualifying investment in a QOF corporation.
    (28) QOZ designation notice. The term QOZ designation notice means a 
notice designating population census tracts as qualified opportunity 
zones (QOZs) in guidance published in the Internal Revenue Bulletin (see 
Sec.  601.601(d)(2) of this chapter).
    (29) Qualified opportunity zone business. The term qualified 
opportunity zone business has the meaning provided in section 1400Z-
2(d)(3) and Sec.  1.1400Z2(d)-1(d).
    (30) Qualified opportunity zone business property. The term 
qualified opportunity zone business property has the meaning provided in 
section 1400Z-2(d)(2)(D) and Sec.  1.1400Z2(d)-2.
    (31) Qualified opportunity zone partnership interest. The term 
qualified opportunity zone partnership interest has the meaning provided 
in section 1400Z-2(d)(2)(C) and Sec.  1.1400Z2(d)-1(c)(3).
    (32) Qualified opportunity zone property. The term qualified 
opportunity zone property has the meaning provided in section 1400Z-
2(d)(2)(A) and Sec.  1.1400Z2(d)-1(c)(1).
    (33) Qualified opportunity zone stock. The term qualified 
opportunity zone stock has the meaning provided in section 1400Z-
2(d)(2)(B) and Sec.  1.1400Z2(d)-1(c)(2).
    (34) Qualifying investment. The term qualifying investment means an 
eligible interest, or portion thereof, in a QOF to the extent that a 
deferral election is made and applies with respect to such eligible 
interest or portion thereof and the IRS has been timely notified of the 
deferral election. An eligible interest in a QOF ceases to be a 
qualifying investment of the owner upon, and to the extent of, the 
occurrence of an inclusion event with regard to that eligible interest, 
or portion thereof, except as is expressly provided otherwise in Sec.  
1.1400Z2(b)-1(c) or other provisions of the section 1400Z-2 regulations.
    (35) Qualifying QOF partnership interest. The term qualifying QOF 
partnership interest means a direct or indirect interest in a QOF 
partnership that is a qualifying investment.
    (36) Qualifying QOF stock. The term qualifying QOF stock means stock 
in a QOF corporation that is a qualifying investment.
    (37) Qualifying section 355 transaction. The term qualifying section 
355 transaction means a distribution described in Sec.  1.1400Z2(b)-
1(c)(11)(i)(B).
    (38) Qualifying section 381 transaction. The term qualifying section 
381 transaction means a transaction described in section 381(a)(2), 
except the following transactions:
    (i) An acquisition of assets of a QOF by a QOF shareholder that 
holds a qualifying investment in the QOF;
    (ii) An acquisition of assets of a QOF by a tax-exempt entity as 
defined in Sec.  1.337(d)-4(c)(2);
    (iii) An acquisition of assets of a QOF by an entity operating on a 
cooperative basis within the meaning of section 1381;
    (iv) An acquisition by a QOF of assets of a QOF shareholder that 
holds a qualifying investment in the QOF;
    (v) A reorganization of a QOF in a transaction that qualifies under 
section 368(a)(1)(G);
    (vi) A transaction, immediately after which one QOF owns an 
investment in another QOF; and
    (vii) A triangular reorganization of a QOF within the meaning of 
Sec.  1.358-6(b)(2)(i), (ii), or (iii).
    (39) Related persons. The term related when used with regard to 
persons and the term related persons means that there is a relationship 
described in section 267(b) or 707(b)(1), determined by substituting 
``20 percent'' for ``50 percent'' each place it occurs in such sections. 
The term unrelated when used

[[Page 1006]]

with regard to persons means that there is no relationship described in 
preceding sentence.
    (40) Remaining deferred gain. With respect to a qualifying 
investment, the term remaining deferred gain means the full amount of 
gain that was deferred under section 1400Z-2(a)(1)(A), reduced by the 
amount of gain previously included under Sec.  1.1400Z2(b)-1(b). After 
December 31, 2026, an eligible taxpayer's remaining deferred gain is $0.
    (41) Section 1400Z-2 regulations. The term section 1400Z-2 
regulations means the regulations in this chapter, which are prescribed 
in whole or in part under section 1400Z-2.
    (c) Operational and special rules--(1) Attributes of gains included 
in income under section 1400Z-2(a)(1)(B). If section 1400Z-2(a)(1)(B), 
section 1400Z-2(b), and the section 1400Z-2 regulations require a 
taxpayer to include in income some or all of a previously deferred gain, 
the rules of paragraphs (c)(1)(i) and (ii) of this section apply with 
respect to such gain.
    (i) Deferral year attributes. The gain so included per paragraph 
(c)(1) of this section has the same attributes in the taxable year of 
inclusion that the gain would have had if recognition of the gain had 
not been deferred under section 1400Z-2(a)(1)(A). These attributes 
include those taken into account by sections 1(h), 1222, 1231(b), 1256, 
and any other applicable provisions of the Code.
    (ii) Inclusion year treatment. The gain so included per paragraph 
(c)(1) of this section is subject to the same Federal income tax 
provisions and rates that would apply to any other gains that are 
realized and recognized at the same time as the included gain and that 
have the same attributes as the deferred gain. For example, when a 
deferred qualified 1231 gain, as defined in paragraph (b)(11)(iii) of 
this section, is required to be included in income, the included section 
1231 gain is treated as if it were a section 1231 gain (within the 
meaning of section 1231(a)(3)(A)) that was recognized on the date of 
inclusion.
    (iii) Rules for associating included gain with deferred gains--(A) 
In general. For purposes of paragraphs (c)(1)(i) and (ii) of this 
section, a taxpayer determines which previously deferred gain is 
associated with a qualifying investment in accordance with guidance 
published in the Internal Revenue Bulletin or in forms and instructions 
(see Sec. Sec.  601.601(d)(2) and 601.602 of this chapter). The rules of 
paragraphs (c)(1)(iii)(B) and (C) of this section apply only to the 
extent a deferred gain is not clearly associated with a particular 
qualifying investment under this paragraph (c)(1)(iii)(A).
    (B) Only one eligible gain associated with a deferral election. If 
only one eligible gain could have been deferred with respect to a 
qualifying investment, that deferred gain is associated with that 
qualifying investment. For example, if an eligible taxpayer makes a 
deferral election with respect to an investment in a QOF and only one 
eligible gain of the taxpayer satisfies the 180-day period with respect 
to the investment in the QOF, that eligible gain is the gain deferred 
with respect to the qualifying investment for purposes of paragraphs 
(c)(1)(i) and (ii) of this section.
    (C) Multiple eligible gains associated with a deferral election--(1) 
In general. If more than one eligible gain may have been deferred with 
respect to an investment in a QOF for which a deferral election has been 
made, then for purposes of paragraphs (c)(1)(i) and (ii) of this 
section, the eligible taxpayer is treated as making the investment in 
the QOF first with respect to the earliest realized eligible gain, 
followed by the next earliest eligible gain and any other eligible gains 
in order of the date of their realization.
    (2) Rule for gains realized on the same day. If in the application 
of paragraph (c)(1)(iii)(C)(1) of this section, two eligible gains are 
realized on the same day, such gains are allocated to the investment in 
the QOF proportionately.
    (2) Identification of which interest in a QOF corporation has been 
disposed of--(i) Need for identification. If a taxpayer holds shares of 
QOF stock with identical rights (fungible interests), and if the 
taxpayer disposes of less than all of the fungible interests, it is 
necessary to identify which interest or interests were disposed of. A 
taxpayer may effect this identification in accordance with the rules and 
principles of Sec.  1.1012-1(c).

[[Page 1007]]

Consistent with Sec.  1.1012-1(c), if a taxpayer does not adequately 
identify which of the fungible interests are disposed of, the first-in, 
first-out identification method (FIFO method) applies.
    (ii) Consequences of identification. The identification determines--
    (A) Whether an investment disposed of is a qualifying investment or 
a non-qualifying investment; and
    (B) In the case of qualifying investments--
    (1) The attributes of the gain addressed in paragraph (c)(1) of this 
section; and
    (2) The extent, if any, of an increase under section 1400Z-
2(b)(2)(B) in the basis of an investment interest that is disposed of.
    (3) Pro-rata method. If, after application of the FIFO method, a 
taxpayer is treated as having disposed of less than all of the 
investment interests that the taxpayer acquired on one day, and if the 
interests acquired on that day vary with respect to the characteristics 
described in paragraph (c)(2)(ii) of this section, then a proportionate 
allocation must be made to determine which interests were disposed of 
(pro-rata method).
    (4) Examples. The following examples illustrate the rules of 
paragraph (c)(1) through (3) of this section.
    (i) Example 1. Short-term gain. For 2018, taxpayer B properly made 
an election under section 1400Z-2 to defer $100 of eligible gain that, 
if not deferred, would have been recognized as short-term capital gain, 
as defined in section 1222(1). In 2022, sections 1400Z-2(a)(1)(B) and 
(b) require taxpayer B to include the gain in gross income. Under 
paragraph (c)(1) of this section, the gain included in 2022 is short-
term capital gain.
    (ii) Example 2. Collectibles gain. For 2018, taxpayer C properly 
made an election under section 1400Z-2 to defer a gain that, if not 
deferred, would have been collectibles gain as defined in section 
1(h)(5). In a later taxable year, section 1400Z-2(a)(1)(B) and (b) 
requires some or all of that deferred gain to be included in gross 
income. The gain included is collectibles gain.
    (iii) Example 3. Net capital gain from section 1256 contracts. For 
2019, taxpayer D had $100 of net capital gain realized from section 1256 
contracts that is eligible gain under paragraph (b)(11)(vi)(B) of this 
section. D timely invested $100 in a QOF and properly made an election 
under section 1400Z-2 to defer that $100 of gain. In 2023, section 
1400Z-2(a)(1)(B) and (b) requires D to include that deferred gain in 
gross income. Under paragraph (c)(1) of this section, the character of 
the inclusion is governed by section 1256(a)(3), which requires a 40:60 
split between short-term and long-term capital gain. Accordingly, $40 of 
the inclusion is short-term capital gain and $60 of the inclusion is 
long-term capital gain.
    (iv) Example 4. FIFO method. For 2018, taxpayer E properly made an 
election under section 1400Z-2 to defer $300 of short-term capital gain. 
For 2020, E properly made a second election under section 1400Z-2 to 
defer $200 of long-term capital gain. In both cases, E properly invested 
in QOF corporation Q the amount of the gain to be deferred, resulting in 
a total investment in Q of $500. The two investments are fungible 
interests and the price of the interests was the same at the time of the 
two investments. E did not purchase any additional interest in Q or sell 
any of its interest in Q until 2024, when E sold for a gain 60 percent 
of its interest in Q. E did not adequately identify which investment in 
QOF Q E sold. Under paragraph (c)(2)(i) of this section, E must apply 
the FIFO method to identify which investments in Q that E disposed of. 
60 percent of E's total investment in Q is $300 (60% x $500), thus under 
the FIFO method, E sold its entire 2018 initial investment of $300 in Q. 
Under section 1400Z-2(a)(1)(B) and (b), the sale triggered an inclusion 
of deferred gain. Because the inclusion has the same character as the 
gain that had been deferred, the inclusion is short-term capital gain.
    (v) Example 5. FIFO method. In 2018, before Corporation R became a 
QOF, Taxpayer F invested $100 to R in exchange for 100 R common shares. 
Later in 2018, after R was a QOF, F invested $500 to R in exchange for 
400 R common shares and properly elected under section 1400Z-2 to defer 
$500 of realized short-term capital gain from a separate investment. 
Even later in 2018, on different days, F realized $300 of short-

[[Page 1008]]

term capital gain and $700 of long-term capital gain. On a single day 
that fell during the 180-day period for both of those gains, F invested 
$1,000 in R in exchange for 800 R common shares and properly elected 
under section 1400Z-2 to defer the two gains. In 2020, F sold 100 R 
common shares. F did not adequately identify which investment in R F 
sold. Under paragraph (c)(2)(i) of this section, F must apply the FIFO 
method to identify which investments in R F disposed of. As determined 
by that identification, F sold the initially acquired 100 R common 
shares, which were not part of a deferral election under section 1400Z-
2. R must recognize gain or loss on the sale of its R shares under the 
generally applicable Federal income tax rules, but the sale does not 
trigger an inclusion of any deferred gain.
    (vi) Example 6. FIFO method. The facts are the same as in paragraph 
(c)(4)(v) of this section (Example 5), except that, in addition, during 
2021 F sold an additional 400 R common shares, and, as with the other 
sale, F did not adequately identify which investment in QOF R F sold. 
Under paragraph (c)(2)(i) of this section, F must apply the FIFO method 
to identify which investments in R were disposed of. As determined by 
this identification, F sold the 400 common shares which were associated 
with the deferral of $500 of short-term capital gain. Thus, the deferred 
gain that must be included upon sale of the 400 R common shares is 
short-term capital gain.
    (vii) Example 7. Pro-rata method. The facts are the same as in 
examples 5 and 6, except that, in addition, during 2022 F sold an 
additional 400 R common shares. Under paragraph (c)(2)(i) of this 
section, F must apply the FIFO method to identify which investments in R 
were disposed of. In 2022, F is treated as holding only the 800 R common 
shares purchased on a single day, and the section 1400Z-2 deferral 
election associated with these shares applies to gain with different 
characteristics (described in paragraph (c)(2)(ii) of this section). 
Under paragraph (c)(3) of this section, therefore, R must use the pro-
rata method to determine which of the characteristics pertain to the 
deferred gain required to be included as a result of the sale of the 400 
R common shares. Under the pro-rata method, $150 of the inclusion is 
short-term capital gain ($300 x 400/800) and $350 is long-term capital 
gain ($700 x 400/800).
    (5) Making an investment for purposes of an election under section 
1400Z-2(a)--(i) Transfer of cash or other property to a QOF. A taxpayer 
makes an investment in a QOF by transferring cash or other property to a 
QOF in exchange for eligible interests in the QOF, regardless of whether 
the transfer is one in which the transferor would recognize gain or loss 
on the property transferred.
    (ii) Furnishing services. Rendering services to a QOF is not a 
transfer of cash or other property to a QOF. Thus, if a taxpayer 
receives an eligible interest in a QOF for services rendered to the QOF 
or to a person in which the QOF holds any direct or indirect equity 
interest, then the interest in the QOF that the taxpayer receives is a 
non-qualifying investment.
    (iii) Acquisition of eligible interest from person other than QOF. 
An eligible taxpayer may make an investment in a QOF by acquiring an 
eligible interest in a QOF from a person other than the QOF, provided 
that all of the requirements of section 1400Z-2(a)(1) and the section 
1400Z-2 regulations for making a valid deferral election with respect to 
that investment are otherwise satisfied with respect to such 
acquisition. For example, an eligible taxpayer who acquires an eligible 
interest in a QOF other than from the QOF also must have an eligible 
gain within the 180-day period prior to the eligible taxpayer's 
acquisition of the eligible interest in the QOF.
    (6) Amount invested for purposes of section 1400Z-2(a)(1)(A)--(i) In 
general. In the case of any investments described in this paragraph 
(c)(6), the amount of a taxpayer's qualifying investment cannot exceed 
the amount of eligible gain to be deferred under the deferral election. 
If the amount of an otherwise qualifying investment exceeds the amount 
of eligible gain to be deferred under the deferral election, the amount 
of the excess is treated as a non-qualifying investment. See paragraph 
(c)(6)(iii) of this section for special rules applicable to transfers to 
QOF partnerships.

[[Page 1009]]

    (ii) Transfers to a QOF--(A) Cash. If a taxpayer makes an investment 
in a QOF by transferring cash to a QOF, the amount of the taxpayer's 
investment is that amount of cash.
    (B) Property other than cash--Nonrecognition transactions. This 
paragraph (c)(6)(ii)(B) applies if a taxpayer makes an investment in a 
QOF by transferring property other than cash to a QOF and if, but for 
the application of section 1400Z-2(b)(2)(B) and the section 1400Z-2 
regulations, the taxpayer's basis in the resulting investment in the QOF 
would be determined, in whole or in part, by reference to the taxpayer's 
basis in the transferred property. This paragraph (c)(6)(ii)(B) applies 
separately to each item of property transferred to a QOF.
    (1) Amount of qualifying investment. If paragraph (c)(6)(ii)(B) of 
this section applies, the amount of the taxpayer's qualifying investment 
is the lesser of the taxpayer's adjusted basis in the eligible interest 
received in the transaction, without regard to section 1400Z-2(b)(2)(B) 
and the section 1400Z-2 regulations, or the fair market value of the 
eligible interest received in the transaction, both determined 
immediately after the transfer.
    (2) Fair market value of the eligible interest received exceeds its 
adjusted basis. If paragraph (c)(6)(ii)(B) of this section applies, and 
if the fair market value of the eligible interest received is in excess 
of the eligible taxpayer's adjusted basis in the eligible interest 
received, without regard to section 1400Z-2(b)(2)(B) and the section 
1400Z-2 regulations, then the eligible taxpayer's investment in a QOF is 
a mixed-funds investment to which section 1400Z-2(e)(1) applies. In such 
a case, an amount equal to the adjusted basis of the eligible interest 
in the hands of the eligible taxpayer is the eligible taxpayer's 
qualifying investment, and the excess is the eligible taxpayer's non-
qualifying investment.
    (3) Transfer of built-in loss property and section 362(e)(2). If 
paragraph (c)(6)(ii)(B) of this section and section 362(e)(2) both apply 
to a transaction, the eligible taxpayer and the QOF are deemed to have 
made an election under section 362(e)(2)(C).
    (C) Property other than cash--Taxable transactions. This paragraph 
(c)(6)(ii)(C) applies if an eligible taxpayer makes an investment in a 
QOF by transferring property other than cash to a QOF and if, without 
regard to section 1400Z-2(b)(2)(B) and the section 1400Z-2 regulations, 
the eligible taxpayer's basis in the eligible interest received would 
not be determined, in whole or in part, by reference to the eligible 
taxpayer's basis in the transferred property. If this paragraph 
(c)(6)(ii)(C) applies, the amount of the eligible taxpayer's investment 
in a QOF is the fair market value of the transferred property, as 
determined immediately before the transfer. This paragraph (c)(6)(ii)(C) 
applies separately to each item of property transferred to a QOF.
    (D) Basis in a mixed-funds investment. If a taxpayer's investment in 
a QOF is a mixed-funds investment to which section 1400Z-2(e)(1) 
applies, the taxpayer's basis in the non-qualifying investment is equal 
to the taxpayer's basis in all of the eligible interests received, 
determined without regard to section 1400Z-2(b)(2)(B) and the section 
1400Z-2 regulations, and reduced by the basis of the taxpayer's 
qualifying investment, determined without regard to section 1400Z-
2(b)(2)(B) and the section 1400Z-2 regulations.
    (iii) Special rules for transfers to QOF partnerships. In the case 
of an investment in a QOF partnership, the following rules apply:
    (A) Amounts not treated as a qualifying investment--(1) Non-
contributions in general. To the extent the transfer of property to a 
QOF partnership is characterized other than as a contribution, such as 
characterization as a sale under section 707 and the regulations in this 
part under section 707 of the Code, the transfer is not treated as being 
made in exchange for a qualifying investment.
    (2) Reductions in investments otherwise treated as contributions. If 
any transfer of cash or other property to a partnership is not treated 
as a contribution, in whole or in part, under paragraph 
(c)(6)(iii)(A)(1) of this section, the part of the transfer to the 
partnership that is not disregarded is not a qualifying investment to 
the extent the partnership makes a distribution to the partner and the 
transfer to the partnership and the distribution would be 
recharacterized as a disguised sale under

[[Page 1010]]

section 707 and the regulations in this part under section 707 of the 
Code if:
    (i) Any cash contributed were non-cash property; and
    (ii) In the case of a distribution by the partnership to which Sec.  
1.707-5(b) (relating to debt-financed distributions) applies, the 
partner's share of liabilities is zero.
    (B) Amount invested in a QOF partnership--(1) Calculation of amount 
of qualifying and non-qualifying investments. To the extent paragraph 
(c)(6)(iii)(A) of this section does not apply, the amount of equity 
received by an eligible taxpayer in a QOF partnership in exchange for 
the lesser of the net basis or net value of the property contributed to 
the QOF partnership by the eligible taxpayer is a qualifying investment. 
The amount of equity received by an eligible taxpayer in a QOF 
partnership that is a non-qualifying investment is the excess, if any, 
of the total equity received by the eligible taxpayer over the amount 
treated as a qualifying investment.
    (2) Net basis. For purposes of paragraph (c)(6)(iii)(B) of this 
section, net basis is the excess, if any, of--
    (i) The adjusted basis of the property contributed to the 
partnership; over
    (ii) The amount of any debt to which the property is subject or that 
is assumed by the partnership in the transaction.
    (3) Net value. For purposes of paragraph (c)(6)(iii)(B) of this 
section, net value is the excess of--
    (i) The gross fair market value of the property contributed to the 
partnership; over
    (ii) The amount of the debt described in paragraph 
(c)(6)(iii)(B)(2)(ii) of this section.
    (4) Basis of qualifying and non-qualifying investments. The initial 
basis of a qualifying investment, before application of section 1400Z-
2(b)(2)(B) and the section 1400Z-2 regulations or any section 752 debt 
allocation, is the net basis of the property contributed. The basis of a 
non-qualifying investment, before any section 752 debt allocation, is 
the remaining net basis. The basis of the qualifying investment is 
adjusted as provided in section 1400Z-2(b)(2)(B) and the section 1400Z-2 
regulations. The bases of qualifying and non-qualifying investments are 
increased by any debt allocated to those investments under the rules of 
Sec.  1.1400Z2(b)-1(c)(6)(iv)(B).
    (5) Rules applicable to mixed-funds investments. If one portion of 
an investment in a QOF partnership is a qualifying investment and 
another portion is a non-qualifying investment, see Sec.  1.1400Z2(b)-
1(c)(6)(iv) for the rules that apply.
    (iv) Acquisitions from another person. An eligible taxpayer may make 
an investment in a QOF by acquiring in a sale or exchange to which Sec.  
1.1001-1(a) applies an eligible interest in a QOF from a person other 
than the QOF. The amount of the eligible taxpayer's investment in the 
QOF with respect to which the eligible taxpayer may make a deferral 
election is the amount of the cash, or the net fair market value of the 
other property, as determined immediately before the exchange, that the 
eligible taxpayer exchanged for the eligible interest in the QOF.
    (v) Examples. The following examples illustrate the rules of this 
paragraph (c)(6).
    (A) Example 1. Transfer of built-in gain property with basis less 
than gain to be deferred--(1) Facts. Individual B realizes $100 of 
eligible gain within the meaning of paragraph (b)(11) of this section. B 
transfers unencumbered property with a fair market value of $100 and an 
adjusted basis of $60 to QOF Q, a C corporation, in a transaction that 
is described in section 351(a).
    (2) Analysis. Paragraph (c)(6)(ii)(B) of this section applies 
because B transferred property other than cash to Q and, but for the 
application of section 1400Z-2(b)(2)(B), B's basis in the eligible 
interests in Q would be determined, in whole or in part, by reference to 
B's basis in the transferred property. The fair market value of the 
eligible interest B received is $100, and, without regard to section 
1400Z-2(b)(2)(B), B's basis in the eligible interest received would be 
$60. Thus, pursuant to paragraph (c)(6)(ii)(B)(2) of this section, B's 
investment is a mixed-funds investment to which section 1400Z-2(e)(1) 
applies. Pursuant to paragraphs (c)(6)(ii)(B)(1) and (2) of this 
section, B's qualifying investment is $60 (the lesser of the taxpayer's 
adjusted basis in the eligible interest, without regard

[[Page 1011]]

to section 1400Z-2(b)(2)(B), of $60 and the $100 fair market value of 
the eligible interest received). Pursuant to section 1400Z-
2(b)(2)(B)(i), B's basis in the qualifying investment is $0. 
Additionally, B's non-qualifying investment is $40 (the excess of the 
fair market value of the eligible interest received ($100) over the 
taxpayer's adjusted basis in the eligible interest, without regard to 
section 1400Z-2(b)(2)(B) ($60)). B's basis in the non-qualifying 
investment is $0 (B's $60 basis in its investment determined without 
regard to section 1400Z-2(b)(2)(B), reduced by the $60 of adjusted basis 
allocated to the investment to which section 1400Z-2(e)(1)(A)(i) 
applies, determined without regard to section 1400Z-2(b)(2)(B)). See 
paragraph (c)(6)(ii)(D) of this section. Pursuant to section 362, Q's 
basis in the transferred property is $60.
    (B) Example 2. Transfer of built-in gain property with basis in 
excess of eligible gain to be deferred. The facts are the same as in 
paragraph (c)(6)(v)(A)(1) of this section (Example 1), except that B 
realizes $50 of eligible gain within the meaning of paragraph (b)(11) of 
this section. Pursuant to paragraph (c)(6)(i) of this section, B's 
qualifying investment cannot exceed the amount of eligible gain to be 
deferred (that is, the $50 of eligible gain) under the section 1400Z-
2(a) election. Therefore, pursuant to paragraph (c)(6)(ii)(B)(1) of this 
section, B's qualifying investment is $50 (the lesser of the taxpayer's 
adjusted basis in the eligible interest received, without regard to 
section 1400Z-2(b)(2)(B), of $60 and the $100 fair market value of the 
eligible interest, limited by the amount of eligible gain to be deferred 
under the section 1400Z-2(a) election). B's qualifying investment has an 
adjusted basis of $0, as provided in section 1400Z-2(b)(2)(B)(i). 
Additionally, B's non-qualifying investment is $50 (the excess of the 
fair market value of the eligible interest received ($100) over the 
amount ($50) of B's section 1400Z-2(a)(1)(A) investment). B's basis in 
the non-qualifying investment is $10 (B's $60 basis in its investment 
determined without regard to section 1400Z-2(b)(2)(B)), reduced by the 
$50 of adjusted basis allocated to B's qualifying investment, determined 
without regard to section 1400Z-2(b)(2)(B).
    (C) Example 3. Transfers to QOF partnerships--(1) Facts. A and B 
each realized $100 of eligible gain and each transfers $100 to a QOF 
partnership. In a subsequent year, the partnership borrows $120 from an 
unrelated lender and distributes $120 equally to A and B.
    (2) Analysis. If the contributions had been of property other than 
cash, the contributions and distributions would have been tested under 
the disguised sale rules of section 707 and the regulations in this part 
under section 707 of the Code, determining the timing of the 
distribution and amount of the debt allocated to each partner. Under 
paragraph (c)(6)(iii)(A)(2) of this section, the cash of $200 ($100 from 
A and $100 from B) is treated as property that could be sold in a 
disguised sale transaction and each partner's share of the debt is zero 
for purposes of determining the amount of the qualifying investment. To 
the extent there would have been a disguised sale applying the rule of 
paragraph (c)(6)(iii)(A)(2) of this section, the amount of the 
qualifying investment would be reduced by the amount of the contribution 
so recharacterized.
    (D) Example 4. Return of capital by QOF partnership--(1) Facts. A 
realized $100 of eligible gain and transfers $100 of cash to a QOF 
partnership. Later in the partner's tax year, the partnership 
distributes $20 to A in a distribution that is not recharacterized under 
paragraph (c)(6)(iii)(A)(2) of this section. At the time of the 
distribution, no allocations of income, gain, loss, or deduction had 
been made to A, and A's share of the partnership's debt was zero under 
section 752.
    (2) Analysis. Because the contribution and distribution are not 
recharacterized under paragraph (c)(6)(iii)(A)(2) of this section, the 
amount of A's qualifying investment is $100 despite the $20 
distribution. At the time the $20 distribution is made to A, A's basis 
in its qualifying investment is zero, and thus the distribution is an 
inclusion event under Sec.  1.1400Z2(b)-1(c)(6)(iii).
    (E) Example 5. Property contributed has built-in gain. The facts are 
the same as in paragraph (c)(6)(v)(C)(1) of this section (Example 3), 
except that the property contributed by A had a value of

[[Page 1012]]

$100 and basis of $20 and the partnership did not borrow money or make a 
distribution. Under paragraph (c)(6)(iii)(B)(1) of this section, the 
amount of A's qualifying investment is $20 (the lesser of the net value 
or the net basis of the property that A contributed), and the excess of 
the $100 contribution over the $20 qualifying investment is a non-
qualifying investment. Under paragraph (c)(6)(iii)(B)(4) of this 
section, A's basis in the qualifying investment (determined without 
regard to section 1400Z-2(b)(2)(B) or section 752(a)) is $20. After the 
application of section 1400Z-2(b)(2)(B) but before the application of 
section 752(a), A's basis in the qualifying investment is zero. A's 
basis in the non-qualifying investment is zero without regard to the 
application of section 752(a).
    (F) Example 6. Property contributed has built-in gain and is subject 
to debt. The facts are the same as in paragraph (c)(6)(v)(E) of this 
section (Example 5), except that the property contributed by A has a 
gross value of $130 and is subject to debt of $30. Under paragraph 
(c)(6)(iii)(B)(1) of this section, the amount of A's qualifying 
investment is zero, the lesser of the property's $100 net value ($130 
minus $30) or $0 net basis ($20 minus $30, but limited to zero). The 
entire contribution constitutes a non-qualifying investment.
    (G) Example 7. Property contributed has built-in loss and is subject 
to debt. The facts are the same as in paragraph (c)(6)(v)(F) of this 
section (Example 6), except that the property contributed by A has a 
basis of $150. Under paragraph (c)(6)(iii)(B)(1) of this section, the 
amount of A's qualifying investment is $100, the lesser of the 
property's $100 net value ($130 minus $30) or $120 net basis ($150 minus 
$30). The non-qualifying investment is $0, the excess of the net value 
($100) over the qualifying investment ($100). A's basis in the 
qualifying investment (determined without regard to section 1400Z-
2(b)(2)(B) and section 752(a)) is $120, the net basis. After the 
application of section 1400Z-2(b)(2)(B), A's basis in the qualifying 
investment is zero, plus its share of partnership debt under section 
752(a).
    (7) Eligible gains that a partnership elects to defer. A partnership 
generally is an eligible taxpayer under paragraph (b)(13) of this 
section and may elect to defer recognition of some or all of its 
eligible gains under section 1400Z-2(a)(2) and the section 1400Z-2 
regulations.
    (i) Partnership deferral election. If a partnership properly makes a 
deferral election, then--
    (A) The partnership defers recognition of the eligible gain under 
the rules of section 1400Z-2 and the section 1400Z-2 regulations, that 
is, the partnership does not recognize gain at the time it otherwise 
would have in the absence of the deferral election; and
    (B) The deferred eligible gain is not included in the distributive 
shares of the partners under section 702 and is not treated as an item 
described in section 705(a)(1).
    (ii) Subsequent recognition. Absent any additional deferral under 
section 1400Z-2(a)(1)(A) and the section 1400Z-2 regulations, any amount 
of deferred gain that an electing partnership subsequently must include 
in income under sections 1400Z-2(a)(1)(B) and (b) and the section 1400Z-
2 regulations is recognized by the electing partnership at the time of 
inclusion, is subject to section 702 and is treated as an item described 
in section 705(a)(1) in a manner consistent with recognition at that 
time.
    (8) Eligible gains that the partnership does not defer--(i) Federal 
income tax treatment of the partnership. If a partnership does not elect 
to defer some, or all, of its eligible gains, the partnership's 
treatment of any such amounts is unaffected by the fact that the 
eligible gains could have been deferred under section 1400Z-2 and the 
section 1400Z-2 regulations.
    (ii) Federal income tax treatment by the partners. If a partnership 
does not elect to defer some, or all, of the eligible gains--
    (A) The gains for which a deferral election are not made are 
included in the partners' distributive shares under section 702 and are 
treated as items described in section 705(a)(1);
    (B) If a partner's distributive share includes one or more gains 
that are eligible gains with respect to the partner, the partner may 
elect under section 1400Z-2(a)(1)(A) and the section 1400Z-2

[[Page 1013]]

regulations to defer some or all of such eligible gains; and
    (C) A gain in a partner's distributive share is an eligible gain 
with respect to the partner only if it is an eligible gain with respect 
to the partnership and it did not arise from a sale or exchange with a 
person that, within the meaning of section 1400Z-2(e)(2) and the section 
1400Z-2 regulations, is related to the partner.
    (iii) 180-day period for a partner electing deferral--(A) General 
rule. If a partner's distributive share includes a gain that is 
described in paragraph (c)(8)(ii)(C) of this section (gains that are 
eligible gains with respect to the partner), the 180-day period with 
respect to the partner's eligible gains in the partner's distributive 
share generally begins on the last day of the partnership taxable year 
in which the partner's distributive share of the partnership's eligible 
gain is taken into account under section 706(a).
    (B) Elective rule. Notwithstanding the general rule in paragraph 
(c)(8)(iii)(A) of this section, if a partnership does not elect to defer 
all of its eligible gain, the partner may elect to treat the partner's 
own 180-day period with respect to the partner's distributive share of 
that gain as being--
    (1) The same as the partnership's 180-day period; or
    (2) The 180-day period beginning on the due date for the 
partnership's tax return, without extensions, for the taxable year in 
which the partnership realized the gain that is described in paragraph 
(c)(8)(ii)(C) of this section.
    (C) Example. The following example illustrates the principles of 
this paragraph (c)(8)(iii).
    (1) Facts. Four individuals, A, B, C, and D, have equal interests in 
a partnership, P. P has no other partners, and P's taxable year is the 
calendar year. On January 17, 2019, P realizes a capital gain of $1000x 
that P decides not to elect to defer.
    (2) Analysis of A's election. A is aware of the capital gain 
realized by P, and decides to defer its distributive shares of P's 
eligible gain. A invests $250x in a QOF during February 2020. Under the 
general rule in paragraph (c)(8)(iii)(A) of this section, this 
investment is within the 180-day period for A, which began on December 
31, 2019, the last day of P's taxable year in which A's share of P's 
eligible gain is taken into account under section 706(a).
    (3) Analysis of B's election. B is also aware of the capital gain 
realized by P, and decides to defer its distributive shares of P's 
eligible gain. B decides to make the election provided in paragraph 
(c)(8)(iii)(B)(1) of this section, and invests $250x in a QOF during 
February 2019. Under the elective rule in paragraph (c)(8)(iii)(B)(1) of 
this section, this investment is within the 180-day period for B, which 
began on January 17, 2019, the same day as P's 180-day period.
    (4) Analysis of C's election. On March 15, 2020, P provides all of 
its partners with their Schedules K-1. Upon learning that its 
distributive share of income from P included eligible gain, C decides to 
make a deferral election, and also makes the election provided in 
paragraph (c)(8)(iii)(B)(2) of this section. It then invests $250x in a 
QOF during June 2020. Under the elective rule in paragraph 
(c)(8)(iii)(B)(2) of this section, this investment is within the 180-day 
period for C, which began on March 15, 2020, the 180-day period 
beginning on the due date for P's tax return without extensions, for the 
taxable year in which P realized eligible gain.
    (9) Passthrough entities other than partnerships--(i) S 
corporations, nongrantor trusts, and estates. If an S corporation, a 
nongrantor trust, or a decedent's estate realizes an eligible gain, then 
rules analogous to the rules of paragraphs (c)(7) and (8) of this 
section apply to that entity and to its shareholders or its 
beneficiaries, as the case may be, to the extent they receive or are 
deemed to receive an allocable share of the eligible gain.
    (ii) Grantor trusts. If a grantor trust realizes an eligible gain, 
either the trust or the deemed owner of the trust may make the election 
to defer recognition of the gain and make the qualifying investment 
under rules analogous to the rules of paragraphs (c)(7) and (8) of this 
section (other than the rule in paragraph (c)(8)(iii) of this section 
regarding the 180-day period), whether or not the gain is distributed to 
the deemed owner of the trust.

[[Page 1014]]

    (d) Elections--(1) Taxable year of deferral election. For a deferral 
election with respect to any eligible gain to be valid, an eligible 
taxpayer must make such election in accordance with guidance published 
in the Internal Revenue Bulletin or in forms and instructions (see 
Sec. Sec.  601.601(d)(2) and 601.602 of this chapter), as to the 
required time, form, and manner in which an eligible taxpayer (including 
a partner, S corporation shareholder, or beneficiary applying the 
elective 180-day period provided in paragraphs (c)(8)(iii)(B) and (c)(9) 
of this section) may make a deferral election.
    (2) Annual reporting of qualifying investments. An eligible taxpayer 
must report any qualifying investment held at any point during the 
taxable year in accordance with guidance published in the Internal 
Revenue Bulletin or in forms and instructions (see Sec. Sec.  
601.601(d)(2) and 601.602 of this chapter). A failure to make this 
report for any given taxable year will result in a rebuttable 
presumption that the taxpayer has had an inclusion event described in 
Sec.  1.1400Z2(b)-1(c) during that year. The presumption described in 
the previous sentence may be rebutted by the taxpayer making the report 
described in the first sentence of this paragraph (d)(2) or by the 
taxpayer establishing to the satisfaction of the Commissioner that an 
inclusion event described in Sec.  1.1400Z2(b)-1(c) did not occur during 
that taxable year.
    (e) Interaction of section 1400Z-2 and Sec.  1.897-6T. Section 
1400Z-2 is not a nonrecognition provision, as defined in Sec.  1.897-
6T(a)(2), for purposes of Sec.  1.897-6T.
    (f) Treatment of mixed-funds investments--(1) Investments to which 
no election under section 1400Z-2(a) applies. If a taxpayer invests in a 
QOF and makes a deferral election with respect to less than all of that 
investment, the portion of the investment to which the election does not 
apply is a non-qualifying investment. Similarly, an investment in a QOF 
with respect to which no deferral election is made is a non-qualifying 
investment.
    (2) Treatment of deemed contributions of money under section 752(a). 
In the case of a QOF partnership, the deemed contribution of money 
described in section 752(a) does not create or increase an investment in 
the QOF described in section 1400Z-2(e)(1)(A)(ii). Thus, any basis 
increase resulting from a deemed section 752(a) contribution is not 
taken into account in determining the portion of a partner's investment 
subject to section 1400Z-2(e)(1)(A)(i) or (ii). See Sec.  1.1400Z2(b)-
1(c)(6)(iv)(B) for rules relating to the application of section 752 to a 
mixed-funds investment.
    (3) Treatment of contributions to QOF corporation in which no stock 
is received. If a taxpayer with a qualifying investment or a non-
qualifying investment in a QOF corporation subsequently makes a non-
qualifying investment or a qualifying investment, respectively, and if 
the taxpayer receives no additional QOF stock in exchange for the 
subsequent investment, the taxpayer has a mixed-funds investment.
    (4) Example. The following example illustrates the rules of this 
paragraph (f):
    (i) Facts. Taxpayer A realizes $1 million of eligible gain and on 
the next day contributes $1 million to a QOF, Partnership P, in exchange 
for a 50 percent interest in Partnership P. Taxpayer A makes an election 
under section 1400Z-2(a) with respect to $900,000 of that eligible gain. 
Under section 1400Z-2(e)(1), 90 percent of A's investment is described 
in section 1400Z-2(e)(1)(A)(i) (an investment that only includes amounts 
to which the election under section 1400Z-2(a) applies), and 10 percent 
is described in section 1400Z-2(e)(1)(A)(ii) (a separate investment 
consisting of other amounts). Partnership P borrows $8 million. Under 
Sec.  1.752-3(a), taking into account the terms of the partnership 
agreement, $4 million of the $8 million liability is allocated to A.
    (ii) Analysis. Under section 752(a), A is treated as contributing $4 
million to Partnership P. Under paragraph (f) of this section, A's 
deemed $4 million contribution to Partnership P is ignored for purposes 
of determining the percentage of A's investment in Partnership P subject 
to the deferral election under section 1400Z-2(a) or the portion not 
subject to the deferral election under section 1400Z-2(a). As a result, 
after A's section 752(a) deemed contribution, $900,000, or 90 percent, 
of A's

[[Page 1015]]

investment in Partnership P is described in section 1400Z-2(e)(1)(A)(i) 
and $100,000, or 10 percent, is described in section 1400Z-
2(e)(1)(A)(ii).
    (g) Applicability dates-(1) In general. The provisions of this 
section are applicable for taxable years beginning after March 13, 2020.
    (2) Prior periods. With respect to eligible gains that would be 
recognized (absent the making of a deferral election) during the portion 
of a taxpayer's first taxable year ending after December 21, 2017, and 
during taxable years beginning after December 21, 2017, and on or before 
March 13, 2020, a taxpayer may choose either--
    (i) To apply the section 1400Z-2 regulations, if applied in a 
consistent manner for all such taxable years (reliance by a taxpayer 
under paragraph (g)(2)(ii) of this section, Sec.  1.1400Z2(b)-
1(j)(2)(ii), Sec.  1.1400Z2(d)-1(e)(2)(ii), Sec.  1.1400Z2(d)-
2(e)(2)(ii), or Sec.  1.1400Z2(f)-1(d)(2)(ii), is disregarded solely for 
purposes of the consistency requirement under this paragraph (g)(2)(i)); 
or
    (ii) To rely on the rules in proposed Sec.  1.1400Z2(a)-1 contained 
in the notice of proposed rulemaking (REG-115420-18) published on 
October 29, 2018, as amplified by the notice of proposed rulemaking 
(REG-120186-18) published on May 1, 2019, but only if applied in a 
consistent manner for all such taxable years.

[T.D. 9889, 85 FR 1954, Jan. 13, 2020; 85 FR 19083, Apr. 6, 2020]



Sec.  1.1400Z2(b)-1  Inclusion of gains that have been deferred 
under section 1400Z-2(a).

    (a) Scope. This section provides rules under section 1400Z-2(b) of 
the Internal Revenue Code and the section 1400Z-2 regulations (as 
defined in Sec.  1.1400Z2(a)-1(b)(41)) regarding the inclusion in income 
of gain deferred by a QOF owner under section 1400Z-2(a)(1)(A) and the 
section 1400Z-2 regulations. This section applies to a QOF owner only 
until all of such owner's gain deferred pursuant to a deferral election 
has been included in income, subject to the limitations described in 
paragraph (e)(5) of this section, and except as otherwise provided in 
paragraph (c) or (d) of this section. Paragraph (b) of this section 
provides general rules under section 1400Z-2(b)(1) regarding the timing 
of the inclusion in income of the deferred gain. Paragraph (c)(1) of 
this section provides the general rule regarding the determination of 
the extent to which an event triggers the inclusion in gross income of 
all, or a portion, of an eligible taxpayer's deferred gain, and 
paragraphs (c)(2) through (16) of this section provide specific rules 
for certain events that are or are not treated as inclusion events. 
Paragraph (d) of this section provides rules regarding holding periods 
for qualifying investments. Paragraph (e) of this section provides rules 
regarding the amount of deferred gain included in gross income under 
section 1400Z-2(a)(1)(B) and (b), including special rules for QOF 
partnerships and QOF S corporations. Paragraph (f) of this section 
provides examples illustrating the rules of paragraphs (c), (d), and (e) 
of this section. Paragraph (g) of this section provides rules regarding 
basis adjustments under section 1400Z-2(b)(2)(B). Paragraph (h) of this 
section provides special reporting rules applicable to partners, 
partnerships, and direct or indirect owners of QOF partnerships. 
Paragraph (i) is reserved. Paragraph (j) of this section provides dates 
of applicability.
    (b) General inclusion rule. The gain to which a deferral election 
applies is included in gross income, to the extent provided in paragraph 
(e) of this section and in accordance with the rules of Sec.  
1.1400Z2(a)-1(c)(1), in the taxable year that includes the earlier of:
    (1) The date of an inclusion event; or
    (2) December 31, 2026.
    (c) Inclusion events--(1) In general. Except as otherwise provided 
in this paragraph (c), an event is an inclusion event, if, and to the 
extent that--
    (i) The event reduces an eligible taxpayer's direct equity interest 
for Federal income tax purposes in the qualifying investment;
    (ii) An eligible taxpayer receives property in the event with 
respect to its qualifying investment and the event is treated as a 
distribution for Federal income tax purposes, whether or not the receipt 
reduces the eligible taxpayer's ownership of the QOF;
    (iii) An eligible taxpayer claims a loss for worthless stock under 
section

[[Page 1016]]

165(g) or otherwise claims a worthlessness deduction with respect to its 
qualifying investment; or
    (iv) A QOF in which an eligible taxpayer holds a qualifying 
investment loses its status as a QOF.
    (2) Termination or liquidation of QOF or QOF owner--(i) Termination 
or liquidation of QOF. Except as otherwise provided in this paragraph 
(c), an eligible taxpayer has an inclusion event with respect to all of 
its qualifying investment if the QOF ceases to exist for Federal income 
tax purposes. For example, if a QOF partnership converts to a QOF C 
corporation, or if a QOF C corporation converts to a QOF partnership or 
to an entity disregarded as separate from its owner for Federal income 
tax purposes, all investors in the QOF have an inclusion event with 
respect to all of their qualifying investments in the QOF.
    (ii) Liquidation of QOF owner--(A) Portion of distribution treated 
as sale. A distribution of a qualifying investment in a complete 
liquidation of a QOF owner is an inclusion event to the extent that 
section 336(a) treats the distribution as if the qualifying investment 
were sold to the distributee at its fair market value, without regard to 
section 336(d).
    (B) Distribution to 80-percent distributee. A distribution of a 
qualifying investment in a complete liquidation of a QOF owner is not an 
inclusion event to the extent section 337(a) applies to the 
distribution.
    (3) Transfer of an investment in a QOF by gift or incident to 
divorce--(i) Transfer of an investment in a QOF by gift. Except to the 
extent provided in paragraph (c)(5) of this section, a taxpayer's 
transfer of a qualifying investment by gift, as defined for purposes of 
chapter 12 of subtitle B of the Code, whether outright or in trust, is 
an inclusion event, regardless of whether that transfer is a completed 
gift for Federal gift tax purposes, and regardless of the taxable or 
tax-exempt status of the donee of the gift.
    (ii) Transfers between spouses incident to divorce. A transfer 
between spouses or incident to divorce or otherwise as provided in 
section 1041 of the Code is an inclusion event.
    (4) Transfer of an investment in a QOF by reason of the taxpayer's 
death--(i) In general. Except as provided in paragraph (c)(4)(ii) of 
this section, a transfer of a qualifying investment by reason of the 
taxpayer's death is not an inclusion event. Transfers by reason of death 
include, for example:
    (A) A transfer by reason of death to the deceased owner's estate;
    (B) A distribution of a qualifying investment by the deceased 
owner's estate;
    (C) A distribution of a qualifying investment by the deceased 
owner's trust that is made by reason of the deceased owner's death;
    (D) The passing of a jointly owned qualifying investment to the 
surviving co-owner by operation of law; and
    (E) Any other transfer of a qualifying investment at death by 
operation of law.
    (ii) Exceptions. The following transfers are not included as a 
transfer by reason of the taxpayer's death, and thus are inclusion 
events:
    (A) A sale, exchange, or other disposition by the deceased 
taxpayer's estate or trust, other than a distribution described in 
paragraph (c)(4)(i) of this section;
    (B) Any disposition by the legatee, heir, or beneficiary who 
received the qualifying investment by reason of the taxpayer's death; 
and
    (C) Any disposition by the surviving joint owner or other recipient 
who received the qualifying investment by operation of law on the 
taxpayer's death.
    (iii) Liability for deferred Federal income tax. If the owner of a 
qualifying investment in a QOF dies before an inclusion event and the 
deferred gain is not includable in the decedent's gross income, the gain 
that the decedent elected to defer under section 1400Z-2(a) and the 
section 1400Z-2 regulations will be includable in the gross income, for 
the taxable year in which occurs an inclusion event, of the person 
described in section 691(a)(1).
    (iv) Qualifying investment in the hands of the person described in 
section 691(a)(1). A qualifying investment received in a transfer by 
reason of death

[[Page 1017]]

listed in paragraph (c)(4)(i) of this section continues to be a 
qualifying investment under Sec.  1.1400Z2(a)-1(b)(34).
    (5) Grantor trusts--(i) Contributions to grantor trusts. If the 
owner of a qualifying investment contributes it to a trust and, under 
subpart E of part I of subchapter J of chapter 1 of subtitle A of the 
Code (grantor trust rules), the contributing owner of the investment is 
the deemed owner of the trust (grantor trust), the contribution to the 
grantor trust is not an inclusion event. Similarly, a transfer of the 
investment by the grantor trust to the trust's deemed owner is not an 
inclusion event. For all purposes of the section 1400Z-2 regulations, 
references to the term grantor trust mean the portion of the trust that 
holds the qualifying investment in the QOF, and such a grantor trust, or 
portion of the trust, is a wholly grantor trust as to the deemed owner. 
Such contributions may include transfers by gift or any other type of 
transfer between the grantor and the grantor trust that is a 
nonrecognition event as a result of the application of the grantor trust 
rules (that is, subpart E of part I of subchapter J of chapter 1 of 
subtitle A of the Code).
    (ii) Changes in grantor trust status. In general, a change in the 
income tax status of an existing trust owning a qualifying investment in 
a QOF, whether the termination of grantor trust status or the creation 
of grantor trust status, is an inclusion event. Notwithstanding the 
previous sentence, the termination of grantor trust status as the result 
of the death of the owner of a qualifying investment is not an inclusion 
event, but the provisions of paragraph (c)(4) of this section apply to 
distributions or dispositions by the trust. If a qualifying investment 
is held in the grantor portion of an electing small business trust 
(ESBT), as defined in section 1361(e)(1), and the ESBT converts into a 
qualified subchapter S trust (QSST), as defined in section 1361(d)(3), 
the beneficiary of which is the deemed owner of the grantor portion of 
the ESBT, there has been no change in the grantor trust status because 
the deemed owner continues to be taxable under subtitle A of the Code on 
the income and gain from the qualifying investment.
    (iii) Conversions of QSSTs and ESBTs. With regard to conversions of 
QSSTs and ESBTs, see paragraphs (c)(7)(i)(B) and (C) of this section. 
For purposes of paragraph (c)(5)(ii) of this section, if a qualifying 
investment is held by a QSST that converts to an ESBT, the beneficiary 
of the QSST is the deemed owner of the grantor portion of the ESBT that 
then holds the qualifying investment, and the deemed owner is not a 
nonresident alien for purposes of this section (and thus notwithstanding 
Sec.  1.1361-1(j)(8)), there has been no change in the grantor trust 
status because the deemed owner continues to be taxable under subtitle A 
of the Code on the income and gain from the qualifying investment.
    (6) Special rules for partners and partnerships--(i) Scope. Except 
as otherwise provided in this paragraph (c)(6), in the case of a 
partnership that is a QOF or a QOF partner, the inclusion rules of this 
paragraph (c) apply to transactions involving any direct or indirect 
partner of the QOF to the extent of that partner's share of any eligible 
gain of the QOF.
    (ii) Transactions that are not inclusion events--(A) In general. 
Notwithstanding paragraphs (c)(1) and (2) of this section, and except as 
otherwise provided in paragraph (c)(6) of this section, no transaction 
described in paragraph (c)(6)(ii) of this section is an inclusion event.
    (B) Section 721 contributions. Subject to paragraph (c)(6)(v) of 
this section, a contribution by a QOF owner (contributing partner), of 
its qualifying QOF stock, qualifying QOF partnership interest, or direct 
or indirect partnership interest in a qualifying investment to a 
partnership (transferee partnership) to the extent the transaction is 
governed by section 721(a) is not an inclusion event, provided the 
interest transfer does not cause a partnership termination of a QOF 
partnership, or the direct or indirect owner of a QOF, under section 
708(b)(1). See paragraph (c)(6)(ii)(C) of this section for transactions 
governed by section 708(b)(2)(A). The inclusion rules in paragraph (c) 
of this section apply to any part of the transaction to which section 
721(a) does not apply. The transferee partnership becomes subject

[[Page 1018]]

to section 1400Z-2 and the section 1400Z-2 regulations with respect to 
the eligible gain associated with the contributed qualifying investment. 
The transferee partnership must allocate and report the remaining 
deferred gain that is associated with the contributed qualifying 
investment to the contributing partner to the same extent that the 
remaining deferred gain would have been allocated and reported to the 
contributing partner in the absence of the contribution. Additionally, 
the transferee partnership must allocate the basis increases described 
in section 1400Z-2(b)(2)(B)(iii) and (iv) to the contributing partner. 
If a transferee partnership is a direct QOF owner, only the transferee 
partnership may make the elections under section 1400Z-2(c) and the 
regulations in this part under section 1400Z-2(c) of the Code with 
respect to the contributed qualifying investment. See Sec.  1.1400Z2(c)-
1(b)(1)(ii) (election by transferee partnership).
    (C) Section 708(b)(2)(A) mergers or consolidations--(1) Merger of a 
partnership that is a QOF partner. Subject to paragraphs (c)(6)(iii) and 
(v) of this section, a merger or consolidation of a partnership that is 
a QOF partner (original partnership) with another partnership in a 
transaction to which section 708(b)(2)(A) applies is not an inclusion 
event to the extent section 721(a) applies to the merger. To the extent 
the original partnership terminates in the merger, as determined under 
Sec.  1.708-1(c)(1), the partnership that is a continuation of the 
original partnership becomes subject to section 1400Z-2 and the section 
1400Z-2 regulations to the same extent that the original partnership was 
so subject prior to the transaction, and must allocate and report any 
gain under section 1400Z-2(b) to the same extent and to the same 
partners that the original partnership allocated and reported such items 
prior to the transaction. Notwithstanding the rules in this paragraph 
(c)(6)(ii)(C)(1), the general inclusion rules of paragraph (c) of this 
section apply to the portion of the transaction that is otherwise 
treated as a sale or exchange under paragraph (c) of this section.
    (2) Merger of QOF partnerships. Subject to paragraph (c)(6)(v) of 
this section, a merger or consolidation of a QOF partnership with 
another QOF partnership in a transaction to which section 708(b)(2)(A) 
applies is not an inclusion event under paragraph (c)(2)(i) of this 
section if, immediately after the merger or consolidation, the resulting 
partnership is a QOF. The continuing partnership, as determined under 
Sec.  1.708-1(c)(1), becomes subject to section 1400Z-2 and the section 
1400Z-2 regulations to the same extent that the terminated partnership 
was so subject prior to the transaction, and must allocate and report 
any gain under section 1400Z-2(b) to the same extent and to the same 
partners that the terminated partnership would have allocated and 
reported such items prior to the transaction. Notwithstanding the rules 
in this paragraph (c)(6)(ii)(C)(2), the general inclusion rules of 
paragraph (c) of this section apply to the portion of the transaction 
that is otherwise treated as a sale or exchange under paragraph (c) of 
this section.
    (D) Example. The following example illustrates the rules of this 
paragraph (c)(6)(ii).

    (1) Example--(i) Facts. In 2019, taxpayer A contributes $100 of 
eligible gain to a QOF partnership, X, in exchange for a qualifying QOF 
partnership interest in X, and taxpayer B contributes $100 of eligible 
gain to another QOF partnership, Y, in exchange for a qualifying QOF 
partnership interest in Y. In 2021, in transactions governed by section 
721(a), A contributes her qualifying QOF partnership interest in X, and 
B contributes her qualifying QOF partnership interest in Y, to a newly 
formed partnership, UTP. In 2024, C receives a profits interest in UTP 
for services that she will provide to UTP. In 2031, X sells a non-
inventory asset and allocates X's distributive share of the gain to UTP. 
No distributions are ever made from X, Y, or UTP.
    (ii) Analysis. On December 31, 2026, UTP recognizes $170 of 
remaining deferred gain relating to the QOF interests. Of that gain, A 
is allocated the $85 of gain relating to the $100 of eligible gain that 
she invested in X, and B is allocated the $85 of gain relating to the 
$100 of eligible gain that she invested in Y. C recognizes no gain at 
this time. In 2031, because UTP's holding period in X includes A's 
holding period in X, UTP has a holding period in X that exceeds 10 
years, and may make an election under Sec.  1.1400Z2(c)-1(b)(2)(ii) to 
exclude the gain from X's asset sale. Even though A was the original 
investor in X, she may not make the election. If UTP makes the election, 
UTP will exclude its distributive share of gain from the sale of the X 
asset.


[[Page 1019]]


    (2) [Reserved]
    (iii) Partnership distributions. Subject to paragraph (c)(6)(v) of 
this section, an actual or deemed distribution of property, including 
cash, by a QOF partnership to a partner with respect to its qualifying 
investment is an inclusion event only to the extent that the distributed 
property has a fair market value in excess of the partner's basis in its 
qualifying investment. For purposes of this paragraph (c)(6)(iii), in 
the case of a merger or consolidation of a QOF partnership with another 
QOF partnership in a transaction to which section 708(b)(2)(A) applies, 
the fair market value of the distributed property is reduced by the fair 
market value of the QOF partnership interest received in the merger or 
consolidation. A distribution from a partnership that directly or 
indirectly owns a QOF is an inclusion event only if the distribution is 
a liquidating distribution. For purposes of this paragraph (c)(6)(iii), 
the distribution is not in complete liquidation if the partnership 
making the distribution is a partnership that terminates in a 
partnership merger or consolidation under Sec.  1.708-1(c), the 
continuing partnership in the merger or consolidation continues to 
directly or indirectly own an interest in the QOF, and the distributee 
is distributed an interest in the resulting partnership as part of the 
merger or consolidation. See paragraph (c)(6)(iv) of this section for 
special rules relating to mixed-funds investments.
    (iv) Special rules for mixed-funds investments--(A) In general. The 
rules of this paragraph (c)(6)(iv) apply solely for purposes of section 
1400Z-2. A partner that holds a mixed-funds investment in a QOF 
partnership (a mixed-funds partner) shall be treated as holding two 
separate interests in the QOF partnership, one a qualifying investment 
and the other a non-qualifying investment (separate interests). The 
basis of each separate interest is determined under the rules described 
in paragraphs (c)(6)(iv)(B) and (g) of this section as if each interest 
were held by different taxpayers.
    (B) Allocations and distributions. All section 704(b) allocations of 
income, gain, loss, and deduction, all section 752 allocations of debt, 
and all distributions made to a mixed-funds partner will be treated as 
made to the separate interests based on the allocation percentages of 
those interests as defined in paragraph (c)(6)(iv)(D) of this section. 
For purposes of this paragraph (c)(6)(iv)(B), in allocating income, 
gain, loss, or deduction between these separate interests, section 
704(c) principles apply to account for any value-basis disparities 
attributable to the qualifying investment or non-qualifying investment. 
Any distribution (whether actual or deemed) to the holder of a 
qualifying investment is subject to the rules of paragraphs (c)(6)(iii) 
and (v) of this section, without regard to the presence or absence of 
gain under other provisions of subchapter K of chapter 1 of subtitle A 
of the Internal Revenue Code.
    (C) Subsequent contributions. In the event of an increase in a 
partner's qualifying or non-qualifying investment, as for example, in 
the case of an additional contribution for a qualifying investment or 
for an interest that is a non-qualifying investment or a change in 
allocations for services rendered, the partner's interest in the 
separate interests must be valued immediately prior to the event and the 
allocation percentages adjusted to reflect the relative values of these 
separate interests and the additional contribution, if any.
    (D) Allocation percentages. The allocation percentages of the 
separate interests will be determined based on the relative capital 
contributions attributable to the qualifying investment and the non-
qualifying investment. In the event a partner receives a profits 
interest in the QOF partnership for services provided to or for the 
benefit of the QOF partnership, the allocation percentage with respect 
to the profits interest is based on the share of residual profits the 
mixed-funds partner would receive with respect to that interest, 
disregarding any allocation of residual profits for which there is not a 
reasonable likelihood of application.
    (E) Examples. The following examples illustrate the rules of this 
paragraph (c)(6)(iv).

    (1) Example 1. Allocation of residual profits for which there is no 
reasonable likelihood of

[[Page 1020]]

application--(i) Facts. A realizes $100 of eligible gain and B realizes 
$900 of eligible gain. A and B form Q, a QOF partnership. B contributes 
$900 to Q in exchange for a qualifying QOF partnership interest (B's 
capital interest). A contributes $100 to Q in exchange for a qualifying 
QOF partnership interest (A's capital interest and, with B's capital 
interest, the capital interests) and agrees to provide services to Q in 
exchange for a profits interest in Q (A's profits interest). Q's 
partnership agreement provides that Q's profits are first allocated to 
the capital interests until the capital interest holders receive a 10 
percent preferred return with respect to those interests. Next, Q's 
profits are allocated 15 percent to A with respect to A's profits 
interest, 10 percent to A with respect to A's capital interest, and 75 
percent to B until the capital interests receive a 1,000% preferred 
return. Thereafter, Q's profits are allocated 1 percent to A's profits 
interest and 99 percent to the capital interests. There is not a 
reasonable likelihood that Q's profits will be sufficient to result in 
an allocation in the last tranche.
    (ii) Analysis. Under paragraph (c)(6)(iv)(D) of this section, the 
allocation percentage with respect to A's profits interest is calculated 
based on the share of residual profits that A would receive with respect 
to A's profits interest, disregarding any allocation of residual profits 
that has no reasonable likelihood of being achieved. Under Q's 
partnership agreement, A's share of Q's residual profits with respect to 
A's profits interest is 1 percent. However, there is no reasonable 
likelihood that this 1 percent allocation will apply because it is 
unlikely that the capital interests will receive a 1,000% preferred 
return. Therefore, under paragraph (c)(6)(iv)(D) of this section, A's 
share of Q's residual profits with respect to A's profits interest is 15 
percent, the final allocation of Q's profits to A's profits interest 
that is reasonably likely to apply. The allocation percentage for A's 
capital interest in Q is 10 percent under paragraph (c)(6)(iv)(D) of 
this section. Thus, allocations and distributions made to A are treated 
as made 60 percent (15/25) to A's non-qualifying profits interest and 40 
percent (10/25) to A's qualifying QOF partnership interest.
    (2) Example 2. Separate entity holding profits interest--(i) Facts. 
The facts are the same as in paragraph (c)(6)(iv)(E)(1) of this section 
(Example 1), except that A is a partnership that has no eligible gain 
and P, a partnership that is owned by the same taxpayers who own A, 
realizes $100 of eligible gain and contributes $100 to Q for its 
qualifying investment.
    (ii) Analysis. Under paragraph (c)(6)(iv)(D) of this section, A's 
profits interest is a non-qualifying investment in Q. Because P directly 
holds only a qualifying QOF partnership interest in Q, P is not a mixed-
funds partner in Q, and 100 percent of the allocations and distributions 
made to P are attributable to P's qualifying QOF partnership interest.

    (v) Remaining deferred gain reduction rule. An inclusion event 
occurs when and to the extent that a transaction has the effect of 
reducing:
    (A) The amount of remaining deferred gain of one or more direct or 
indirect partners; or
    (B) The amount of gain that would be recognized by such partner or 
partners under paragraph (e)(4)(ii) of this section to the extent that 
such amount would reduce such gain to an amount that is less than the 
remaining deferred gain.
    (7) Special rules for S corporations--(i) In general. Except as 
provided in paragraphs (c)(7)(ii), (iii), and (iv) of this section, none 
of the following is an inclusion event:
    (A) An election, revocation, or termination of a corporation's 
status as an S corporation under section 1362;
    (B) A conversion of a QSST to an ESBT, but only if the QSST 
beneficiary is the deemed owner of the grantor portion of the ESBT that 
receives the qualifying investment and if the deemed owner is not a 
nonresident alien;
    (C) A conversion of an ESBT to a QSST, where the qualifying 
investment is held in the grantor portion of the ESBT and the QSST 
beneficiary is the deemed owner of the grantor portion of the ESBT; and
    (D) A valid modification of a trust agreement of an S-corporation 
shareholder whether by an amendment, a decanting, a judicial 
reformation, or a material modification.
    (ii) Distributions by QOF S corporation--(A) General rule. An actual 
or constructive distribution of property by a QOF S corporation to a QOF 
shareholder with respect to its qualifying investment is an inclusion 
event to the extent that the distribution is treated as gain from the 
sale or exchange of property under section 1368(b)(2) and (c). For the 
treatment of a distribution by a QOF S corporation to which section 
305(a) applies, see paragraph

[[Page 1021]]

(c)(8)(ii). For the treatment of a distribution to which section 302(d) 
or section 306(a)(2) applies, see paragraph (c)(9)(ii) of this section.
    (B) Spill-over rule. For purposes of applying paragraph (c)(7)(ii) 
of this section to the adjusted basis of a qualifying investment, or 
non-qualifying investment, as appropriate, in a QOF S corporation, the 
second sentence of Sec.  1.1367-1(c)(3) applies--
    (1) With regard to multiple qualifying investments, solely to the 
respective bases of such qualifying investments, and does not take into 
account the basis of any non-qualifying investment; and
    (2) With regard to multiple non-qualifying investments, solely to 
the respective bases of such non-qualifying investments, and does not 
take into account the basis of any qualifying investment.
    (iii) Conversion from S corporation to partnership or disregarded 
entity--(A) General rule. Notwithstanding paragraph (c)(7)(i) of this 
section, and except as provided in paragraph (c)(7)(iii)(B) of this 
section, a conversion of an S corporation to a partnership or an entity 
disregarded as separate from its owner under Sec.  301.7701-3(b)(1)(ii) 
of this chapter is an inclusion event.
    (B) Exception for qualifying section 381 transaction. A conversion 
described in paragraph (c)(7)(iii)(A) of this section is not an 
inclusion event if the conversion comprises a step in a series of 
related transactions that together qualify as a qualifying section 381 
transaction.
    (iv) Treatment of separate blocks of stock in mixed-funds 
investments. With regard to a mixed-funds investment in a QOF S 
corporation, if different blocks of stock are created for separate 
qualifying investments to track basis in such qualifying investments, 
the separate blocks are not treated as different classes of stock for 
purposes of S corporation eligibility under section 1361(b)(1).
    (v) Applicability. Paragraph (c)(7) of this section applies 
regardless of whether the S corporation is a QOF or a QOF shareholder.
    (8) Distributions by a QOF corporation--(i) General rule for 
distributions by a QOF C corporation. If a QOF C corporation distributes 
property to a QOF shareholder with respect to a qualifying investment, 
only the amount of the distribution to which section 301(c)(3) or 
1059(a)(2) applies gives rise to an inclusion event. For purposes of 
this paragraph (c)(8)(i), a distribution of property includes a 
distribution of stock in the QOF C corporation making the distribution 
(or rights to acquire such stock) if the distribution is treated as a 
distribution of property to which section 301 applies pursuant to 
section 305(b).
    (ii) Section 305(a) distributions. A distribution with respect to 
qualifying QOF stock to which section 305(a) applies is not an inclusion 
event. QOF stock received in such a distribution is qualifying QOF 
stock. The shareholder's remaining deferred gain is allocated pro rata 
between the new qualifying QOF stock received and the qualifying QOF 
stock with respect to which the distribution was made in proportion to 
the fair market values of each on the date of distribution. See Sec.  
1.307-1(a).
    (9) Dividend-equivalent redemptions and redemptions of section 306 
stock.--(i) Redemptions by QOF C corporations--(A) In general. Except as 
provided in paragraph (c)(9)(i)(B) of this section, if a QOF C 
corporation redeems its stock from a QOF shareholder in a transaction 
described in section 302(d) or section 306(a)(2), the full amount of 
such redemption gives rise to an inclusion event.
    (B) Redemptions of stock of wholly owned QOF C corporation and pro 
rata redemptions. Paragraph (c)(8)(i) of this section applies to a 
redemption described in paragraph (c)(9)(i)(A) of this section if, at 
the time of such redemption--
    (1) All stock in the QOF C corporation is held directly by a single 
shareholder, or directly by members of a single consolidated group; or
    (2) The QOF C corporation has outstanding only one class of stock, 
as defined in section 1361 and Sec.  1.1361-1(l), and the redemption is 
pro rata as to all shareholders of the redeeming QOF C corporation.
    (ii) Redemptions by QOF S corporations. If a QOF S corporation 
redeems

[[Page 1022]]

its stock from a QOF shareholder in a transaction described in section 
302(d) or section 306(a)(2), the amount that gives rise to an inclusion 
event is the amount by which the distribution exceeds basis in the QOF 
stock as adjusted under paragraph (c)(7)(ii) of this section.
    (10) Qualifying section 381 transactions--(i) Assets of a QOF are 
acquired--(A) In general. Except to the extent provided in paragraph 
(c)(10)(i)(C) of this section, if the assets of a QOF corporation are 
acquired in a qualifying section 381 transaction, and if the acquiring 
corporation is a QOF immediately after the acquisition, then the 
transaction is not an inclusion event.
    (B) Determination of acquiring corporation's status as a QOF. For 
purposes of paragraph (c)(10)(i)(A) of this section, the acquiring 
corporation is treated as a QOF immediately after the qualifying section 
381 transaction if the acquiring corporation satisfies the certification 
requirements in Sec.  1.1400Z2(d)-1 immediately after the transaction 
and holds at least 90 percent of its assets in qualified opportunity 
zone property on the first testing date after the transaction. See 
section 1400Z-2(d)(1) and Sec.  1.1400Z2(d)-1.
    (C) Receipt of boot by QOF shareholder in qualifying section 381 
transaction. This paragraph (c)(10)(i)(C) applies if assets of a QOF 
corporation are acquired in a qualifying section 381 transaction and an 
eligible taxpayer that is a QOF shareholder receives boot with respect 
to its qualifying investment. If this paragraph (c)(10)(i)(C) applies, 
the QOF shareholder has an inclusion event and is treated as disposing 
of a portion of its qualifying investment that bears the same proportion 
to the QOF shareholder's total qualifying investment immediately before 
the inclusion event as the fair market value of the boot received by the 
QOF shareholder with respect to its qualifying investment in the 
qualifying section 381 transaction bears to the fair market value of the 
total consideration received by the QOF shareholder with respect to its 
qualifying investment in the qualifying section 381 transaction.
    (ii) Assets of a QOF shareholder are acquired--(A) In general. 
Except to the extent provided in paragraph (c)(10)(ii)(B) of this 
section, a qualifying section 381 transaction in which the assets of a 
QOF shareholder are acquired is not an inclusion event with respect to 
the qualifying investment and the acquiring corporation succeeds to the 
target corporation's status as the QOF shareholder with respect to the 
qualifying investment.
    (B) Qualifying section 381 transaction in which QOF shareholder's 
qualifying investment is not completely acquired. If the assets of a QOF 
shareholder are acquired in a qualifying section 381 transaction in 
which the acquiring corporation does not acquire all of the QOF 
shareholder's qualifying investment, the QOF shareholder has an 
inclusion event and is treated as disposing of the portion of its 
qualifying investment that is not transferred to the acquiring 
corporation.
    (11) Section 355 transactions--(i) Distribution by a QOF--(A) In 
general. Except as provided in paragraph (c)(11)(i)(B) of this section, 
if a QOF corporation distributes stock or securities of a controlled 
corporation to a QOF shareholder with respect to a qualifying investment 
in the QOF corporation in a transaction to which section 355 (or so much 
of section 356 as relates to section 355) applies, the QOF shareholder 
has an inclusion event and is treated as disposing of a portion of its 
qualifying investment equal in value to the fair market value of the 
shares of the controlled corporation and the fair market value of any 
boot received by the QOF shareholder in the distribution with respect to 
its qualifying investment.
    (B) Controlled corporation becomes a QOF--(1) In general. Except as 
provided in paragraph (c)(11)(i)(B)(3) of this section, if a QOF 
corporation distributes stock or securities of a controlled corporation 
in a transaction to which section 355, or so much of section 356 as 
relates to section 355, applies, and if both the distributing 
corporation and the controlled corporation are QOFs immediately after 
the final distribution (qualifying section 355 transaction), then the 
distribution is not an inclusion event with respect to a QOF 
shareholder's qualifying investment in the distributing QOF corporation 
or the

[[Page 1023]]

controlled QOF corporation. This paragraph (c)(11)(i)(B) does not apply 
unless the distributing corporation distributes all of the stock and 
securities in the controlled corporation held by it immediately before 
the distribution within a 30-day period. For purposes of this paragraph 
(c)(11)(i)(B), the term final distribution means the last distribution 
that satisfies the preceding sentence.
    (2) Determination of distributing corporation's and controlled 
corporation's status as QOFs. For purposes of paragraph (c)(11)(i)(B)(1) 
of this section, each of the distributing corporation and the controlled 
corporation is treated as a QOF immediately after the final distribution 
if the corporation satisfies the certification requirements in Sec.  
1.1400Z2(d)-1 immediately after the final distribution and holds at 
least 90 percent of its assets in qualified opportunity zone property on 
the first testing date after the final distribution. See section 1400Z-
2(d)(1) and Sec.  1.1400Z2(d)-1.
    (3) Receipt of boot. If a QOF shareholder receives boot in a 
qualifying section 355 transaction with respect to its qualifying 
investment, and if section 356(a) applies to the transaction, paragraph 
(c)(10)(i)(C) of this section applies. If a QOF shareholder receives 
boot in a qualifying section 355 transaction with respect to its 
qualifying investment, and if section 356(b) applies to the transaction, 
paragraph (c)(8)(i) of this section applies.
    (4) Treatment of controlled corporation stock as qualified 
opportunity zone stock. If stock or securities of a controlled 
corporation are distributed in a qualifying section 355 transaction, and 
if the distributing corporation retains a portion of the controlled 
corporation stock after the initial distribution, the retained stock 
will not cease to qualify as qualified opportunity zone stock in the 
hands of the distributing corporation solely as a result of the 
qualifying section 355 transaction. This paragraph (c)(11)(i)(B)(4) does 
not apply unless the distributing corporation distributes all of the 
stock and securities in the controlled corporation held by it 
immediately before the distribution within a 30-day period.
    (ii) Distribution by a QOF shareholder. If a QOF shareholder 
distributes stock or securities of a controlled QOF corporation in a 
transaction to which section 355 applies, then for purposes of section 
1400Z-2(b)(1) and paragraph (b) of this section, the QOF shareholder has 
an inclusion event and is treated as disposing of the portion of its 
qualifying QOF stock over which it no longer has direct Federal income 
tax ownership.
    (12) Recapitalizations and section 1036 transactions--(i) In 
general. Except as otherwise provided in paragraph (c)(12)(ii) of this 
section, if a QOF corporation engages in a transaction that qualifies as 
a reorganization described in section 368(a)(1)(E) (a recapitalization), 
or if a QOF shareholder engages in a transaction that is described in 
section 1036 (a section 1036 exchange), the transaction is not an 
inclusion event.
    (ii) Receipt of property or boot by QOF shareholder. If a QOF 
shareholder receives property or boot, or is treated as having received 
property or boot, with respect to its qualifying investment in a 
recapitalization, then the property or boot is treated as property or 
boot to which section 301 or section 356(a) or (c) applies, as 
determined under general Federal income tax principles. If, in a section 
1036 exchange, a QOF shareholder receives property with respect to its 
qualifying investment that is not permitted to be received without the 
recognition of gain, then, for purposes of this section, the receipt of 
the property is treated in a similar manner as the receipt of such 
property or boot in a recapitalization. Paragraph (c)(8)(i) of this 
section applies to property to which section 301 applies. Paragraph 
(c)(10)(i)(C) of this section applies to boot to which section 356(a) or 
(c) applies.
    (13) Section 304 transactions. If a QOF shareholder transfers its 
qualifying investment in a transaction described in section 304(a), the 
full amount of the consideration gives rise to an inclusion event.
    (14) Deduction for worthlessness. If an eligible taxpayer claims a 
loss for worthless stock under section 165(g) or otherwise claims a 
worthlessness deduction with respect to all or a portion

[[Page 1024]]

of its qualifying investment, then for purposes of section 1400Z-2 and 
the section 1400Z-2 regulations, the eligible taxpayer has an inclusion 
event and is treated as having disposed of that portion of its 
qualifying investment on the date it became worthless. Thus, neither 
section 1400Z-2(b)(2)(B)(iii) or (iv) nor section 1400Z-2(c) applies to 
that portion of the eligible taxpayer's qualifying investment after the 
date it became worthless.
    (15) Decertification of a QOF. The decertification of a QOF, whether 
a self-decertification pursuant to Sec.  1.1400Z2(d)-1(a)(3) or an 
involuntary decertification pursuant to Sec.  1.1400Z2(d)-1(a)(4), is an 
inclusion event.
    (16) Other inclusion and non-inclusion events. Notwithstanding any 
other provision of this paragraph (c), the Commissioner may determine in 
guidance published in the Internal Revenue Bulletin (see Sec.  
601.601(d)(2) of this chapter) that a type of transaction is or is not 
an inclusion event.
    (d) Holding periods--(1) Holding period for qualifying investment--
(i) In general. Solely for purposes of section 1400Z-2(b)(2)(B), section 
1400Z-2(c), and the section 1400Z-2 regulations, and except as otherwise 
provided in this paragraph (d)(1), the length of time a qualifying 
investment has been held is determined without regard to the period for 
which the eligible taxpayer had held property exchanged for such 
investment (even if such period would be relevant for determining the 
length of time for other Federal income tax purposes).
    (ii) Holding period for qualifying investment received in certain 
transactions with respect to QOFs. For purposes of section 1400Z-
2(b)(2)(B), section 1400Z-2(c), and the section 1400Z-2 regulations, the 
principles of section 1223(1) or (4) apply to determine the holding 
period for a qualifying investment received by a QOF owner in--
    (A) A distribution described in paragraph (c)(2)(ii)(B) of this 
section;
    (B) A distribution to which section 305(a) applies;
    (C) A qualifying section 381 transaction described in paragraph 
(c)(10)(i) or (ii) of this section;
    (D) A qualifying section 355 transaction described in paragraph 
(c)(11)(i)(B) of this section;
    (E) A recapitalization or a section 1036 exchange described in 
paragraph (c)(12) of this section;
    (F) A contribution of a QOF interest to a partnership to the extent 
section 721(a) applies to the transfer; or
    (G) A distribution of a QOF interest to the extent the interest was 
received in a merger of two or more QOF partnerships in a transaction 
described in section 708(b)(2)(A).
    (iii) Tacking with deceased owner or deemed owner of a grantor 
trust. For purposes of section 1400Z-2(b)(2)(B), section 1400Z-2(c), and 
the section 1400Z-2 regulations, the holding period of a qualifying 
investment held by an eligible taxpayer who received that qualifying 
investment by reason of the prior owner's death includes the time during 
which that qualifying investment was held by the deceased owner. The 
rule in the preceding sentence also applies to allow a grantor trust to 
tack the holding period of the deemed owner if the grantor trust 
acquires the qualifying investment from the deemed owner in a 
transaction that is not an inclusion event.
    (2) Status of QOF assets as qualified opportunity zone property. For 
purposes of section 1400Z-2(d) and the section 1400Z-2 regulations, 
including for purposes of determining whether the original use of 
qualified opportunity zone business property commences with the 
acquiring corporation or partnership, qualified opportunity zone 
property does not lose its status as qualified opportunity zone property 
solely as a result of--
    (i) Its transfer by the transferor corporation to the acquiring 
corporation in a qualifying section 381 transaction described in 
paragraph (c)(10)(i) of this section;
    (ii) Its transfer by the distributing corporation to the controlled 
corporation in a qualifying section 355 transaction described in 
paragraph (c)(11)(i)(B) of this section; or
    (iii) Its transfer by the transferor partnership to the acquiring 
partnership in a transaction to which section

[[Page 1025]]

708(b)(2)(A) applies, but only to the extent section 721(a) applies to 
the transaction.
    (e) Amount includible. Except as provided in Sec. Sec.  1.1400Z2(a)-
1(b)(7) and 1.1400Z2(f)-1(b), the amount of gain included in gross 
income under section 1400Z-2(a)(1)(B) and this section on a date 
described in paragraph (b) of this section is determined under this 
paragraph (e).
    (1) In general. Except as provided in paragraphs (e)(2) and (4) of 
this section, and subject to paragraph (e)(5) of this section, in the 
case of an inclusion event, the amount of gain included in gross income 
is equal to the excess of the amount described in paragraph (e)(1)(i) of 
this section over the eligible taxpayer's basis in the portion of the 
qualifying investment that is disposed of in the inclusion event. See 
paragraph (c) of this section for rules regarding the amount that gave 
rise to the inclusion event, and see paragraph (g) of this section for 
applicable ordering rules.
    (i) The amount described in this paragraph (e)(1)(i) is equal to the 
lesser of--
    (A) An amount which bears the same proportion to the remaining 
deferred gain, as--
    (1) The fair market value of the portion of the qualifying 
investment that is disposed of in the inclusion event bears to--
    (2) The fair market value of the total qualifying investment 
immediately before the inclusion event; or
    (B) The fair market value of the portion of the qualifying 
investment that is disposed of in the inclusion event.
    (ii) For purposes of paragraph (e)(1)(i) of this section, the fair 
market value of the portion of the qualifying investment that is 
disposed of in the inclusion event is determined by multiplying the fair 
market value of the eligible taxpayer's entire qualifying investment in 
the QOF, determined as of the date of the inclusion event, by the 
percentage of the eligible taxpayer's qualifying investment that is 
represented by the portion that is disposed of in the inclusion event.
    (2) Property received from a QOF in certain transactions. In the 
case of an inclusion event described in paragraph (c)(6)(iii) or (v), 
(c)(7)(ii), (c)(8)(i), or (c)(9) or (13) of this section (or in 
paragraph (c)(11) or (12) of this section, to the extent the rules in 
paragraph (c)(8)(i) of this section apply to the inclusion event), the 
amount of gain included in gross income is equal to the lesser of--
    (i) The remaining deferred gain; or
    (ii) The amount that gave rise to the inclusion event.
    (3) Gain recognized on December 31, 2026. The amount of gain 
included in gross income on December 31, 2026 is equal to the excess 
of--
    (i) The lesser of--
    (A) The remaining deferred gain; and
    (B) The fair market value of the qualifying investment held on 
December 31, 2026; over
    (ii) The eligible taxpayer's basis in the qualifying investment as 
of December 31, 2026, taking into account only section 1400Z-2(b)(2)(B).
    (4) Special amount includible rule for partnerships and S 
corporations. For purposes of paragraphs (e)(1) and (3) of this section, 
in the case of an inclusion event involving a qualifying investment in a 
QOF partnership or S corporation, or in the case of a qualifying 
investment in a QOF partnership or S corporation held on December 31, 
2026, the amount of gain included in gross income is equal to the lesser 
of--
    (i) The product of--
    (A) The percentage of the qualifying investment that gave rise to 
the inclusion event; and
    (B) The remaining deferred gain, less any basis adjustments pursuant 
to section 1400Z-2(b)(2)(B)(iii) and (iv); or
    (ii) The gain that would be recognized on a fully taxable 
disposition at fair market value of the qualifying investment that gave 
rise to the inclusion event.
    (5) Limitation on amount of gain included after statutory five-year 
and seven-year basis increases. The total amount of gain included in 
gross income under this paragraph (e) is limited to the amount deferred 
under section 1400Z-2(a)(1) and the section 1400Z-2 regulations, reduced 
by any increase in the basis of the qualifying investment made pursuant 
to section 1400Z-2(b)(2)(B)(iii) and (iv). See paragraph (g)(2) of this 
section for limitations on

[[Page 1026]]

the amount of basis adjustments under section 1400Z-2(b)(2)(B)(iii) and 
(iv).
    (f) Examples. The following examples illustrate the rules of 
paragraphs (c), (d) and (e) of this section. For purposes of the 
following examples: A, B, C, W, X, Y, and Z are C corporations that do 
not file a consolidated Federal income tax return; Q is a QOF 
corporation or a QOF partnership, as specified in each example; and each 
divisive corporate transaction satisfies the requirements of section 
355.

    (1) Example 1. Determination of basis, holding period, and 
qualifying investment --(i) Facts. A wholly and directly owns Q, a QOF 
corporation. On May 31, 2019, A sells a capital asset to an unrelated 
party and realizes $500 of capital gain. On October 31, 2019, A 
transfers unencumbered asset N to Q in exchange for a qualifying 
investment. Asset N, which A has held for 10 years, has a basis of $500 
and a fair market value of $500. A elects to defer the inclusion of $500 
in gross income under section 1400Z-2(a) and Sec.  1.1400Z2(a)-1.
    (ii) Analysis. Under Sec.  1.1400Z2(a)-1(c)(6)(ii)(B)(1), A made a 
qualifying investment of $500. Under section 1400Z-2(b)(2)(B)(i), A's 
basis in its qualifying investment in Q is $0. For purposes of sections 
1400Z-2(b)(2)(B) and 1400Z-2(c), A's holding period in its new 
investment in Q begins on October 31, 2019. See paragraph (d)(1)(i) of 
this section. Other than for purposes of applying section 1400Z-2, A has 
a 10-year holding period in its new Q investment as of October 31, 2019.
    (iii) Transfer of built-in gain property. The facts are the same as 
in paragraph (f)(1)(i) of this section (this Example 1), but A's basis 
in transferred asset N is $200. Under Sec.  1.1400Z2(a)-
1(c)(6)(ii)(B)(1), A made a qualifying investment of $200 and a non-
qualifying investment of $300.
    (2) Example 2. Transfer of qualifying investment--(i) Facts. On May 
31, 2019, taxpayer A sells a capital asset to an unrelated party and 
realizes $500 of capital gain. On October 31, 2019, A transfers $500 to 
newly formed Q, a QOF corporation, in exchange for a qualifying 
investment. On February 29, 2020, A transfers 25 percent of its 
qualifying investment in Q to newly formed Y in exchange for 100 percent 
of Y's stock in a transfer to which section 351 applies (Transfer), at a 
time when the fair market value of A's qualifying investment in Q is 
$800.
    (ii) Analysis. Under Sec.  1.1400Z2(a)-1(c)(6)(ii)(A), A made a 
qualifying investment of $500 on October 31, 2019. In the Transfer, A 
exchanged 25 percent of its qualifying investment for Federal income tax 
purposes, which reduced A's direct qualifying investment. Under 
paragraph (c)(1)(i) of this section, the Transfer is an inclusion event 
to the extent of the reduction in A's direct qualifying investment. 
Under paragraph (e)(1) of this section, A therefore includes in income 
an amount equal to the excess of the amount described in paragraph 
(e)(1)(i) of this section over A's basis in the portion of the 
qualifying investment that was disposed of, which in this case is $0. 
The amount described in paragraph (e)(1)(i) is the lesser of $125 ($500 
x ($200/$800)) or $200. As a result, A must include $125 of its deferred 
capital gain in income in 2020. After the Transfer, the Q stock is not 
qualifying Q stock in Y's hands.
    (iii) Disregarded transfer. The facts are the same as in paragraph 
(f)(2)(i) of this section (this Example 2), except that Y elects to be 
treated as an entity that is disregarded as an entity separate from its 
owner for Federal income tax purposes effective prior to the Transfer. 
Since the Transfer is disregarded for Federal income tax purposes, A's 
transfer of its qualifying investment in Q is not treated as a reduction 
in direct tax ownership for Federal income tax purposes, and the 
Transfer is not an inclusion event with respect to A's qualifying 
investment in Q for purposes of section 1400Z-2(b)(1) and paragraph (b) 
of this section. Thus, A is not required to include in income any 
portion of its deferred capital gain.
    (iv) Election to be treated as a corporation. The facts are the same 
as in paragraph (f)(2)(iii) of this section (this Example 2), except 
that Y (a disregarded entity) subsequently elects to be treated as a 
corporation for Federal income tax purposes. A's deemed transfer of its 
qualifying investment in Q to Y under Sec.  301.7701-3(g)(1)(iv) of this 
chapter is an inclusion event for purposes of section 1400Z-2(b)(1) and 
paragraph (b) of this section.
    (3) Example 3. Part sale of qualifying QOF partnership interest in 
Year 6 when value of the QOF partnership interest has increased--(i) 
Facts. In October 2018, A and B each realize $200 of eligible gain, and 
C realizes $600 of eligible gain. On January 1, 2019, A, B, and C form 
Q, a QOF partnership. A contributes $200 of cash, B contributes $200 of 
cash, and C contributes $600 of cash to Q in exchange for qualifying QOF 
partnership interests in Q. A, B, and C hold 20 percent, 20 percent, and 
60 percent interests in Q, respectively. On January 30, 2019, Q obtains 
a nonrecourse loan from a bank for $1,000. Under section 752, the loan 
is allocated $200 to A, $200 to B, and $600 to C. On February 1, 2019, Q 
purchases qualified opportunity zone business property for $2,000. On 
July 31, 2024, A sells 50 percent of its qualifying QOF partnership 
interest in Q to B for $400 cash. Prior to the sale, there were no 
inclusion events, distributions, partner changes, income or loss 
allocations, or changes in the amount or allocation of debt outstanding. 
At the time of

[[Page 1027]]

the sale, the fair market value of Q's qualified opportunity zone 
business property is $5,000.
    (ii) Analysis. Because A held its qualifying QOF partnership 
interest for at least five years, A's basis in its partnership interest 
at the time of the sale is $220 (the original zero basis with respect to 
the contribution, plus the $200 debt allocation, plus the 10% increase 
for interests held for five years). The sale of 50 percent of A's 
qualifying QOF partnership interest to B requires A to recognize $90 of 
gain, the lesser of $90, which is 50 percent of $180 (the $200 remaining 
deferred gain less the $20 five-year basis adjustment), or $390, which 
is the gain that would be recognized on a taxable sale of 50 percent of 
the interest. A also recognizes $300 of gain relating to the 
appreciation of its interest in Q.
    (4) Example 4. Sale of qualifying QOF partnership interest when 
value of the QOF partnership interest has decreased--(i) Facts. The 
facts are the same as in paragraph (f)(3) of this section (Example 3), 
except that A sells 50 percent of its qualifying QOF partnership 
interest in Q to B for cash of $50, and at the time of the sale, the 
fair market value of Q's qualified opportunity zone business property is 
$1,500.
    (ii) Analysis. Because A held its qualifying QOF partnership 
interest for at least five years, A's basis at the time of the sale is 
$220. Under section 1400Z-2(b)(2)(A), the sale of 50 percent of A's 
qualifying QOF partnership interest to B requires A to recognize $40 of 
gain, the lesser of $90 (50 percent of the excess of A's $200 remaining 
deferred gain over A's $20 five-year adjustment) or $40 (the gain that 
would be recognized by A on a sale of 50 percent of its QOF interest). 
A's remaining basis in its qualifying QOF partnership interest is $110.
    (5) Example 5. Amount includible on December 31, 2026--(i) Facts. 
The facts are the same as in paragraph (f)(3) of this section (Example 
3), except that no sale of QOF interests takes place in 2024. Prior to 
December 31, 2026, there were no inclusion events, distributions, 
partner changes, income or loss allocations, or changes in the amount or 
allocation of debt outstanding.
    (ii) Analysis. For purposes of calculating the amount includible on 
December 31, 2026, each of A's basis and B's basis is increased by $30 
to $230, and C's basis is increased by $90 to $690 because they held 
their qualifying QOF partnership interests for at least seven years. 
Each of A and B is required to recognize $170 of gain, and C is required 
to recognize $510 of gain.
    (iii) Sale of qualifying QOF partnership interests. The facts are 
the same as in paragraph (f)(5)(i) of this section (this Example 5), 
except that, on March 2, 2030, C sells its entire qualifying QOF 
partnership interest in Q to an unrelated buyer for cash of $4,200. 
Assuming an election under section 1400Z-2(c) is made, the basis of C's 
Q interest is increased to its fair market value immediately before the 
sale by C. C is treated as purchasing the interest immediately before 
the sale and the bases of the partnership's assets are increased in the 
manner they would be if the partnership had an election under section 
754 in effect.
    (6) Example 6. Mixed-funds investment--(i) Facts. On January 1, 
2019, A and B form Q, a QOF partnership. A contributes $200 to Q, $100 
of which is in exchange for a qualifying investment, and B contributes 
$200 to Q in exchange for a qualifying investment. All the cash is used 
to purchase qualified opportunity zone property. Q has no liabilities. 
On March 30, 2023, when the values and bases of the qualifying 
investments remain unchanged, Q distributes $50 to A.
    (ii) Analysis. Under paragraph (c)(6)(iv) of this section, A is a 
mixed-funds partner holding two separate interests, a qualifying 
investment and a non-qualifying investment. One half of the $50 
distribution is treated under that provision as being made with respect 
to A's qualifying investment. For the $25 distribution made with respect 
to the qualifying investment, A is required to recognize $25 of gain.
    (iii) Basis adjustments. Under paragraph (g)(1)(ii)(B) of this 
section, prior to determining the tax consequences of the distribution, 
A increases its basis in its qualifying QOF partnership interest by $25 
under section 1400Z-2(b)(2)(B)(ii). The distribution of $25 results in 
no gain under section 731. After the distribution, A's basis in its 
qualifying QOF partnership interest is $0 ($25-$25).
    (7) Example 7. Qualifying section 381 transaction of a QOF 
corporation--(i) Facts. X wholly and directly owns Q, a QOF corporation. 
On May 31, 2019, X sells a capital asset to an unrelated party and 
realizes $500 of capital gain. On October 31, 2019, X contributes $500 
to Q in exchange for a qualifying investment. In 2020, Q merges with and 
into unrelated Y (with Y surviving) in a transaction that qualifies as a 
reorganization under section 368(a)(1)(A) (Merger). X does not receive 
any boot in the Merger with respect to its qualifying investment in Q. 
Immediately after the Merger, Y satisfies the requirements for QOF 
status under section 1400Z-2(d)(1) (see paragraph (c)(10)(i)(B) of this 
section).
    (ii) Analysis. The Merger is not an inclusion event for purposes of 
section 1400Z-2(b)(1) and paragraph (b) of this section. See paragraph 
(c)(10)(i)(A) of this section. Accordingly, X is not required to include 
in income in 2020 its $500 of deferred capital gain as a result of the 
Merger. For purposes of section 1400Z-2(b)(2)(B) and (c), X's holding 
period for its investment in Y is treated as beginning on October 31, 
2019. For purposes of section 1400Z-2(d), Y's holding period in its

[[Page 1028]]

assets includes Q's holding period in its assets, and Q's qualified 
opportunity zone business property continues to qualify as such. See 
paragraph (d)(2) of this section.
    (iii) Merger of QOF shareholder. The facts are the same as in 
paragraph (f)(7)(i) of this section (this Example 7), except that, in 
2020, X (rather than Q) merges with and into Y in a section 381 
transaction in which Y acquires all of X's qualifying investment in Q, 
and Y does not qualify as a QOF immediately after the merger. The merger 
transaction is not an inclusion event for purposes of section 1400Z-
2(b)(1) and paragraph (b) of this section. See paragraph (c)(10)(ii) of 
this section.
    (iv) Receipt of boot. The facts are the same as in paragraph 
(f)(7)(i) of this section (this Example 7), except that the value of X's 
qualifying investment immediately before the Merger is $1,000, X 
receives $100 of cash in addition to Y stock with a fair market value of 
$900 in the Merger in exchange for its qualifying investment, and 
neither Q nor Y has any earnings and profits. Under paragraph 
(c)(10)(i)(C) of this section, X is treated as disposing of 10 percent 
($100/$1000) of its qualifying investment. Under paragraph (e)(1) of 
this section, X is required to include $50 ($500 x ($100/$1000)) of its 
deferred capital gain in income in 2020.
    (8) Example 8. Section 355 distribution by a QOF--(i) Facts. A 
wholly and directly owns Q, a QOF corporation, which wholly and directly 
owns Y, a corporation that is a qualified opportunity zone business. On 
May 31, 2019, A sells a capital asset to an unrelated party and realizes 
$500 of capital gain. On October 31, 2019, A contributes $500 to Q in 
exchange for a qualifying investment. On June 26, 2025, Q distributes 
all of the stock of Y to A in a transaction in which no gain or loss is 
recognized under section 355 (Distribution). Immediately after the 
Distribution, each of Q and Y satisfies the requirements for QOF status. 
(See paragraph (c)(11)(i)(B)(2) of this section.)
    (ii) Analysis. Because each of Q, the distributing corporation, and 
Y, the controlled corporation, is a QOF immediately after the 
Distribution, the Distribution is a qualifying section 355 transaction. 
Thus, the Distribution is not an inclusion event for purposes of section 
1400Z-2(b)(1) and paragraph (b) of this section. See paragraph 
(c)(11)(i)(B) of this section. Accordingly, A is not required to include 
in income in 2025 any of its $500 of deferred capital gain as a result 
of the Distribution. For purposes of section 1400Z-2(b)(2)(B) and (c), 
A's holding period for its qualifying investment in Y is treated as 
beginning on October 31, 2019. See paragraph (d)(1)(ii) of this section.
    (iii) Section 355 distribution by a QOF shareholder. The facts are 
the same as in paragraph (f)(8)(i) of this section (this Example 8), 
except that A distributes 80 percent of the stock of Q, all of which is 
a qualifying investment in the hands of A, to A's shareholders in a 
transaction in which no gain or loss is recognized under section 355. At 
the time of the distribution, the fair market value of A's Q stock 
exceeds $500. The distribution is an inclusion event for purposes of 
section 1400Z-2(b)(1) and paragraph (b) of this section, and A is 
required to include in income $400 (80 percent of its $500 of deferred 
capital gain) as a result of the distribution. See paragraphs (c)(1) and 
(c)(11)(ii) of this section.
    (iv) Distribution of boot. The facts are the same as in paragraph 
(f)(8)(i) of this section (this Example 8), except that A receives boot 
in the Distribution. Under paragraphs (c)(8)(i) and (c)(11)(i)(B)(3) of 
this section, the receipt of boot in the Distribution is an inclusion 
event for purposes of section 1400Z-2(b)(1) and paragraph (b) of this 
section to the extent of gain recognized pursuant to section 301(c)(3).
    (v) Section 355 split-off. The facts are the same as in paragraph 
(f)(8)(i) of this section (this Example 8), except that Q stock is 
directly owned by both A and B (each of which has made a qualifying 
investment in Q), and Q distributes all of the Y stock to B in exchange 
for B's Q stock in a transaction in which no gain or loss is recognized 
under section 355. The distribution is a qualifying section 355 
transaction and is not an inclusion event for purposes of section 1400Z-
2(b)(1) and paragraph (b) of this section. Neither A nor B is required 
to include its deferred capital gain in income in 2025 as a result of 
the distribution.
    (vi) Section 355 split-up. The facts are the same as in paragraph 
(f)(8)(v) of this section (this Example 8), except that Q wholly and 
directly owns both Y and Z; Q distributes all of the Y stock to A in 
exchange for A's Q stock and distributes all of the Z stock to B in 
exchange for B's Q stock in a transaction in which no gain or loss is 
recognized under section 355; Q then liquidates; and immediately after 
the Distribution, each of Y and Z satisfies the requirements for QOF 
status. The distribution is a qualifying section 355 transaction and is 
not an inclusion event for purposes of section 1400Z-2(b)(1) and 
paragraph (b) of this section. Neither A nor B is required to include 
its deferred capital gain in income in 2025 as a result of the 
transaction.
    (vii) Section 355 split-off with boot. The facts are the same as in 
paragraph (f)(8)(v) of this section (this Example 8), except that B also 
receives boot. Under paragraph (c)(11)(i)(B)(3) of this section, B has 
an inclusion event and is treated as disposing of a portion of its 
qualifying investment that bears the same proportion to B's total 
qualifying investment immediately before the inclusion event as the fair 
market value of the boot bears to the fair market value of the total 
consideration received by B.

[[Page 1029]]

    (9) Example 9. Recapitalization--(i) Facts. On May 31, 2019, each of 
A and B sells a capital asset to an unrelated party and realizes $500 of 
capital gain. On October 31, 2019, A contributes $500 to newly formed Q 
in exchange for 50 shares of class A stock of Q (A's qualifying 
investment) and B contributes $500 to Q in exchange for 60 shares of 
class B stock of Q (B's qualifying investment). A and B are the sole 
shareholders of Q. In 2020, B exchanges all of its class B stock of Q 
for 40 shares of class A stock of Q as well as other property in a 
transaction that qualifies as a reorganization under section 
368(a)(1)(E).
    (ii) Analysis. Because A did not receive any boot in the 
transaction, A does not have an inclusion event with respect to its 
qualifying investment in Q. See paragraph (c)(12)(i) of this section. 
Therefore, A is not required to include any of its deferred gain in 
income as a result of this transaction. However, under paragraph 
(c)(12)(ii) of this section, B has an inclusion event. If section 301 
applies to the boot received by B, B has an inclusion event to the 
extent of its section 301(c)(3) gain. If section 356(a) or (c) applies 
to the boot received by B, B is treated as disposing of a portion of its 
qualifying investment that bears the same proportion to B's total 
qualifying investment immediately before the inclusion event as the fair 
market value of the boot bears to the fair market value of the total 
consideration received by B.
    (10) Example 10. Debt financed distribution--(i) Facts. On September 
24, 2019, A and B form Q, a QOF partnership, each contributing $200 that 
is deferred under the section 1400Z-2(a) election to Q in exchange for a 
qualifying investment. On November 18, 2022, Q obtains a nonrecourse 
loan from a bank for $300. Under section 752, the loan is allocated $150 
to A and $150 to B. On November 30, 2022, when the values and bases of 
the investments remain unchanged, Q distributes $50 to A.
    (ii) Analysis. A is not required to recognize gain under paragraph 
(c) of this section because A's basis in its qualifying investment is 
$150 (the original zero basis with respect to the contribution, plus the 
$150 debt allocation). The distribution reduces A's basis to $100.
    (11) Example 11. Debt financed distribution in excess of basis--(i) 
Facts. The facts are the same as in paragraph (f)(10) of this section 
(Example 10), except that the loan is entirely allocated to B under 
section 752. On November 30, 2024, when the values of the investments 
remain unchanged, Q distributes $50 to A.
    (ii) Analysis. Under paragraph (c)(6)(iii) of this section, A is 
required to recognize $30 of eligible gain under paragraph (c) of this 
section because the $50 distributed to A exceeds A's $20 basis in its 
qualifying investment (the original zero basis with respect to its 
contribution, plus $20 with regard to section 1400Z-2(b)(2)(B)(iii)).

    (g) Basis adjustments--(1) Basis adjustments under section 1400Z-
2(b)(2)(B)(ii) resulting from the inclusion of deferred gain--(i) In 
general. Except as provided in paragraph (g)(1)(ii) of this section, 
basis adjustments under section 1400Z-2(b)(2)(B)(ii) are made 
immediately after the amount of gain determined under section 1400Z-
2(b)(2)(A) is included in income under section 1400Z-2(b)(1). If the 
basis adjustment under section 1400Z-2(b)(2)(B)(ii) is being made as a 
result of an inclusion event, then the basis adjustment is made before 
determining the other Federal income tax consequences of the inclusion 
event.
    (ii) Specific application to section 301(c)(3) gain, section 
1059(a)(2) gain, S corporation shareholder gain, or partner gain--(A) 
Applicability. This paragraph (g)(1)(ii) applies if a QOF makes a 
distribution to its owner, and if, without regard to any basis 
adjustment under section 1400Z-2(b)(2)(B)(ii), at least a portion of the 
distribution would be characterized as gain under section 301(c)(3), 
section 1059(a)(2), or paragraphs (c)(6)(iii) and (c)(7)(ii) of this 
section with respect to the owner's qualifying investment in the QOF.
    (B) Ordering rule. If paragraph (g)(1)(ii) of this section applies, 
an eligible taxpayer is treated as having an inclusion event to the 
extent provided in paragraph (c)(6)(iii), (c)(7)(ii), or (c)(8), (9), 
(11), (12), or (13) of this section, as applicable. Then, the eligible 
taxpayer increases its basis under section 1400Z-2(b)(2)(B)(ii) before 
determining the Federal income tax consequences of the distribution.
    (iii) Shares in QOF C corporations to which section 1400Z-
2(b)(2)(B)(ii) adjustments are made. If a shareholder of a QOF C 
corporation disposes of qualifying QOF stock in an exchange subject to 
section 1001, basis adjustments under section 1400Z-2(b)(2)(B)(ii) are 
made only to the portion of the qualifying investment that is disposed 
of in the inclusion event.
    (2) Amount of basis adjustment under section 1400Z-2(b)(2)(B)(iii) 
and (iv). The increases in basis under section 1400Z-2(b)(2)(B)(iii) and 
(iv) are limited to 10 percent and 5 percent, respectively, of the 
remaining deferred gain with respect to a qualifying investment as of

[[Page 1030]]

the dates on which basis is increased under that section.
    (3) Examples. The following examples illustrate the rules of 
paragraphs (g)(1) and (2) of this section.

    (i) Example 1--(A) Facts. On May 31, 2019, A, a C corporation, sells 
a capital asset to an unrelated party and realizes $500 of capital gain. 
On October 31, 2019, A contributes $500 to Q, a newly formed QOF C 
corporation, in exchange for all of the outstanding Q common stock and 
elects to defer the recognition of $500 of capital gain under section 
1400Z-2(a) and Sec.  1.1400Z2(a)-1. In 2020, when Q has $40 of earnings 
and profits, Q distributes $100 to A (Distribution).
    (B) Recognition of gain. Under paragraph (g)(1)(ii)(B) of this 
section, the Distribution is first evaluated without regard to any basis 
adjustment under section 1400Z-2(b)(2)(B)(ii). Of the $100 distribution, 
$40 is treated as a dividend and $60 is treated as gain from the sale or 
exchange of property under section 301(c)(3), because A's basis in its Q 
stock is $0 under section 1400Z-2(b)(2)(B)(i). Under paragraphs 
(c)(8)(i) and (e)(2) of this section, $60 of A's gain that was deferred 
under section 1400Z-2(a) and Sec.  1.1400Z2(a)-1 is recognized in 2020. 
Pursuant to Sec.  1.312-6(b), A's earnings and profits increase by $60.
    (C) Basis adjustments. Under paragraph (g)(1)(ii)(B) of this 
section, prior to determining the further tax consequences of the 
Distribution, A increases its basis in its Q stock by $60 in accordance 
with section 1400Z-2(b)(2)(B)(ii). As a result, the Distribution is 
characterized as a dividend of $40 under section 301(c)(1) and a return 
of basis of $60 under section 301(c)(2). Therefore, after the section 
301 distribution, A's basis in Q is $0 ($60-$60).
    (ii) Example 2--(A) Facts. The facts are the same as in paragraph 
(g)(3)(i) of this section (Example 1), except that, instead of receiving 
a distribution, A sells half of the Q stock for $250 in 2020. A 
continues to hold the remainder of its Q stock through 2024.
    (B) Recognition of gain and basis adjustments in 2020. Under 
paragraphs (c)(1) and (e)(1) of this section, $250 of A's gain that was 
deferred under section 1400Z-2(a) and Sec.  1.1400Z2(a)-1 is recognized 
in 2020. Under paragraphs (g)(1)(i) and (iii) of this section, A 
increases its basis to $250 in the sold shares in accordance with 
section 1400Z-2(b)(2)(B)(ii) immediately before the sale. Accordingly, A 
has no gain or loss on the sale ($250-$250). Pursuant to Sec.  1.312-
6(b), A's earnings and profits increase by $250. A's basis in its 
remaining shares of Q stock remains $0.
    (C) Basis adjustment in 2024. Under paragraph (g)(2) of this 
section, A increases its basis in its remaining shares of Q stock in 
accordance with section 1400Z-2(b)(2)(B)(iii). Pursuant to Sec.  1.312-
6(b), A's earnings and profits are increased by the amount of the basis 
adjustment.

    (4) Special partnership rules--(i) General rule. The initial basis 
under section 1400Z-2(b)(2)(B)(i) of a qualifying investment in a QOF 
partnership is zero, as adjusted to take into account the contributing 
partner's share of partnership debt under section 752.
    (ii) Treatment of basis adjustments. Any basis adjustment to a 
qualifying investment in a QOF partnership described in section 1400Z-
2(b)(2)(B)(iii) and (iv) and section 1400Z-2(c) is basis for all 
purposes, including for purposes of suspended losses under section 
704(d).
    (iii) Tiered arrangements. Any basis adjustment described in section 
1400Z-2(b)(2)(B)(iii) and (iv) and section 1400Z-2(c) (basis adjustment 
rules) will be treated as an item of income described in section 
705(a)(1) and must be reported in accordance with the applicable forms 
and instructions. Any amount to which the basis adjustment rules or to 
which section 1400Z-2(b)(1) applies will be allocated to the owners of 
the QOF, and to the owners of any partnership that directly or 
indirectly (solely through one or more partnerships) owns the eligible 
interest, and will track to the owners' interests, based on their shares 
of the remaining deferred gain to which such amounts relate.
    (5) Basis adjustments in S corporation stock--(i) Treatment of basis 
adjustments. Any basis adjustment to a qualifying investment in a QOF S 
corporation described in section 1400Z-2(b)(2)(B)(iii) and (iv) and 
section 1400Z-2(c) is basis for all purposes, including for purposes of 
suspended losses under section 1366(d).
    (ii) S corporation investor in QOF--(A) S corporation. If an S 
corporation is an investor in a QOF, the S corporation must adjust the 
basis of its qualifying investment as set forth in this paragraph (g). 
The rule in this paragraph (g)(5)(ii)(A) does not affect adjustments to 
the basis of any other asset of the S corporation.
    (B) S corporation shareholder--(1) In general. The S corporation 
shareholder's pro-rata share of any recognized capital gain that has 
been deferred at the S corporation level will be

[[Page 1031]]

separately stated under section 1366 when recognized and will adjust the 
shareholders' stock bases under section 1367 at that time.
    (2) Basis adjustments to qualifying investments. Any adjustment made 
to the basis of an S corporation's qualifying investment under section 
1400Z-2(b)(2)(B)(iii) or (iv), or section 1400Z-2(c), will not:
    (i) Be separately stated under section 1366; or
    (ii) Until the date on which an inclusion event with respect to the 
S corporation's qualifying investment occurs, adjust the shareholders' 
stock bases under section 1367.
    (3) Basis adjustments resulting from inclusion events. If the basis 
adjustment under section 1400Z-2(b)(2)(B)(ii) is being made as a result 
of an inclusion event, then the basis adjustment is made before 
determining the tax consequences of the inclusion event other than the 
computation of the tax on the deferred gain.
    (iii) QOF S corporation--(A) Transferred basis of assets received. 
If a QOF S corporation receives an asset in exchange for a qualifying 
investment, the basis of the asset shall be the same as it would be in 
the hands of the transferor, increased by the amount of the gain 
recognized by the transferor on such transfer.
    (B) Basis adjustments resulting from inclusion events. If the basis 
adjustment under section 1400Z-2(b)(2)(B)(ii) for the shareholder of the 
QOF S corporation is being made as a result of an inclusion event, then 
the basis adjustment is made before determining the tax consequences of 
the inclusion event other than the computation of the tax on the 
deferred gain.
    (6) Basis in the hands of a taxpayer who received a qualifying 
investment in a QOF by reason of the prior owner's death--(i) In 
general. The basis of a qualifying investment in a QOF, transferred by 
reason of a decedent's death in a transfer that is not an inclusion 
event, is zero under section 1400Z-2(b)(2)(B)(i), as adjusted for 
increases in basis as provided under section 1400Z-2(b)(2)(B)(ii) 
through (iv) and (c). See paragraph (c)(4) of this section.

    (ii) Examples. The following examples illustrate the rule of this 
paragraph (g)(6).
    (A) Example 1. Taxpayer A, an individual, contributed $50X to a QOF 
in exchange for a qualifying investment in the QOF in January 2019. This 
$50X was capital gain that was excluded from A's gross income under 
section 1400Z-2(a)(1)(A). A's basis in the qualifying investment is 
zero. As of January 2024, A's basis in the QOF is increased by an amount 
equal to 10 percent of the amount of gain deferred by reason of section 
1400Z-2(a)(1)(A), so that A's adjusted basis in 2024 is $5X. A dies in 
2025 and A's heir inherits this qualifying investment in the QOF. A's 
death is not an inclusion event for purposes of section 1400Z-2. The 
heir's basis in the qualifying investment is $5X.
    (B) Example 2. The facts are the same as in paragraph (g)(6)(ii)(A) 
of this section (Example 1), except that A dies in November 2027, when 
the fair market value of the qualifying investment was $75X. A was 
required to pay the tax on the excess of the deferred capital gain over 
A's basis as part of A's 2026 income. Therefore, at the time of A's 
death, A's basis in the qualifying investment is the sum of three basis 
adjustments: The adjustment made in January 2024 described in paragraph 
(g)(6)(ii)(A) (Example 1) ($5X); an additional adjustment made as of 
January 2026 equal to 5 percent of the amount of gain deferred by reason 
of section 1400Z-2(a)(1)(A) ($2.5X); and the adjustment as of December 
31, 2026, by reason of section 1400Z-2(b)(1)(B) and (b)(2)(B)(ii) 
($42.5X). Accordingly, the basis of the qualifying investment in the 
hands of A's heir is $50X.

    (h) Notifications by partners and partnerships, and shareholders and 
S corporations--(1) Notification of deferral election. A partnership 
that makes a deferral election must notify all of its partners of the 
deferral election and state each partner's distributive share of the 
deferred gain in accordance with applicable forms and instructions.
    (2) Notification of deferred gain recognition by indirect QOF owner. 
If an indirect owner of a QOF partnership sells or otherwise disposes of 
all or a portion of its indirect interest in the QOF partnership in a 
transaction that is an inclusion event under paragraph (c) of this 
section, such indirect owner must provide to the QOF owner notification 
and information sufficient to enable the QOF owner, in a timely manner, 
to recognize an appropriate amount of deferred gain.
    (3) Notification of section 1400Z-2(c) election. A QOF partner or 
QOF S corporation shareholder must notify the QOF partnership or QOF S 
corporation, as appropriate, of an election under

[[Page 1032]]

section 1400Z-2(c) to adjust the basis of the qualifying QOF partnership 
interest or qualifying QOF stock, as appropriate, that is disposed of in 
a taxable transaction. Notification of the section 1400Z-2(c) election, 
and the adjustments to the basis of the qualifying QOF partnership 
interest(s) or qualifying QOF stock disposed of, or to the QOF 
partnership asset(s) or QOF S corporation asset(s) disposed of, as 
appropriate, is to be made in accordance with applicable forms and 
instructions.
    (i) [Reserved]
    (j) Applicability dates--(1) In general. The provisions of this 
section are applicable for taxable years beginning after March 13, 2020.
    (2) Prior periods. With respect to the portion of a taxpayer's first 
taxable year ending after December 21, 2017, that began on December 22, 
2017, and for taxable years beginning after December 21, 2017, and on or 
before March 13, 2020, a taxpayer may choose either--
    (i) To apply section 1400Z-2 regulations, if applied in a consistent 
manner for all such taxable years; or
    (ii) To rely on the rules in proposed Sec.  1.1400Z2(b)-1 contained 
in the notice of proposed rulemaking (REG-120186-18) published on May 1, 
2019, but only if applied in a consistent manner for all such taxable 
years.

[T.D. 9889, 85 FR 1964, Jan. 13, 2020; 85 FR 19083, Apr. 6, 2020]

    Editorial Note: At 85 FR 19083, April 6, 2020, Sec.  1.1400Z2(b)-1 
was amended in part by revising paragraphs (j)(2) introductory text and 
(j)(2)(i); however, the amendment could not be incorporated due to 
inaccurate amendatory instruction.



Sec.  1.1400Z2(c)-1  Investments held for at least 10 years.

    (a) Scope. This section provides rules under section 1400Z-2(c) of 
the Internal Revenue Code regarding the election to adjust the basis in 
a qualifying investment in a QOF or in certain eligible property held by 
the QOF. See Sec.  1.1400Z2(b)-1(d) for rules for determining the 
holding period of a qualifying investment for purposes of this section.
    (b) Investment for which an election can be made--(1) In general--
(i) Election by taxpayer. An eligible taxpayer who makes a deferral 
election with respect to, or acquires by reason of a transaction that is 
not an inclusion event, a qualifying investment in a QOF, recognizes 
gain (if any) on December 31, 2026, of an amount determined under Sec.  
1.1400Z2(b)-1(e)(3) (and so much of Sec.  1.1400Z2(b)-1(e)(4) as relates 
to Sec.  1.1400Z2(b)-1(e)(3)) with respect to that qualifying 
investment, and whose holding period in that qualifying investment is at 
least ten years, is eligible to make an election described in section 
1400Z-2(c) on the sale or exchange of that qualifying investment. Except 
as otherwise provided in this paragraph (b)(1), to the extent a taxpayer 
described in the preceding sentence has an inclusion event described in 
Sec.  1.1400Z2(b)-1(c) with respect to any portion of a qualifying 
investment, that portion is no longer a qualifying investment and the 
taxpayer is not eligible to make an election pursuant to section 1400Z-
2(c) and this section with respect to that portion. See Sec.  
1.1400Z2(c)-1(b)(2) for special election rules for QOF partnerships and 
QOF S corporations.
    (ii) Transferee partnership to make an election under section 1400Z-
2(c)--(A) In general. This paragraph (b)(1)(ii)(A) applies if an 
eligible taxpayer (transferor) transfers its qualifying investment to a 
transferee in a transaction described in Sec.  1.1400Z2(b)-1(c)(6)(ii) 
to the extent governed by section 721(a). If this paragraph 
(b)(1)(ii)(A) applies, and if the transferee sells or exchanges a 
qualifying investment that has a holding period of at least 10 years 
under Sec.  1.1400Z2(b)-1(d)(1)(ii)(F), then the transferee can make an 
election described in section 1400Z-2(c) on the sale or exchange of the 
qualifying investment. See Sec.  1.1400Z2(b)-1(c)(6)(ii)(B) (transferee 
partnership makes section 1400Z-2(c) election regarding contributed 
qualifying investment).
    (B) Conditions for transferee partnership or merged partnership to 
make an election described in section 1400Z-2(c). A transferee referred 
to in paragraph (b)(1)(ii)(A) of this section is eligible to make an 
election described in section 1400Z-2(c) with respect to a qualifying 
investment only if the transferee:
    (1) Files a statement, at the time and in the manner that the 
Commissioner of Internal Revenue may prescribe by

[[Page 1033]]

Internal Revenue Service forms and instructions or by publication in the 
Internal Revenue Bulletin (see Sec.  601.601(d)(ii)(b) of this chapter), 
providing the name of the transferor, the date of the transfer, and the 
transferor's holding period in the transferred qualifying investment 
immediately before the transfer; and
    (2) Files form 8997, Initial and Annual Statement of Qualified 
Opportunity Fund (QOF) Investments, with the transferee's timely filed 
Federal Tax Return.
    (iii) Limitation on the 10-year rule. As required by section 1400Z-
2(e)(1) (treatment of investments with mixed funds), section 1400Z-2(c) 
applies only to the portion of an investment in a QOF that is a 
qualifying investment. For rules governing the application of section 
1400Z-2(c) to the portion of an investment in a QOF for which a loss has 
been claimed under section 165(g) or otherwise, see Sec.  1.1400Z2(b)-
1(c)(14).
    (iv) Transactions to which section 301(c)(3), section 1059(a)(2), or 
section 1368(b)(2) or (c)(3) applies. The receipt of amounts treated as 
gain from the sale or exchange of property under section 301(c)(3), 
section 1059(a)(2), or section 1368(b)(2) or (c)(3) with respect to 
qualifying QOF stock in a transaction treated as an inclusion event 
under Sec.  1.1400Z2(b)-1(c) does not prevent the QOF shareholder from 
making a subsequent election described in section 1400Z-2(c) with 
respect to that qualifying QOF stock.
    (v) Partnership distributions in excess of basis. The occurrence of 
an inclusion event described in Sec.  1.1400Z2(b)-1(c)(6)(iii), which 
addresses a distribution of property by a QOF partnership to a QOF 
partner where the distributed property has a fair market value in excess 
of the QOF partner's basis in its qualifying investment, does not 
prevent the QOF partner from making a subsequent election described in 
section 1400Z-2(c) with respect to the QOF partner's qualifying QOF 
partnership interest.
    (2) Special election rules for QOF partnerships and QOF S 
corporations--(i) Dispositions of qualifying QOF partnership interests. 
If a QOF partner's basis in a qualifying QOF partnership interest is 
adjusted under section 1400Z-2(c) upon the disposition of a qualifying 
investment, then the basis of the QOF partnership interest is adjusted 
to an amount equal to the net fair market value of the interest, plus 
the QOF partner's share of QOF partnership indebtedness under section 
752 with respect to that interest, and immediately prior to the sale or 
exchange, the bases of the assets of the QOF partnership and of any 
partnership owned directly or indirectly by the QOF partnership solely 
through one or more partnerships are also adjusted with respect to the 
disposed-of qualifying investment. For purposes of this paragraph 
(b)(2)(i), section 7701(g) will apply in determining the value of a 
qualifying investment in a QOF partnership. The adjustments in this 
paragraph (b)(2)(i) are calculated in a manner similar to the section 
743(b) adjustments that would have been made if the transferor QOF 
partner had purchased its interest in the QOF partnership for cash equal 
to the fair market value of the interest immediately prior to the sale 
or exchange, assuming that valid section 754 elections had been in place 
with respect to the QOF partnership and any partnerships directly or 
indirectly owned by the QOF partnership, whether or not an actual 
section 754 election is in place for any of the partnerships. This 
paragraph (b)(2)(i) applies without regard to the amount of deferred 
gain that was included under section 1400Z-2(b)(1) or the timing of that 
inclusion.
    (ii) Sales or exchanges of QOF property by QOF partnerships or QOF S 
corporations--(A) Election to exclude gains and losses. If a taxpayer 
has held a qualifying investment in a QOF partnership or QOF S 
corporation for at least 10 years, as determined under Sec.  
1.1400Z2(b)-1(d), and the QOF partnership or QOF S corporation or any 
partnership that is owned directly, or indirectly solely through one or 
more partnerships, by the QOF partnership or QOF S corporation sells or 
exchanges property, the taxpayer may make an election under this 
paragraph (b)(2)(ii)(A) to exclude from the taxpayer's income all gains 
and losses allocable to the qualifying investment that arise from all 
such sales or exchanges for the QOF partnership's or QOF S corporation's 
taxable year. In

[[Page 1034]]

order for the election to be valid, the requirements set forth in 
paragraph (b)(2)(ii)(B) of this section must be satisfied. For purposes 
of paragraph (b)(2)(ii) of this section, gains and losses include all 
gains and losses other than gains or losses from the sale or exchange of 
any item of inventory, as defined in section 1221(a)(1), in the ordinary 
course of business.
    (B) Deemed distribution and recontribution--(1) In general. If any 
partner of a QOF partnership, or shareholder of a QOF S corporation, 
makes an election under paragraph (b)(2)(ii)(A) of this section, the 
taxpayer is treated as receiving a distribution of cash as calculated 
under paragraph (b)(2)(ii)(B)(2) of this section, from the QOF 
partnership or QOF S corporation at the end of the QOF partnership's or 
QOF S corporation's taxable year and immediately recontributing the cash 
to the QOF partnership or QOF S corporation in exchange for a non-
qualifying investment in the QOF partnership or QOF S corporation. In 
determining the post-contribution qualifying investment and non-
qualifying investment, the QOF will value each interest based on the 
underlying values of the QOF's assets determined at the end of its 
taxable year in accordance with the principles of Sec.  1.704-
1(b)(2)(iv) (in the case of a QOF partnership) or fair market value (in 
the case of a QOF S corporation). If the QOF partner or QOF S 
corporation shareholder is a mixed-funds partner or shareholder prior to 
the sale or exchange, the deemed distribution will be treated as made 
proportionately with respect to the partner's or shareholder's 
qualifying investment and non-qualifying investment in the QOF 
partnership in accordance with Sec.  1.1400Z2(b)-1(c)(6)(iv)(B), or the 
QOF S corporation. The distribution and recontribution rule of paragraph 
(b)(2)(ii)(B) of this section is solely for purposes of determining the 
taxpayer's interests in the QOF partnership or QOF S corporation that 
constitute a qualifying investment and a non-qualifying investment, and 
has no other Federal income tax consequence (for example, the rule does 
not affect the accumulated adjustments account of an S corporation and 
cannot be treated as a disproportionate distribution by an S 
corporation).
    (2) Amount of deemed distribution and re-contribution. The amount of 
cash referred to in paragraph (b)(2)(ii)(B)(1) of this section that is 
deemed distributed by and recontributed to the QOF partnership or QOF S 
corporation is equal to--
    (i) The partner's or shareholder's share of net proceeds from all 
sales and exchanges of property described in paragraph (b)(2)(ii)(A) of 
this section (other than sales of inventory in the ordinary course of 
business) for the taxable year for which the election under paragraph 
(b)(2)(ii)(A) is made (calculated without regard to whether any gain or 
loss is recognized with regard to such property); less
    (ii) All actual distributions of cash by the QOF partnership or QOF 
S corporation with respect to any such sale or exchange that is made 
within 90 days of the sale or exchange.
    (3) Meaning of net proceeds--(i) QOF partnerships. For purposes of 
paragraph (b)(2)(ii)(B)(2)(i) of this section, with respect to QOF 
partnerships, the term ``net proceeds'' means the amount realized from 
the sale of property described in paragraph (b)(2)(ii)(A) of this 
section less any indebtedness included in the amount realized that would 
constitute a qualified liability under Sec.  1.707-5(a)(6) if the sold 
or exchanged property had been contributed to a lower-tier partnership 
subject to the debt.
    (ii) QOF S corporations. For purposes of paragraph 
(b)(2)(ii)(B)(2)(i) of this section, with respect to QOF S corporations, 
the term ``net proceeds'' means the amount realized from the sale of 
property described in paragraph (b)(2)(ii)(A) of this section less any 
indebtedness included in the amount realized that would constitute a 
qualified liability under the principles of Sec.  1.707-5(a)(6).
    (C) Treatment as exempt income--(1) General rule. With respect to 
the taxpayer making an election under paragraph (b)(2)(ii) of this 
section, the excess of any gains over losses excluded from income under 
paragraph (b)(2)(ii) of this section is treated as income of the 
partnership or S corporation that is exempt from tax under the Internal 
Revenue Code for purposes of section

[[Page 1035]]

705(a)(1)(B) or section 1367(a)(1)(A). Section 265 or any similar 
provisions do not apply to disallow any deductions otherwise allowable 
under subtitle A for amounts paid or incurred by a taxpayer that are 
allocable to any gain excluded from income under paragraph (b)(2)(ii) of 
this section.
    (2) Special rule regarding accumulated adjustments account. Solely 
for purposes of determining whether an adjustment must be made to the 
accumulated adjustments account of an S corporation, the excess amount 
described in paragraph (b)(2)(ii)(C)(1) of this section is not treated 
as tax exempt income.
    (D) Time and manner of making the election to exclude gain. An 
election under paragraph (b)(2)(ii)(A) of this section is made by filing 
the applicable form with the taxpayer's timely filed income tax return, 
without extensions, for its taxable year that includes the taxable year 
end of the QOF partnership or QOF S corporation. A taxpayer must make 
the election under paragraph (b)(2)(ii)(A) of this section for each 
taxable year in which it wishes to exclude gains and losses of a QOF 
partnership or QOF S corporation.
    (3) Basis adjustments upon sale or exchange of qualifying QOF 
stock--(i) In general. Except as provided in paragraph (b)(3)(ii) of 
this section, if a QOF shareholder's basis in qualifying QOF stock is 
adjusted under section 1400Z-2(c), then the basis of the qualifying QOF 
stock is adjusted to an amount equal to the fair market value of the 
qualifying QOF stock immediately prior to the sale or exchange. This 
paragraph (b)(3)(i) applies without regard to the amount of deferred 
gain that was included under section 1400Z-2(b)(1) or the timing of that 
inclusion.
    (ii) Specific application to transactions to which section 
301(c)(3), section 1059(a)(2), or section 1368(b)(2) or (c)(3) applies--
(A) Applicability. This paragraph (b)(3)(ii) applies if a QOF 
corporation makes a distribution to a QOF shareholder, at least a 
portion of the distribution would be characterized as gain from a sale 
or exchange under section 301(c)(3), section 1059(a)(2), or section 
1368(b)(2) or (c)(3) with respect to the QOF shareholder's qualifying 
QOF stock without regard to any basis adjustment under section 1400Z-
2(c), and the QOF shareholder elects to adjust the basis of its 
qualifying QOF stock under section 1400Z-2(c).
    (B) Ordering rule. If paragraph (b)(3)(ii) of this section applies 
with respect to a QOF corporation, the QOF shareholder increases its 
basis by the lesser of the amount of the distribution characterized as 
gain from a sale or exchange or the fair market value of the QOF 
shareholder's qualifying QOF stock before determining the Federal income 
tax consequences of the distribution.
    (c) Extension of availability of the election described in section 
1400Z-2(c). The ability to make an election under section 1400Z-2(c) for 
investments held for at least 10 years is not impaired solely because, 
under section 1400Z-1(f), the designation of one or more qualified 
opportunity zones ceases to be in effect. The preceding sentence does 
not apply to elections under section 1400Z-2(c) that are related to 
dispositions occurring after December 31, 2047.
    (d) Examples. The following examples illustrate the principles of 
paragraphs (a) through (c) of this section.

    (1) Example 1--(i) Facts. In 2020, taxpayer A invests $100 in QOF S, 
a QOF S corporation, in exchange for a qualifying investment and defers 
$100 of gain. At the end of 2028, the qualified opportunity zone 
designation expires for the population census tract in which QOF S 
primarily conducts its trade or business. In 2031, A sells all of its 
QOF S shares, realizes gain, and makes an election to increase the 
qualifying basis in its QOF S shares to fair market value. But for the 
expiration of the designated zones in section 1400Z-1(f), QOF S and A's 
conduct is consistent with continued eligibility to make the election 
under section 1400Z-2(c).
    (ii) Analysis. Under paragraph (c) of this section, although the 
designation expired on December 31, 2028, the expiration of the zone's 
designation does not, without more, invalidate A's ability to make an 
election under section 1400Z-2(c). Accordingly, pursuant to that 
election, A's basis in the QOF stock is increased to its fair market 
value and A recognizes no gain or loss on the sale.
    (2) Example 2--(i) Facts. In 2019, taxpayer A realizes $100 of 
eligible gain and contributes $100 to a QOF partnership, X, in exchange 
for a qualifying QOF partnership interest in X, and taxpayer B 
contributes $100 of eligible gain to another QOF partnership, Y, in 
exchange for a qualifying QOF partnership interest in Y. In 2021, in 
transactions governed

[[Page 1036]]

by section 721(a), A contributes her qualifying QOF partnership interest 
in X, and B contributes her qualifying QOF partnership interest in Y, to 
a newly formed partnership, UTP. In 2024, C receives a profits interest 
in UTP for services that she will provide to UTP. In 2031, X sells a 
non-inventory asset and allocates X's distributive share of the gain to 
UTP. No distributions are ever made from X, Y, or UTP.
    (ii) Analysis. On December 31, 2026, UTP recognizes $170 of 
remaining deferred gain relating to the QOF interests. Of that gain, A 
is allocated the $85 of gain relating to the $100 of eligible gain that 
she invested in X, and B is allocated the $85 of gain relating to the 
$100 of eligible gain that she invested in Y. C recognizes no gain at 
this time. In 2031, because UTP's holding period in X includes A's 
holding period in X, UTP has a holding period in X that exceeds 10 
years, and may make an election under Sec.  1.1400Z2(c)-1(b)(2)(ii)(A) 
to exclude the gain from X's asset sale. Even though A was the original 
investor in X, she may not make the election. If UTP makes the election, 
UTP will exclude its distributive share of gain from the sale of the X 
asset.
    (3) Example 3--(i) Facts. In 2019, taxpayer B invests $100 in P, a 
QOF partnership, in exchange for a qualifying investment and properly 
makes an election under section 1400Z-2(a) to defer $100 of eligible 
gain. B's interest in the partnership is 50 percent. In 2030, when B's 
interest in P has a value of $130 and a basis of $100, B sells the 
interest, recognizing $30 of gain, $15 of which is attributable to 
inventory assets of P. B makes an election under section 1400Z-2(c) with 
respect to the sale.
    (ii) Analysis. Because B's election under section 1400Z-2(c) is in 
effect with respect to the sale, the bases of B's interest in P and of 
P's assets with respect to the interest sold are adjusted to fair market 
value immediately before B's sale under paragraph (b)(2)(i) of this 
section, and B recognizes no gain or loss on the sale.
    (4) Example 4--(i) Facts. The facts are the same as in paragraph 
(d)(3) of this section (Example 3), except that P sells qualified 
opportunity zone property that is not inventory sold in the ordinary 
course of business and distributes all of the proceeds from the sale to 
partners within 90 days of the sale (the qualified opportunity zone 
property was the only property sold by P in the taxable year). The sold 
property has a value of $60 and a basis of $40. P recognizes $20 of 
gain, $10 of which is allocable to B, and B makes an election under 
paragraph (b)(2)(ii)(A) of this section for the year in which B's 
allocable share of the partnership's recognized gain would be included 
in B's gross income.
    (ii) Analysis. Because B's election under paragraph (b)(2)(ii)(A) of 
this section is in effect, B will exclude its entire $10 allocable share 
of the partnership's $20 of recognized gain. Because $10 of the sale 
proceeds were actually distributed to B within 90 days of the sale, P is 
not treated as making a deemed distribution and receiving a 
recontribution under paragraph (b)(2)(ii)(B) of this section with 
respect to B.
    (5) Example 5--(i) Facts. In 2019, taxpayer C invests $100 in Q, a 
QOF partnership, in exchange for a qualifying investment and properly 
makes an election under section 1400Z-2(a) to defer $100 of eligible 
gain. C's interest in Q is 50%. Q's taxable year ends on December 31. In 
2025, Q purchases three qualified opportunity zone properties, X, Y, and 
Z. On January 22, 2031, Q sells property X for $200, recognizing $140 of 
gain. On July 31, 2031, Q sells property Y for $80, recognizing $20 of 
loss. Q makes no distributions to its partners in 2031, has no 
indebtedness, and has no other gain or loss other than from the sales of 
properties X and Y. Property Z has a value of $280 at all times 
throughout 2031. C's share of Q's gain and loss is $70 and $10, 
respectively, for a net gain of $60, and C makes an election under 
paragraph (b)(2)(ii)(A) of this section to exclude the gains and losses 
from its income.
    (ii) Analysis. Because C has made an election under paragraph 
(b)(2)(ii)(A) of this section, under paragraph (b)(2)(ii)(B) of this 
section, C is treated as receiving a cash distribution of $140 from Q, 
C's share of the net proceeds from the sales of properties X and Y, on 
December 31, 2031, and immediately recontributing $140 to Q in exchange 
for a non-qualifying investment in Q. Beginning on January 1, 2032, 50 
percent of A's interest in Q is a qualifying investment, and 50 percent 
of A's investment in Q is a non-qualifying investment. This amount is 
calculated as a fraction, the numerator of which is $140, the amount 
deemed distributed and recontributed, and the denominator of which is 
$280, the value of C's interest prior to the deemed distribution.
    (6) Example 6--(i) Facts. The facts are the same as in paragraph 
(d)(5) of this section (Example 5), except that Q distributes all of the 
proceeds from the sale of property X to its partners on March 30, 2031. 
Q does not make any distribution of proceeds from the sale of property 
Y.
    (ii) Analysis. Under paragraph (b)(2)(iii)(B)(2)(ii) of this 
section, the actual distribution of cash to C on March 30, 2031, reduces 
the amount of the deemed distribution and recontribution with respect to 
C on December 31, 2031. Accordingly, the amount of C's deemed 
distribution and recontribution is $40, which increases C's non-
qualifying investment to 22 percent. This amount is calculated as a 
fraction, the numerator of which is $40, the amount deemed distributed 
and recontributed, and the denominator of which is $180, the value of 
C's interest.

[[Page 1037]]

    (7) Example 7. Section 301(c)(3) gain--(i) Facts. In 2020, taxpayer 
X makes an investment in Q, a QOF corporation, in exchange for a 
qualifying investment. In 2031, when X's qualifying Q stock is worth 
$1000x, Q makes a distribution to X with respect to X's qualifying QOF 
stock, $500x of which is treated as gain from a sale or exchange under 
section 301(c)(3). In 2032, X disposes of all of its qualifying QOF 
stock in Q.
    (ii) Analysis--(A) Section 301(c)(3) distribution. X is eligible to 
make an election described in section 1400Z-2(c) in 2031 with respect to 
its $500x gain. Under paragraph (b)(3)(ii) of this section, the basis 
adjustment is $500x, the lesser of $500x, the amount of the distribution 
treated as gain from the sale or exchange of property, and $1000x, the 
fair market value of the qualifying QOF stock before the distribution. 
As a result of the election, X increases its basis in its qualifying QOF 
stock in Q by $500x immediately before the distribution; consequently, 
the $500x is treated as a return of basis under section 301(c)(2).
    (B) Disposition of qualifying QOF stock. X is eligible to make an 
election described in section 1400Z-2(c) in 2032 with respect to all of 
its qualifying QOF stock in Q, notwithstanding X's receipt of a section 
301(c)(3) distribution in 2031. See paragraph (b)(1)(iv) of this 
section.

    (e) Capital gain dividends paid by a QOF RIC or QOF REIT that some 
shareholders may be able to elect to receive tax free under section 
1400Z-2(c)--(1) Eligibility. For purposes of paragraph (b) of this 
section, if a shareholder of a QOF RIC or QOF REIT receives a capital 
gain dividend identified with a date, as defined in paragraph (e)(2) of 
this section, then, to the extent that the shareholder's shares in the 
QOF RIC or QOF REIT paying the capital gain dividend are a qualifying 
investment in the QOF RIC or QOF REIT--
    (i) The shareholder may treat the capital gain dividend, or part 
thereof, as gain from the sale or exchange of a qualifying investment on 
the date that the QOF RIC or QOF REIT identified with the dividend; and
    (ii) If, on the date identified, the shareholder had held that 
qualifying investment in the QOF RIC or QOF REIT for at least 10 years, 
then the shareholder may exclude that capital gain dividend, or part 
thereof, from its taxable income for the taxable year.
    (2) Definition of capital gain dividend identified with a date. A 
capital gain dividend identified with a date means an amount of a 
capital gain dividend, as defined in section 852(b)(3)(C) or 
857(b)(3)(B), or part thereof, and a date that the QOF RIC reports or 
QOF REIT designates in a notice provided to the shareholder not later 
than one week after the QOF RIC reports or QOF REIT designates the 
capital gain dividend pursuant to section 852(b)(3)(C) or 857(b)(3)(B). 
The notice must be mailed to the shareholder unless the shareholder has 
provided the QOF RIC or QOF REIT with an email address to be used for 
this purpose. In the manner and at the time determined by the 
Commissioner, the QOF RIC or QOF REIT must provide the Commissioner all 
data that the Commissioner specifies with respect to the amounts of 
capital gain dividends and the dates reported or designated by the QOF 
RIC or QOF REIT for each shareholder.
    (3) General limitations on the amounts of capital gain with which a 
date may be identified--(i) No identification in the absence of any 
capital gains with respect to qualified opportunity zone property. If, 
during its taxable year, the QOF RIC or QOF REIT did not recognize long-
term capital gain on any sale or exchange of qualified opportunity zone 
property, then no date may be identified with any capital gain 
dividends, or parts thereof, with respect to that year.
    (ii) Proportionality. Reportings and designations of capital gain 
dividends identified with a date must be proportional for all capital 
gain dividends paid with respect to the taxable year. See section 
857(g)(2). Greater than de minimis violation of proportionality 
invalidates all of the purported identifications for a taxable year.
    (iii) Undistributed capital gains. If section 852(b)(3)(D)(i) or 
857(b)(3)(C)(i) requires a shareholder of a QOF RIC or QOF REIT to 
include a reported or designated amount in the shareholder's long-term 
capital gain for a taxable year, then inclusion of this amount in this 
manner is treated as receipt of a capital gain for purposes of this 
paragraph (e) and may be identified with a date.
    (iv) Gross gains. The amount determined under paragraph (e)(4) of 
this section is determined without regard to any losses that may have 
been recognized on other sales or exchanges of

[[Page 1038]]

qualified opportunity zone property. The losses do, however, limit the 
total amount of capital gain dividends that may be reported or 
designated under section 852(b)(3) or section 857(b)(3).
    (4) Determination of the amount of capital gain with which a date 
may be identified. A QOF RIC or QOF REIT may choose to identify the date 
for an amount of capital gain in one of the following manners:
    (i) Simplified determination. If, during its taxable year, the QOF 
RIC or QOF REIT recognizes long-term capital gain on one or more sales 
or exchanges of qualified opportunity zone property, then the QOF RIC or 
QOF REIT may identify the first day of that taxable year as the date 
identified with each reported or designated amount with respect to the 
capital gain dividends for that taxable year. A reported or designated 
identification is invalid in its entirety if the amount of gains that 
the QOF RIC or QOF REIT identifies with that date exceeds the aggregate 
long-term capital gains recognized on those sales or exchanges for that 
taxable year.
    (ii) Sale date determination--(A) In general. If, during its taxable 
year, the QOF RIC or QOF REIT recognizes long-term capital gain on one 
or more sales or exchanges of qualified opportunity zone property, then 
the QOF RIC or QOF REIT may identify capital gain dividends, or a part 
thereof, with the latest date on which there was such a recognition. The 
amount of capital gain dividends so identified must not exceed the 
aggregate long-term capital gains recognized on that date from sales or 
exchanges of qualified opportunity zone property. A reported or 
designated identification is invalid in its entirety if the amount of 
gains that the QOF RIC or QOF REIT identifies with that date violates 
the preceding sentence.
    (B) Iterative application. The process described in paragraph 
(e)(4)(ii)(A) of this section is applied iteratively to increasingly 
earlier transaction dates (from latest to earliest) until all capital 
gain dividends are identified with dates or there are no earlier dates 
in the taxable year on which the QOF RIC or QOF REIT recognized long-
term capital gains with respect to a sale or exchange of qualified 
opportunity zone property, whichever comes first.
    (f) Applicability dates. The provisions of this section are 
applicable for taxable years beginning after March 13, 2020.

[T.D. 9889, 85 FR 1974, Jan. 13, 2020; 85 FR 19083, Apr. 6, 2020]



Sec.  1.1400Z2(d)-1  Qualified opportunity funds and qualified 
opportunity zone businesses.

    (a) Overview. This section provides rules that an eligible entity 
(as defined in paragraph (a)(1) of this section) must satisfy to be a 
qualified opportunity fund (QOF) or a qualified opportunity zone 
business. Paragraphs (a)(2) through (4) of this section provide rules 
that eligible entities must follow to be certified as QOFs, as well as 
rules for the de-certification of QOFs. Paragraph (b) of this section 
provides rules for determining whether the property held by a QOF 
satisfies the 90-percent investment standard of section 1400Z-2(d)(1) or 
the property held by a qualified opportunity zone business satisfies the 
70-percent tangible property standard of section 1400Z-2(d)(3)(A)(i). 
Paragraph (c) of this section provides rules regarding qualified 
opportunity zone property that a QOF must hold to satisfy the 90-percent 
investment standard. Paragraph (d) of this section provides rules that 
an eligible entity must satisfy to be a qualified opportunity zone 
business that is owned, in whole or in part, by one or more QOFs. 
Paragraph (e) of this section provides applicability dates for this 
section. See Sec.  1.1400Z2(d)-2 for rules that must be satisfied for 
tangible property of an eligible entity to be treated as qualified 
opportunity zone business property.
    (1) Eligible entity--(i) In general. Except as provided in paragraph 
(a)(1)(ii) of this section, the term eligible entity means an entity 
that is classified as a corporation or partnership for Federal income 
tax purposes. In order to be treated as a QOF, an eligible entity must 
self-certify on an annual basis that it satisfies the requirements of 
paragraphs (b) and (c) of this section, as appropriate. An eligible 
entity is a qualified opportunity zone business if it satisfies the 
requirements of paragraph (d) of this section.

[[Page 1039]]

    (ii) Exceptions based on where an entity is created, formed, or 
organized--(A) QOFs. An entity classified as a corporation or 
partnership for Federal income tax purposes (an entity) but that is not 
organized under the law of the United States or the law of one of the 50 
states, a government of a federally recognized tribe (Indian tribal 
government), the District of Columbia, or a U.S. territory, is not an 
eligible entity and is ineligible to be a QOF. An entity described in 
the preceding sentence is also ineligible to be a qualified opportunity 
zone business, and therefore an equity interest in the entity is neither 
qualified opportunity zone stock nor a qualified opportunity zone 
partnership interest for purposes of section 1400Z-2(d)(2).
    (B) Entities organized in a U.S. territory--(1) In general. If an 
entity is organized in a U.S. territory but not in one of the 50 States 
or the District of Columbia, the entity may be a QOF only if the entity 
is organized for investing in qualified opportunity zone property that 
relates to a trade or business operated in the U.S. territory in which 
the entity is organized. If an entity is organized in a U.S. territory 
but not in one of the 50 States or the District of Columbia, an equity 
interest in the entity may be qualified opportunity zone stock or a 
qualified opportunity zone partnership interest, as the case may be, 
only if the entity conducts a qualified opportunity zone business in the 
U.S. territory in which the entity is organized. An entity described in 
the preceding sentence is treated as satisfying the requirement, as 
applicable, of being a domestic corporation for purposes of section 
1400Z-2(d)(2)(B)(i) or of being a domestic partnership for purposes of 
section 1400Z-2(d)(2)(C).
    (2) U.S. territory defined. For purposes of this paragraph (a)(1), 
the term U.S. territory means American Samoa, Guam, the Commonwealth of 
the Northern Mariana Islands, the Commonwealth of Puerto Rico, the U.S. 
Virgin Islands, and any other territory not under the jurisdiction of 
one of the 50 States, an Indian tribal government, or the District of 
Columbia where a qualified opportunity zone has been designated under 
section 1400Z-1.
    (iii) Pre-existing entities. There is no legal barrier to a pre-
existing eligible entity qualifying as a QOF or a qualified opportunity 
zone business, but the pre-existing eligible entity must satisfy all of 
the applicable requirements of section 1400Z-2, this section, and Sec.  
1.1400Z2(d)-2.
    (2) Self-certification as a QOF. The following rules apply to the 
required self-certification of an eligible entity as a QOF:
    (i) Time, form, and manner. The self-certification must be timely-
filed and effected annually in such form and manner as may be prescribed 
by the Commissioner of Internal Revenue (Commissioner) in the Internal 
Revenue Service (IRS) forms or instructions, or in publications or 
guidance published in the Internal Revenue Bulletin (see Sec. Sec.  
601.601(d)(2) and 601.602 of this chapter).
    (ii) First taxable year. The self-certification must identify the 
first taxable year for which the self-certification takes effect.
    (iii) First month. The self-certification may identify the first 
month (in that initial taxable year) in which the self-certification 
takes effect.
    (A) Failure to specify first month. If the self-certification fails 
to specify the month in the initial taxable year that the self-
certification takes effect, then the self-certification is treated as 
taking effect in the first month of that taxable year.
    (B) Investments before entity's first month as QOF not eligible for 
deferral. If an investment in eligible interests of an eligible entity 
occurs prior to the eligible entity's first month as a QOF, any election 
under section 1400Z-2(a)(1) made for that investment is invalid and the 
investment is a non-qualifying investment.
    (iv) Becoming a QOF in a month that is not the first month of the 
taxable year. This paragraph (a)(2)(iv) applies to an eligible entity if 
its self-certification as a QOF is first effective for a month that is 
not the first month of that entity's taxable year.
    (A) For purposes of applying section 1400Z-2(d)(1)(A) and (B) in the 
first year of the QOF's existence, the phrase first six-month period of 
the taxable year of the fund means the first six months

[[Page 1040]]

each of which is in the taxable year and in each of which the entity is 
a QOF. Thus, if an eligible entity becomes a QOF in the seventh or later 
month of a 12-month taxable year, the 90-percent investment standard in 
section 1400Z-2(d)(1) takes into account only the QOF's assets on the 
last day of the QOF's taxable year.
    (B) The computation of any penalty under section 1400Z-2(f)(1) does 
not take into account any months before the first month in which an 
eligible entity is a QOF.
    (3) Self decertification of a QOF. If a QOF chooses to decertify as 
a QOF, the self-decertification must be effected in such form and manner 
as may be prescribed by the Commissioner in IRS forms or instructions or 
in publications or guidance published in the Internal Revenue Bulletin 
(see Sec. Sec.  601.601(d)(2) and 601.602 of this chapter.)
    (4) [Reserved]
    (b) Valuation of property for purposes of the 90-percent investment 
standard and the 70-percent tangible property standard--(1) In general. 
An eligible entity may value its owned or leased property using the 
valuation methods provided in paragraphs (b)(3) and (4) of this section 
to determine whether--
    (i) In the case of an eligible entity that has self-certified as a 
QOF, the assets owned or leased by the QOF satisfy the 90-percent 
investment standard in section 1400Z-2(d)(1); and
    (ii) In the case of an eligible entity that has issued qualified 
opportunity zone partnership interests or qualified opportunity zone 
stock to a QOF, the tangible property owned or leased by the eligible 
entity satisfies the 70-percent tangible property standard in section 
1400Z-2(d)(3)(A)(i).
    (2) Special rules--(i) QOFs--(A) In general. To meet the 90-percent 
investment standard in section 1400Z-2(d)(1), on a semiannual basis, a 
QOF may value its assets using the applicable financial statement 
valuation method set forth in paragraph (b)(3) of this section, if the 
QOF has an applicable financial statement within the meaning of Sec.  
1.475(a)-4(h), or the alternative valuation method set forth in 
paragraph (b)(4) of this section. During each taxable year, a QOF must 
apply consistently the valuation method that it selects under paragraph 
(b) of this section to all assets valued with respect to the taxable 
year.
    (B) Option for QOFs to disregard recently contributed property. A 
QOF may choose to determine compliance with the 90-percent investment 
standard by excluding from both the numerator and denominator of the 
test any property that satisfies all the criteria in paragraphs 
(b)(2)(i)(B)(1) through (3) of this section. A QOF need not be 
consistent from one semiannual test to another in whether it avails 
itself of the option in this paragraph (b)(2)(i)(B).
    (1) The amount of the property was received by the QOF partnership 
as a contribution or by the QOF corporation solely in exchange for stock 
of the corporation;
    (2) The contribution or exchange occurred not more than 6 months 
before the test from which it is being excluded; and
    (3) Between the date of the fifth business day after the 
contribution or exchange and the date of the semiannual test, the amount 
was held continuously in cash, cash equivalents, or debt instruments 
with a term of 18 months or less.
    (C) Safe harbor for QOFs to determine whether equity in an entity is 
qualified opportunity zone property. A QOF may choose to determine 
compliance with the 90-percent investment standard for each semiannual 
testing date of the QOF by including in both the numerator and 
denominator of the test the equity of each entity the QOF holds on that 
testing date that satisfies all the criteria in paragraph 
(b)(2)(i)(C)(1) or (2) of this section.
    (1) The entity was a qualified opportunity zone business for at 
least 90 percent of the QOF's cumulative holding period for that equity 
of the entity--
    (i) Beginning on the date the QOF's self-certification as a QOF is 
first effective; and
    (ii) Ending on the last day of the entity's most recent taxable year 
ending on or before the semiannual testing date of the QOF.
    (2) An entity that would not be a qualified opportunity zone 
business as of the end of its last taxable year ending on or before a 
semiannual testing

[[Page 1041]]

date of the QOF is a qualified opportunity zone business with respect to 
the QOF for that taxable year of the entity if--
    (i) A cure is achieved for the entity under paragraph (d)(6) of this 
section; and
    (ii) The QOF files its Federal income tax return for the taxable 
year of the QOF containing the testing date on a date that is timely 
(taking extensions into account) and that is not earlier than when that 
cure is achieved.
    (ii) Qualified opportunity zone businesses--(A) In general. For 
purposes of the fraction set forth in paragraph (d)(2)(ii)(A) of this 
section, the owned or leased tangible property of a qualified 
opportunity zone business may be valued using the applicable financial 
statement valuation method set forth in paragraph (b)(3) of this 
section, if the qualified opportunity zone business has an applicable 
financial statement within the meaning of Sec.  1.475(a)-4(h), or the 
alternative valuation method set forth in paragraph (b)(4) of this 
section. During each taxable year, the valuation method selected under 
this paragraph (b) must be applied consistently to all tangible property 
valued with respect to the taxable year.
    (B) Five-percent zone taxpayer. If a taxpayer both has self-
certified as a QOF and holds an equity interest in an eligible entity 
that is tested as a qualified opportunity zone business, then that 
taxpayer may value the eligible entity's tangible property for purposes 
of satisfying the 70-percent tangible property standard using the same 
valuation methodology under this paragraph (b) that the taxpayer uses 
for determining its own compliance with the 90-percent investment 
standard (compliance methodology), provided that no other equity holder 
in the eligible entity is a five-percent zone taxpayer. If two or more 
taxpayers that have self-certified as QOFs hold equity interests in the 
eligible entity and at least one of them is a five-percent zone 
taxpayer, then the values of the eligible entity's tangible property may 
be calculated using the compliance methodology that both is used by a 
five-percent zone taxpayer and that produces the highest percentage of 
qualified opportunity zone business property for the eligible entity for 
purposes of the 70-percent tangible property standard. A five-percent 
zone taxpayer is a taxpayer that has self-certified as a QOF and that 
holds stock in the entity (if it is a corporation) representing at least 
5 percent in voting rights and value or holds an interest of at least 5 
percent in the profits and capital of the entity (if it is a 
partnership).
    (1) Example. The example in paragraph (b)(2)(ii)(B)(2) of this 
section illustrates the principles of paragraph (b)(2)(ii)(B) of this 
section.
    (2) Example. Entity JH is a corporation that has issued only one 
class of stock and that conducts a trade or business. Taxpayer X holds 
94% of the JH stock, and Taxpayer Y holds the remaining 6% of that 
stock. (Thus, both X and Y are five percent zone taxpayers within the 
meaning of paragraph (b)(2)(ii)(B) of this section.) JH does not have an 
applicable financial statement, and, for that reason, a determination of 
whether JH is conducting a qualified opportunity zone business may 
employ the compliance methodology of X or Y. X and Y use different 
compliance methodologies permitted under paragraph (b)(2)(i)(A) of this 
section for purposes of satisfying the 90-percent investment standard of 
section 1400Z-2(d)(1). Under X's compliance methodology (which is based 
on X's applicable financial statement), 65% of the tangible property 
owned or leased by JH's trade or business is qualified opportunity zone 
business property. Under Y's compliance methodology (which is based on 
Y's cost), 73% of the tangible property owned or leased by JH's trade or 
business is qualified opportunity zone business property. Because Y's 
compliance methodology would produce the higher percentage of qualified 
opportunity zone business property for JH (73%), both X and Y may use 
Y's compliance methodology to value JH's owned or leased tangible 
property. If JH's trade or business satisfies all additional 
requirements in section 1400Z-2(d)(3), the trade or business is a 
qualified opportunity zone business. Thus, if all of the additional 
requirements in section 1400Z-2(d)(2)(B) are satisfied, stock in JH is 
qualified opportunity zone stock

[[Page 1042]]

in the hands of a taxpayer that has self-certified as a QOF.
    (iii) Inventory. In determining whether the 90-percent investment 
standard in section 1400Z-2(d)(1) or the 70-percent tangible property 
standard in section 1400Z-2(d)(3)(A)(i) is satisfied, an eligible entity 
may choose to exclude from both the numerator and denominator of the 
applicable test the value of all inventory (including raw materials) of 
the trade or business, if applied consistently within a taxable year of 
the eligible entity.
    (3) Applicable financial statement valuation method--(i) In general. 
Under the applicable financial statement valuation method set forth in 
this paragraph (b)(3), the value of each property that is owned or 
leased by an eligible entity is the value of that asset as reported on 
the eligible entity's applicable financial statement for the relevant 
reporting period.
    (ii) Requirement for selection of method. An eligible entity may 
select the applicable financial statement valuation method set forth in 
this paragraph (b)(3) to value an asset leased by the eligible entity 
only if the applicable financial statement of the eligible entity is 
prepared according to U.S. generally accepted accounting principles 
(GAAP) and requires an assignment of value to the lease of the asset.
    (4) Alternative valuation method--(i) In general. Under the 
alternative valuation method set forth in this paragraph (b)(4), the 
value of the property owned by an eligible entity is calculated under 
paragraph (b)(4)(ii) of this section, and the value of the property 
leased by an eligible entity is calculated under paragraph (b)(4)(iii) 
of this section.
    (ii) Property owned by an eligible entity--(A) Property purchased or 
constructed. The value of each property owned by an eligible entity that 
is acquired by purchase for fair market value or constructed for fair 
market value is the eligible entity's unadjusted cost basis of the asset 
under section 1012 or section 1013. Solely for purposes of this 
paragraph (b)(4)(ii)(A), the acquisition by a QOF of qualified 
opportunity zone stock or a qualified opportunity zone partnership 
interest is treated as a purchase of such interest by the QOF.
    (iii) Property leased by an eligible entity--(A) In general. The 
value of each property that is leased by an eligible entity is equal to 
the present value of the leased property as defined in paragraph 
(b)(4)(iii)(C) of this section.
    (B) Discount rate. For purposes of calculating present value under 
paragraph (b)(4)(iii) of this section, the discount rate is the short-
term applicable Federal rate under section 1274(d)(1), based on 
semiannual compounding, for the month in which the eligible entity 
enters into the lease. For purposes of the preceding sentence, the three 
month rule in section 1274(d)(2) does not apply to determine the 
applicable Federal rate.
    (C) Present value. For purposes of paragraph (b)(4)(iii) of this 
section, present value of a leased property--
    (1) Is equal to the sum of the present values of each payment under 
the lease for the property;
    (2) Is calculated at the time the eligible entity enters into the 
lease for the property; and
    (3) Once calculated, is used as the value for the property by the 
eligible entity for all testing dates during the term of the lease for 
purposes of the 90-percent investment standard or the 70-perecent 
tangible property standard.
    (D) Term of a lease. For purposes of paragraph (b)(4)(iii) of this 
section, the term of a lease includes periods during which the lessee 
may extend the lease at a pre-defined market rate rent. For 
nonresidential real property or residential real property, pre-defined 
rent does not include the option to renew at fair market value, 
determined at the time of renewal. The terms of the pre-defined rent 
must satisfy the following criteria:
    (1) General rule. The terms of the pre-defined rent are market rate 
(that is, the terms of the pre-defined rent reflect common, arms-length 
market pricing in the locale that includes the qualified opportunity 
zone as determined under section 482 and all section 482 regulations in 
this chapter) at the time the lease is entered into.
    (2) Rebuttable presumption regarding leases not between related 
persons. There will be a rebuttable presumption that

[[Page 1043]]

the terms of the extension of the lease are market rate for leases not 
between related persons (within the meaning of section 1400Z-2(e)(2)), 
and thus, the parties to the lease are not required to perform a section 
482 analysis.
    (3) Exception for state, local, and Indian tribal governments. For 
purposes of this paragraph (b)(4)(iii)(D), tangible property acquired by 
lease from a state or local government, or an Indian tribal government, 
is not considered tangible property acquired by lease from a related 
person.
    (c) Qualified opportunity zone property--(1) In general. Pursuant to 
section 1400Z-2(d)(2)(A), the following property is qualified 
opportunity zone property:
    (i) Qualified opportunity zone stock as defined in paragraph (c)(2) 
of this section;
    (ii) Qualified opportunity zone partnership interest as defined in 
paragraph (c)(3) of this section; and
    (iii) Qualified opportunity zone business property as defined in 
Sec.  1.1400Z2(d)-2.
    (2) Qualified opportunity zone stock--(i) In general. Except as 
provided in paragraph (c)(2)(ii) of this section, if an eligible entity 
is classified as a corporation for Federal income tax purposes 
(corporation), then an equity interest (stock) in the eligible entity is 
qualified opportunity zone stock if the requirements described in this 
paragraph (c)(2)(i) are satisfied:
    (A) Date of acquisition. The stock is acquired by a QOF after 
December 31, 2017, at its original issue (directly or through an 
underwriter) from the corporation solely in exchange for cash;
    (B) Qualified opportunity zone business. As of the time the stock 
was issued, the corporation was a qualified opportunity zone business as 
defined in section 1400Z-2(d)(3) and paragraph (d) of this section (or, 
in the case of a new corporation, the corporation was being organized 
for purposes of being such a qualified opportunity zone business); and
    (C) 90-percent qualified opportunity zone property holding period--
(1) Cumulative holding period test. During at least 90 percent of the 
QOF's holding period for the corporation's stock, determined on a 
cumulative basis in accordance with paragraph (c)(2)(i)(C)(2) of this 
section, the corporation qualified as a qualified opportunity zone 
business.
    (2) Semiannual qualified opportunity zone business test. For 
purposes of determining satisfaction of the cumulative 90-percent 
qualified opportunity zone property holding period test described in 
paragraph (c)(2)(i)(C)(1) of this section, the determination of whether 
a corporation engaged in a trade or business qualifies as a qualified 
opportunity zone business may be made by the QOF on a semiannual basis 
pursuant to section 1400Z-2(d)(1). However, a QOF may choose to apply 
the safe harbor rule in paragraph (b)(2)(i)(C) of this section to make 
this determination.
    (ii) Redemptions of stock. Pursuant to section 1400Z-2(d)(2)(B)(ii), 
the following rules apply for purposes of determining whether stock in a 
corporation qualifies as qualified opportunity zone stock:
    (A) Redemptions from taxpayer or related person. Stock acquired by a 
QOF is not treated as qualified opportunity zone stock if, at any time 
during the 4-year period beginning on the date 2 years before the 
issuance of the stock, the corporation issuing the stock purchased 
either directly or indirectly any of its stock from the QOF or from a 
person related (within the meaning of section 1400Z-2(e)(2)) to the QOF. 
Even if the purchase occurs after the issuance, the stock was never 
qualified opportunity zone stock.
    (B) Significant redemptions--(1) In general. Stock issued by a 
corporation is not treated as qualified opportunity zone stock if, at 
any time during the 2-year period beginning on the date one year before 
the issuance of the stock, the corporation made one or more purchases of 
more than a de minimis amount of its stock and the purchased stock has 
an aggregate value (as of the time of the respective purchases) 
exceeding 5 percent of the aggregate value of all of its stock as of the 
beginning of the 2-year period. The aggregate value is determined as of 
the time of the stock purchases. Even if one or more of the 
disqualifying purchases occurs after the issuance, the stock was never 
qualified opportunity zone stock.
    (2) De minimis amount. For purposes of this paragraph (c)(2)(ii)(B), 
stock acquired from the taxpayer or a related

[[Page 1044]]

person exceeds a de minimis amount only if the aggregate amount paid for 
the stock exceeds $10,000 and more than 2 percent of the stock held by 
the taxpayer and related persons (within the meaning of section 1400Z-
2(e)(2)) is acquired. The rules in the following sentences of this 
paragraph (c)(2)(ii)(B)(2) apply for purposes of determining whether the 
2-percent limit is exceeded. The percentage of stock acquired in any 
single purchase is determined by dividing the stock's value (as of the 
time of purchase) by the value (as of the time of purchase) of all stock 
held (directly or indirectly) by the taxpayer and related persons 
immediately before the purchase. The percentage of stock acquired in 
multiple purchases is the sum of the percentages determined for each 
separate purchase.
    (C) Treatment of certain transactions. If any transaction is treated 
under section 304(a) as a distribution in redemption of the stock of any 
corporation, for purposes of paragraphs (c)(2)(ii)(A) and (B) of this 
section, that corporation is treated as purchasing an amount of its 
stock equal to the amount that is treated as such a distribution under 
section 304(a).
    (D) Principles of Sec.  1.1202-2(c) and (d). The principles of Sec.  
1.1202-2(c) and (d) apply in determining whether stock is redeemed or 
purchased for purposes of paragraph (c)(2)(ii) of this section.
    (iii) Reorganizations of corporations otherwise qualifying as 
qualified opportunity zone businesses--(A) Qualification as qualified 
opportunity zone stock. Stock that meets all of the requirements of 
paragraph (c)(2)(i) of this section except for the requirement in 
paragraph (c)(2)(i)(A) of this section is qualified opportunity zone 
stock if it is received solely in exchange for qualified opportunity 
zone stock in a transaction described in section 381(a)(2). The 
requirements in paragraphs (c)(2)(i)(B) and (C) of this section must be 
met with respect to both the stock held before such transaction and the 
stock for which it is exchanged in such transaction.
    (B) Satisfaction of original use and substantial improvement tests. 
The requirements of Sec.  1.1400Z2(d)-2 apply to property of a qualified 
opportunity zone business acquired from a qualified opportunity zone 
business in a transaction described in section 381(a)(2) as if the 
acquiring corporation had held the property during the period in which 
the target corporation held the property. For example, an item of 
property must be substantially improved by the same date by which the 
target corporation was required to satisfy the substantial improvement 
test for such property.
    (C) Reorganizations of qualified opportunity zone businesses within 
a consolidated group. See Sec. Sec.  1.1502-14Z and 1.1504-3 for special 
rules applicable to consolidated groups.
    (3) Qualified opportunity zone partnership interest--(i) In general. 
If an eligible entity is classified as a partnership for Federal tax 
purposes (partnership), any capital or profits interest (partnership 
interest) in the eligible entity is a qualified opportunity zone 
partnership interest if--
    (A) Date of acquisition. The partnership interest is acquired by a 
QOF after December 31, 2017, from the partnership solely in exchange for 
cash;
    (B) Qualified opportunity zone business. As of the time the 
partnership interest was acquired, the partnership was a qualified 
opportunity zone business as defined in section 1400Z-2(d)(3) and 
paragraph (d) of this section (or, in the case of a new partnership, the 
partnership was being organized for purposes of being a qualified 
opportunity zone business); and
    (C) 90-percent qualified opportunity zone property holding period--
(1) Cumulative holding period test. During at least 90-percent of the 
QOF's holding period for the partnership interest, determined on a 
cumulative basis in accordance with paragraph (c)(3)(i)(C)(2) of this 
section, the partnership qualified as a qualified opportunity zone 
business.
    (2) Semiannual qualified opportunity zone business test. For 
purposes of determining satisfaction of the cumulative 90-percent 
qualified opportunity zone property holding period test described in 
paragraph (c)(3)(i)(C)(1) of this section, the determination of whether 
a partnership engaged in a trade or business qualifies as a qualified 
opportunity zone business is made by the QOF on a semiannual basis 
pursuant to

[[Page 1045]]

section 1400Z-2(d)(1). However, a QOF may choose to apply the safe 
harbor rule in paragraph (b)(2)(i)(C) of this section to make this 
determination.
    (ii) Reorganizations of partnerships otherwise qualifying as 
qualified opportunity zone businesses--(A) Qualification as a qualified 
opportunity zone partnership interest. A partnership interest that meets 
all of the requirements of paragraph (c)(3)(i) of this section except 
for the requirement in paragraph (c)(3)(i)(A) of this section is a 
qualified opportunity zone partnership interest if it is received solely 
in exchange for a qualified opportunity zone partnership interest in a 
merger or consolidation transaction described in section 708(b)(2)(A). 
The requirements in paragraphs (c)(3)(i)(B) and (C) of this section must 
be met with respect to both the partnership interest held before the 
transaction and the partnership interest for which it is exchanged in 
the transaction.
    (B) Satisfaction of original use and substantial improvement tests. 
The requirements of Sec.  1.1400Z2(d)-2 apply to property of a qualified 
opportunity zone business acquired from a qualified opportunity zone 
business in a transaction described in section 708(b)(2)(A) as if the 
resulting partnership had held the property during the period in which 
the merging or consolidating partnership held the property. For example, 
an item of property must be substantially improved by the same date by 
which the merging or consolidating partnership was required to satisfy 
the substantial improvement test for such property.
    (d) Qualified opportunity zone business--(1) In general. An eligible 
entity engaged in a trade or business within the meaning of section 162 
is a qualified opportunity zone business if the entity satisfies, as 
determined at the end of its taxable year, all the criteria in 
paragraphs (d)(1)(i) through (iii) of this section. An eligible entity's 
status as a qualified opportunity zone business applies for the entire 
taxable year of the entity.
    (i) Pursuant to section 1400Z-2(d)(3)(A)(i), the eligible entity 
engaged in the trade or business satisfies the 70-percent tangible 
property standard with respect to its tangible property, as provided in 
paragraph (d)(2) of this section;
    (ii) Pursuant to section 1400Z-2(d)(3)(A)(ii), the eligible entity 
engaged in the trade or business satisfies the requirements of section 
1397C(b)(2), (4), and (8), as provided in paragraph (d)(3) of this 
section; and
    (iii) Pursuant to section 1400Z-2(d)(3)(A)(iii), the eligible entity 
engaged in the trade or business is not described in section 
144(c)(6)(B) as provided in paragraph (d)(4) of this section.
    (2) Satisfaction of 70-percent tangible property standard--(i) In 
general. A trade or business of an eligible entity satisfies the 70-
percent tangible property standard if at least 70 percent of the 
tangible property owned or leased by the trade or business is qualified 
opportunity zone business property (as defined in Sec.  1.1400Z2(d)-2).
    (ii) Calculating percent of tangible property owned or leased in a 
trade or business--(A) In general. Whether a trade or business of the 
eligible entity satisfies the 70-percent tangible property standard set 
forth in paragraph (d)(2)(i) of this section is determined by a 
fraction--
    (1) The numerator of which is the total value of all tangible 
property owned or leased by the qualified opportunity zone business that 
is qualified opportunity zone business property; and
    (2) The denominator of which is the total value of all tangible 
property owned or leased by the qualified opportunity zone business, 
whether located inside or outside of a qualified opportunity zone.
    (B) Valuation. See paragraph (b)(2)(ii) of this section for rules 
regarding the valuation of tangible property for purposes of the 70-
percent tangible property standard.
    (3) Operation of section 1397C requirements adopted by reference--
(i) Gross income requirement. Section 1400Z-2(d)(3)(A)(ii) incorporates 
section 1397C(b)(2), requiring that for each taxable year at least 50 
percent of the gross income of a qualified opportunity zone business is 
derived from the active conduct of a trade or business in the qualified 
opportunity zone (or in multiple qualified opportunity zones). A

[[Page 1046]]

trade or business meets the 50-percent gross income requirement in the 
preceding sentence if the trade or business satisfies any one of the 
four criteria described in paragraph (d)(3)(i)(A), (B), (C), or (D) of 
this section, or any criteria identified in published guidance issued by 
the Commissioner under Sec.  601.601(d)(2) of this chapter.
    (A) Services performed in qualified opportunity zone based on hours. 
At least 50 percent of the services performed for the trade or business 
are performed in a qualified opportunity zone, determined by the 
fraction described in paragraphs (d)(3)(i)(A)(1) and (2) of this 
section. Amounts paid to partners that provide services to the trade or 
business of a partnership are taken into account in the numerator and 
denominator set forth in paragraphs (d)(3)(i)(A)(1) and (2) of this 
section only to the extent the amounts paid to the partners are 
guaranteed payments for services provided to the partnership within the 
meaning of section 707(c).
    (1) The numerator of the fraction is the total number of hours of 
services performed for the trade or business in a qualified opportunity 
zone during the taxable year by employees, partners that provide 
services to a partnership, independent contractors, and employees of 
independent contractors; and
    (2) The denominator of the fraction is the total number of hours of 
services performed for the trade or business during the taxable year by 
employees, partners that provide services to a partnership, independent 
contractors, and employees of independent contractors.
    (B) Services performed in qualified opportunity zone based on 
amounts paid for services. At least 50 percent of the services performed 
for the trade or business are performed in a qualified opportunity zone, 
determined by the fraction described in paragraphs (d)(3)(i)(B)(1) and 
(2) of this section. Amounts paid to partners that provide services to 
the trade or business of a partnership are taken into account in the 
numerator and denominator set forth in paragraphs (d)(3)(i)(B)(1) and 
(2) of this section only to the extent the amounts paid to the partners 
are guaranteed payments for services provided to the partnership within 
the meaning of section 707(c).
    (1) The numerator of the fraction is the total amount paid by the 
entity for services performed in a qualified opportunity zone during the 
taxable year, whether by employees, partners that provide services to a 
partnership, independent contractors, or employees of independent 
contractors; and
    (2) The denominator of the fraction is the total amount paid by the 
entity for services performed during the taxable year, whether by 
employees, partners that provide services to a partnership, independent 
contractors, or employees of independent contractors.
    (C) Necessary tangible property and business functions. The tangible 
property of the trade or business located in a qualified opportunity 
zone and the management or operational functions performed in a 
qualified opportunity zone are each necessary for the generation of at 
least 50 percent of the gross income of the trade or business.
    (D) Facts and circumstances. Based on all the facts and 
circumstances, at least 50 percent of the gross income of a qualified 
opportunity zone business is derived from the active conduct of a trade 
or business in a qualified opportunity zone.
    (E) Examples. The following examples illustrate the principles of 
paragraphs (d)(3)(i)(C) and (D) of this section.
    (1) Example 1. A landscaping business has its headquarters in a 
qualified opportunity zone, its officers and employees manage the daily 
operations of the business (inside and outside the qualified opportunity 
zone) from its headquarters, and all its equipment and supplies are 
stored in the headquarters facilities. The activities occurring and the 
storage of equipment and supplies in the qualified opportunity zone are, 
taken together, necessary for the generation of the income of the 
business.
    (2) Example 2. A trade or business is formed or organized under the 
laws of the jurisdiction within which a qualified opportunity zone is 
located, and the business has a P.O. Box located in the qualified 
opportunity zone. The mail received at that P.O. Box is fundamental to 
the income of the trade or business, but there is no other basis for 
concluding that the income of the

[[Page 1047]]

trade or business is derived from activities in the qualified 
opportunity zone. The mere location of the P.O. Box is not necessary for 
the generation of gross income by the trade or business.
    (3) Example 3. In 2019, Taxpayer X realized $w million of capital 
gains and within the 180-day period invested $w million in QOF Y, a 
qualified opportunity fund. QOF Y immediately acquired from partnership 
P a partnership interest in P, solely in exchange for $w million of 
cash. P is a real estate developer that has written plans to acquire 
land in a qualified opportunity zone on which it plans to construct a 
commercial building for lease to other trades or businesses. In 2023, 
P's commercial building is placed in service and is fully leased up to 
other trades or businesses. For the 2023 taxable year, at least 50 
percent of P's gross income is derived from P's rental of its tangible 
property in the qualified opportunity zone. Thus, under P's facts and 
circumstances, P satisfies the gross income test under section 
1397C(b)(2).
    (ii) Use of intangible property requirement--(A) In general. Section 
1400Z-2(d)(3)(A)(ii) incorporates section 1397C(b)(4), requiring that, 
with respect to any taxable year, a substantial portion of the 
intangible property of a qualified opportunity zone business is used in 
the active conduct of a trade or business in a qualified opportunity 
zone. For purposes of section 1400Z-2(d)(3)(A)(ii) and the preceding 
sentence, the term substantial portion means at least 40 percent.
    (B) Use of intangible property. For purposes of section 1400Z-
2(d)(3)(A)(ii) and paragraph (d)(3)(ii)(A) of this section, intangible 
property of a qualified opportunity zone business is used in the active 
conduct of a trade or business in a qualified opportunity zone if--
    (1) The use of the intangible property is normal, usual, or 
customary in the conduct of the trade or business; and
    (2) The intangible property is used in the qualified opportunity 
zone in the performance of an activity of the trade or business that 
contributes to the generation of gross income for the trade or business.
    (iii) Active conduct of a trade or business--(A) Operating real 
property. Solely for purposes of section 1400Z-2(d)(3)(A), the ownership 
and operation (including leasing) of real property is the active conduct 
of a trade or business.
    (B) Lessee is responsible for certain costs. Merely entering into a 
triple-net-lease with respect to real property owned by a taxpayer does 
not constitute the active conduct of a trade or business by such 
taxpayer.
    (C) Examples. The following examples illustrate the rules of 
paragraph (d)(3)(iii) of this section.
    (1) Example 1. Mere triple-net-lease not active conduct of trade or 
business--(i) Facts. Company N constructs and places into service a new, 
three-story office building in a qualified opportunity zone and leases 
the entire building to tenant X, an unrelated person, which uses the 
building as office space for its software development firm. This 
building is the only property owned by Company N. The lease agreement 
between Company N and tenant X is a triple-net-lease under which tenant 
X is responsible for all of the costs relating to the office building 
(for example, paying all taxes, insurance, and maintenance expenses) in 
addition to paying rent. Company N also maintains an office in the 
building with staff members to address any issues that may arise with 
respect to the triple-net-lease.
    (ii) Analysis. Solely for purposes of section 1400Z-2(d)(3)(A), 
Company N is treated as not engaged in the active conduct of a trade or 
business with respect to the leased office building. Company N leases 
the building to tenant X under a triple-net-lease, and therefore the 
employees of Company N do not meaningfully participate in the management 
or operations of the building. The fact that Company N maintains an 
office in the leased building with staff members to address any issues 
that may arise with respect to the triple-net-lease does not alter this 
result. Therefore, Company N does not conduct an active trade or 
business in a qualified opportunity zone.
    (2) Example 2. Triple-net-lease and managerial and operational 
activities can constitute active conduct of trade or business--(i) 
Facts. Company N constructs and places into service a new, three-story 
mixed-use building in a qualified opportunity zone and leases a floor to 
each of unrelated tenants X, Y, and Z,

[[Page 1048]]

respectively. This building is the only property owned by Company N. The 
lease agreement between Company N and tenant X is a triple-net-lease 
under which tenant X is responsible for all of the costs relating to the 
third floor of the building (for example, paying all such taxes, 
insurance, and maintenance expenses) in addition to paying rent. The 
lease agreement between Company N and tenant Y is not a triple-net-lease 
and employees of Company N manage and operate the second floor of the 
building. Likewise, the lease agreement between Company N and tenant Z 
is not a triple-net-lease and employees of Company N manage and operate 
the first floor of the building. Company N maintains an office in the 
building, which the employees regularly use to carry out their 
managerial and operational duties with respect to the first and second 
floors, and address any other issues that may arise with respect to the 
three leases.
    (ii) Analysis. Solely for purposes of section 1400Z-2(d)(3)(A), 
Company N is treated as engaged in the active conduct of a trade or 
business with respect to the leased mixed-use building. While Company N 
leases the third floor of the building to tenant X merely under a 
triple-net-lease, and therefore the employees of Company N do not 
meaningfully participate in the management or operations of that floor, 
the employees of Company N meaningfully participate in the management 
and operations of the first and second floors of the leased building. 
Therefore, in carrying out the overall leasing business of Company N 
with respect to the mixed-use building, employees of Company N conduct 
meaningful managerial and operational activities. As a result, Company N 
conducts an active trade or business in a qualified opportunity zone.
    (iv) Nonqualified financial property limitation. Section 1400Z-
2(d)(3)(A)(ii) incorporates section 1397C(b)(8), which requires that in 
each taxable year less than 5 percent of the average of the aggregate 
unadjusted bases of the property of a qualified opportunity zone 
business is attributable to nonqualified financial property. Section 
1397C(e)(1), which defines the term nonqualified financial property for 
purposes of section 1397C(b)(8), excludes from that term reasonable 
amounts of working capital held in cash, cash equivalents, or debt 
instruments with a term of 18 months or less (working capital assets) 
and debt instruments described in section 1221(a)(4).
    (v) Safe harbor for reasonable amount of working capital. Solely for 
purposes of applying section 1397C(e)(1) to the definition of a 
qualified opportunity zone business under section 1400Z-2(d)(3), working 
capital assets are treated as reasonable in amount for purposes of 
sections 1397C(b)(2) and 1400Z-2(d)(3)(A)(ii), if all of the 
requirements in paragraphs (d)(3)(v)(A) through (C) of this section are 
satisfied.
    (A) Designated in writing. These amounts are designated in writing 
for the development of a trade or business in a qualified opportunity 
zone (as defined in section 1400Z-1(a)), including when appropriate the 
acquisition, construction, and/or substantial improvement of tangible 
property in such a zone.
    (B) Reasonable written schedule. There is a written schedule 
consistent with the ordinary start-up of a trade or business for the 
expenditure of the working capital assets. Under the schedule, the 
working capital assets must be spent within 31 months of the receipt by 
the business of the assets.
    (C) Property consumption consistent. The working capital assets are 
actually used in a manner that is substantially consistent with the 
writing and written schedule described in paragraphs (d)(3)(v)(A) and 
(B) of this section. If consumption of the working capital assets is 
delayed by waiting for governmental action the application for which is 
complete, that delay does not cause a failure of this paragraph 
(d)(3)(v)(C).
    (D) Federally declared disasters. If the qualified opportunity zone 
business is located in a qualified opportunity zone within a federally 
declared disaster (as defined in section 165(i)(5)(A)), the qualified 
opportunity zone business may receive not more than an additional 24 
months to consume its working capital assets, as long as it otherwise 
meets the requirements of paragraph (d)(3)(v) of this section.

[[Page 1049]]

    (E) Ability of a single business to benefit from more than a single 
application of the safe harbor. A business may benefit from multiple 
overlapping or sequential applications of the working capital safe 
harbor, provided that each application independently satisfies all of 
the requirements in paragraphs (d)(3)(v)(A) through (C) of this section.
    (vi) Safe harbor for section 1397C requirements other than ``sin 
business'' prohibition--(A) Maximum 62-month safe harbor for start-up 
businesses. Property described in paragraphs (d)(3)(vi)(B), (C), and (D) 
of this section may benefit from one or more 31-month periods, for a 
total of 62 months, in the form of multiple overlapping or a sequential 
application of the working capital safe harbor if--
    (1) Each application independently satisfies all of the requirements 
in paragraphs (d)(3)(v)(A) through (C) of this section;
    (2) The working capital assets from an expiring 31-month period were 
expended in accordance with the requirements in paragraphs (d)(3)(v)(A) 
through (C) of this section;
    (3) The subsequent infusions of working capital assets form an 
integral part of the plan covered by the initial working capital safe 
harbor period; and
    (4) Each overlapping or sequential application of the working 
capital safe harbor includes a substantial amount of working capital 
assets (which may include debt instruments described in section 
1221(a)(4)).
    (B) Safe harbor for gross income derived from the active conduct of 
business. Solely for purposes of applying the 50-percent test in section 
1397C(b)(2) to the definition of a qualified opportunity zone business 
in section 1400Z-2(d)(3), if any gross income is derived from property 
that paragraph (d)(3)(v) of this section treats as a reasonable amount 
of working capital, then that gross income is counted toward 
satisfaction of the 50-percent test.
    (C) Safe harbor for use of intangible property. Solely for purposes 
of applying the use requirement in section 1397C(b)(4) to the definition 
of a qualified opportunity zone business under section 1400Z-2(d)(3), 
intangible property purchased or licensed by the trade or business, 
pursuant to the reasonable written plan with a written schedule for the 
expenditure of the working capital, satisfies the use requirement during 
any period in which the business is proceeding in a manner that is 
substantially consistent with paragraphs (d)(3)(v)(A) through (C) of 
this section.
    (D) Safe harbor for working capital and property on which working 
capital is being expended--(1) Working capital for start-up businesses. 
For start-up businesses utilizing the working capital safe harbor, if 
paragraph (d)(3)(v) of this section treats property of an entity that 
would otherwise be nonqualified financial property as being a reasonable 
amount of working capital because of compliance with the three 
requirements of paragraphs (d)(3)(v)(A) through (C) of this section, the 
entity satisfies the requirements of section 1400Z-2(d)(3)(A)(i) only 
during the working capital safe harbor period(s) for which the 
requirements of paragraphs (d)(3)(v)(A) through (C) of this section are 
satisfied; however such property is not qualified opportunity zone 
business property for any purpose.
    (2) Tangible property acquired with covered working capital. For any 
eligible entity, if tangible property referred to in paragraph 
(d)(3)(v)(A) is expected to satisfy the requirements of section 1400Z-
2(d)(2)(D)(i) as a result of the planned expenditure of working capital 
described in paragraph (d)(3)(v)(A), and is purchased, leased, or 
improved by the trade or business, pursuant to the written plan for the 
expenditure of the working capital, then the tangible property is 
treated as qualified opportunity zone business property satisfying the 
requirements of section 1400Z-2(d)(2)(D)(i), during that and subsequent 
working capital periods the property is subject to, for purposes of the 
70-percent tangible property standard in section 1400Z-2(d)(3).
    (vii) Examples. The following examples illustrate the rules of 
paragraphs (d)(3)(v) and (vi) of this section.
    (A) Example 1. General application of working capital safe harbor--
(1) Facts. QOF F creates a domestic C corporation E to open a fast-food 
restaurant and acquires almost all of the equity of E in exchange for 
cash. E has a written plan and a 20-month schedule for the

[[Page 1050]]

use of this cash to establish the restaurant. Among the planned uses for 
the cash are identification of favorable locations in the qualified 
opportunity zone, leasing a building suitable for such a restaurant, 
outfitting the building with appropriate equipment and furniture (both 
owned and leased), necessary security deposits, obtaining a franchise 
and local permits, and the hiring and training of kitchen and wait 
staff. Not-yet-disbursed amounts were held in assets described in 
section 1397C(e)(1), and these assets were eventually expended in a 
manner consistent with the plan and schedule.
    (2) Analysis. E's use of the cash qualifies for the working capital 
safe harbor described in paragraph (d)(3)(v) of this section.
    (B) Example 2. Multiple applications of working capital safe 
harbor--(1) Facts. QOF G creates a domestic C corporation H to start a 
new technology company and acquires equity of H in exchange for cash on 
Date 1. In addition to H's rapid deployment of capital received from 
other equity investors, H writes a plan with a 30-month schedule for the 
use of the Date 1 cash. The plan describes use of the cash to research 
and develop a new technology (Technology), including paying salaries for 
engineers and other scientists to conduct the research, purchasing, and 
leasing equipment to be used in research and furnishing office and 
laboratory space. Approximately 18 months after Date 1, on Date 2, G 
acquires additional equity in H for cash, and H writes a second plan. 
This new plan has a 25-month schedule for the development of a new 
application of existing software (Application), to be marketed to 
government agencies. Among the planned uses for the cash received on 
Date 2 are paying development costs, including salaries for software 
engineers, other employees, and third-party consultants to assist in 
developing and marketing the new application to the anticipated 
customers. Not-yet-disbursed amounts that were scheduled for development 
of the Technology and the Application were held in assets described in 
section 1397C(e)(1), and these assets were eventually expended in a 
manner substantially consistent with the plans and schedules for both 
the Technology and the Application.
    (2) Analysis. H's use of both the cash received on Date 1 and the 
cash received on Date 2 qualifies for the working capital safe harbor 
described in paragraph (d)(3)(v) of this section.
    (C) Example 3. General application of working capital safe harbor--
(1) Facts. In 2019, Taxpayer H realized $w million of capital gains and 
within the 180-day period invested $w million in QOF T, a qualified 
opportunity fund. QOF T immediately acquired from partnership P a 
partnership interest in P, solely in exchange for $w million of cash. P 
immediately placed the $w million in working capital assets, which 
remained in working capital assets until used. P had written plans to 
acquire land in a qualified opportunity zone on which it planned to 
construct a commercial building. Of the $w million, $x million was 
dedicated to the land purchase, $y million to the construction of the 
building, and $z million to ancillary but necessary expenditures for the 
project. The written plans provided for purchase of the land within a 
month of receipt of the cash from QOF T and for the remaining $y and $z 
million to be spent within the next 30 months on construction of the 
building and on the ancillary expenditures. All expenditures were made 
on schedule, consuming the $w million. During the taxable years that 
overlap with the first 31-month period, P had no gross income other than 
that derived from the amounts held in those working capital assets. 
Prior to completion of the building, P's only assets were the land it 
purchased, the unspent amounts in the working capital assets, and P's 
work in process as the building was constructed.
    (2) Analysis--P met the three requirements of the safe harbor 
provided in paragraphs (d)(3)(v)(A) through (C) of this section. P had a 
written plan to spend the $w received from QOF T for the acquisition, 
construction, and/or substantial improvement of tangible property in a 
qualified opportunity zone, as defined in section 1400Z-1(a). P had a 
written schedule consistent with the ordinary start-up for a business 
for the expenditure of the working capital

[[Page 1051]]

assets. And, finally, P's working capital assets were actually used in a 
manner that was substantially consistent with its written plan and the 
ordinary start-up of a business. First, the $x million, the $y million, 
and the $z million are treated as reasonable in amount for purposes of 
sections 1397C(b)(2) and 1400Z-2(d)(3)(A)(ii). Second, because P had no 
other gross income during the 31 months at issue, 100 percent of P's 
gross income during that time is treated as derived from an active trade 
or business in the qualified opportunity zone for purposes of satisfying 
the 50-percent test of section 1397C(b)(2). Third, for purposes of 
satisfying the requirement of section 1397C(b)(4), during the period of 
land acquisition and building construction a substantial portion of P's 
intangible property is treated as being used in the active conduct of a 
trade or business in the qualified opportunity zone. Fourth, all of the 
facts described are consistent with QOF T's interest in P being a 
qualified opportunity zone partnership interest for purposes of 
satisfying the 90-percent investment standard in section 1400Z-2(d)(1).
    (3) Analysis if P had purchased an existing building. The 
conclusions would also apply if P's plans had been to buy and 
substantially improve a pre-existing commercial building. In addition, 
the fact that P's basis in the building has not yet doubled would not 
cause the building to fail to satisfy section 1400Z-2(d)(2)(D)(i)(III).
    (D) Example 4. Multiple applications of working capital safe harbor 
to tangible property--(1) Facts. QOF A forms a domestic C corporation B 
to develop a large mixed-use real estate development that will consist 
of commercial and residential real property, owning almost all of the 
equity of B in exchange for cash. To raise additional working capital 
for the mixed-use real estate development, B also will borrow cash under 
a new revolving credit agreement with an unrelated lender. B has a 
master written plan for the completion of the commercial and residential 
real property over a 55-month period. The plan provides that the 
commercial real property will be completed over a 30 month schedule and 
subsequently, the residential real property will be completed over a 25 
month schedule. The plan further provides that a portion of the 
commercial real property is unable to be used in a trade or business 
after the completion of the commercial real property since that portion 
of the commercial real property will be unusable during the residential 
construction phase. Pursuant to B's original master plan for the 
completion of the real estate development, QOF A acquires additional 
equity in B for cash after the completion of the commercial development 
phase, and B commences use of those working capital assets for 
residential development phase.
    (2) Analysis. B's use of the cash for the commercial and residential 
phase qualified for the working capital safe harbor described in 
paragraph (d)(3)(v) of this section. In addition, all of B's commercial 
real property developed pursuant to B's original master plan is treated 
as qualified opportunity zone business property under paragraph 
(d)(3)(vi)(D) of this section.
    (viii) Safe harbor for property on which working capital is being 
expended--(A) In general. If paragraph (d)(3)(v) of this section treats 
property that would otherwise be nonqualified financial property as 
being a reasonable amount of working capital because of compliance with 
the three requirements of paragraphs (d)(3)(v)(A) through (C) of this 
section and if the tangible property referred to in paragraph 
(d)(3)(v)(A) is expected to satisfy the requirements of section 1400Z-
2(d)(2)(D)(i) as a result of the planned expenditure of those working 
capital assets, then tangible property purchased, leased, or improved by 
the trade or business, pursuant to the written plan for the expenditure 
of the working capital assets, is treated as qualified opportunity zone 
business property satisfying the requirements of section 1400Z-
2(d)(2)(D)(i), during that and subsequent working capital periods the 
property is subject to, for purposes of the 70-percent tangible property 
standard in section 1400Z-2(d)(3).
    (B) Example. Multiple applications of working capital safe harbor to 
tangible property--(i) Facts. B also borrows cash and forms a domestic C 
corporation B to develop a large mixed-use real estate development that 
will consist of

[[Page 1052]]

commercial and residential real property, owning almost all of the 
equity of B in exchange for cash. QOF A has a master written plan for 
the completion of the commercial and residential real property over a 55 
month period. The plan provides that the commercial real property will 
be completed over a 30 month schedule and subsequently, the residential 
real property will be completed over a 25 month schedule. The plan 
further provides that a portion of the commercial real property is 
unable to be used in a trade or business after the completion of the 
commercial real property since that portion of the commercial real 
property will be unusable during the residential construction phase. 
Pursuant to B's original master plan for the completion of the real 
estate development, QOF A acquires additional equity in B for cash after 
the completion of the commercial development phase, and B commences use 
of those working capital assets for residential development phase.
    (ii) Analysis. B's use of the cash for the commercial and 
residential phase qualified for the working capital safe harbor 
described in paragraph (d)(3)(v) of this section. In addition, all of 
B's commercial real property developed pursuant to B's original master 
plan is treated as qualified opportunity zone business property under 
paragraph (d)(3)(viii) of this section.
    (ix) Real property straddling a qualified opportunity zone. For 
purposes of satisfying the requirements in this paragraph (d)(3) in the 
case of real property that straddles a qualified opportunity zone, a 
qualified opportunity zone is the location of services, tangible 
property, or business functions if--
    (A) The trade or business uses the portion of the real property 
located within a qualified opportunity zone in carrying out its business 
activities;
    (B) The trade or business uses the real property located outside of 
a qualified opportunity zone in carrying out its business activities;
    (C) The amount of the real property located within a qualified 
opportunity zone is substantial compared to the amount of real property 
located outside of a qualified opportunity zone; and
    (D) The real property located in the qualified opportunity zone is 
contiguous to part, or all, of the real property located outside of the 
qualified opportunity zone.
    (E) In general, one of the two methods in paragraph (d)(3)(ix)(E)(1) 
and (2) of this section may be chosen to determine whether the amount of 
real property located in the qualified opportunity zone is substantial 
compared to the amount of real property located outside the qualified 
opportunity zone.
    (1) Square footage test. If the amount of real property based on 
square footage located within the qualified opportunity zone is greater 
than the amount of real property based on square footage outside of the 
qualified opportunity zone, and the real property outside of the 
qualified opportunity zone is contiguous to part or all of the real 
property located inside the qualified opportunity zone, then all of the 
property is deemed to be located within a qualified opportunity zone. 
The test in this paragraph (d)(3)(ix)(E)(1) is carried out at the time 
at which the subject real property is acquired.
    (2) Unadjusted cost test. If the unadjusted cost of the real 
property located inside a qualified opportunity zone is greater than the 
unadjusted cost of the real property outside the qualified opportunity 
zone, and the real property outside of the qualified opportunity zone is 
contiguous to all or part of the real property located inside the 
qualified opportunity zone, then all of the property is deemed to be 
located within a qualified opportunity zone. The unadjusted cost basis 
of property acquired as a single tract is presumed to be allocated on 
the basis of the square footage of the property. The test in this 
paragraph (d)(3)(ix)(E)(2) is carried out at the time at which the 
subject real property is acquired.
    (F) For purposes of the two tests described in paragraph 
(d)(3)(ix)(E)(1) and (2) of this section, two or more tracts or parcels 
of land are contiguous if they share common boundaries or would share 
common boundaries but for the interposition of a road, street, railroad, 
stream or similar property. Tracts or parcels of land which touch

[[Page 1053]]

only at a common corner are not contiguous.
    (x) Example. The following example illustrates the rules of 
paragraph (d)(3) of this section--
    (A) Facts. In 2019, Taxpayer H realized $w million of capital gains 
and within the 180-day period invested $w million in QOF T, a qualified 
opportunity fund. QOF T immediately acquired from partnership P a 
partnership interest in P, solely in exchange for $w million of cash. P 
immediately placed the $w million in working capital assets, which 
remained in working capital assets until used. P had written plans to 
acquire land in a qualified opportunity zone on which it planned to 
construct a commercial building. Of the $w million, $x million was 
dedicated to the land purchase, $y million to the construction of the 
building, and $z million to ancillary but necessary expenditures for the 
project. The written plans provided for purchase of the land within a 
month of receipt of the cash from QOF T and for the remaining $y and $z 
million to be spent within the next 30 months on construction of the 
building and on the ancillary expenditures. All expenditures were made 
on schedule, consuming the $w million. During the taxable years that 
overlap with the first 31-month period, P had no gross income other than 
that derived from the amounts held in those working capital assets. 
Prior to completion of the building, P's only assets were the land it 
purchased, the unspent amounts in the working capital assets, and P's 
work in process as the building was constructed.
    (B) Analysis--(1) P met the three requirements of the safe harbor 
provided in paragraph (d)(3)(v) of this section. P had a written plan to 
spend the $w received from QOF T for the acquisition, construction, and/
or substantial improvement of tangible property in a qualified 
opportunity zone, as defined in section 1400Z-1(a). P had a written 
schedule consistent with the ordinary start-up for a business for the 
expenditure of the working capital assets. And, finally, P's working 
capital assets were actually used in a manner that was substantially 
consistent with its written plan and the ordinary start-up of a 
business. Therefore, the $x million, the $y million, and the $z million 
are treated as reasonable in amount for purposes of sections 1397C(b)(2) 
and 1400Z-2(d)(3)(A)(ii).
    (2) Because P had no other gross income during the 31 months at 
issue, 100 percent of P's gross income during that time is treated as 
derived from an active trade or business in the qualified opportunity 
zone for purposes of satisfying the 50-percent test of section 
1397C(b)(2).
    (3) For purposes of satisfying the requirement of section 
1397C(b)(4), during the period of land acquisition and building 
construction a substantial portion of P's intangible property is treated 
as being used in the active conduct of a trade or business in the 
qualified opportunity zone.
    (4) All of the facts described are consistent with QOF T's interest 
in P being a qualified opportunity zone partnership interest for 
purposes of satisfying the 90-percent investment standard in section 
1400Z-2(d)(1).
    (C) Analysis if P had purchased an existing building. The 
conclusions in paragraph (d)(3)(x)(B) of this section would also apply 
if P's plans had been to buy and substantially improve a pre-existing 
commercial building. In addition, the fact that P's basis in the 
building has not yet doubled would not cause the building to fail to 
satisfy section 1400Z-2(d)(2)(D)(i)(III).
    (4) Trade or businesses described in section 144(c)(6)(B) not 
eligible--(i) Pursuant to section 1400Z-2(d)(3)(A)(iii), the following 
trades or businesses, and businesses leasing more than a de minimis 
amount of property to the following trades or businesses, cannot qualify 
as a qualified opportunity zone business:
    (A) Any private or commercial golf course;
    (B) Country club;
    (C) Massage parlor;
    (D) Hot tub facility;
    (E) Suntan facility;
    (F) Racetrack or other facility used for gambling; or
    (G) Any store the principal business of which is the sale of 
alcoholic beverages for consumption off premises.
    (ii) De minimis amounts of gross income attributable to a business 
described in section 144(c)(6)(B) will not

[[Page 1054]]

cause a trade or business to fail to be a qualified opportunity zone 
business.
    (iii) The term de minimis amount of property, used in paragraph 
(d)(4)(i) of this section, means less than 5 percent of the net rentable 
square feet for real property and less than 5 percent of the value for 
all other tangible property. The term de minimis amount of gross income, 
used in paragraph (d)(4)(ii) of this section, means less than 5 percent 
of the gross income of the qualified opportunity zone business may be 
attributable to the types of business described in section 144(c)(6)(B).
    (iv) The following examples illustrate the rules of paragraph (d)(4) 
of this section:
    (A) Example 1. Entity A is a QOF that meets the requirements of 
section 1400Z-2(d)(1). Entity A owns qualified opportunity zone stock in 
a domestic corporation described in section 1400Z-2(d)(2)(B), which 
operates a hotel located in a qualified opportunity zone that qualifies 
as a trade or business. As part of that trade or business, the hotel 
operates a spa that provides massages and other therapies. Less than 5 
percent of the hotel's total gross income is attributable to the spa, 
and less than 5 percent of the net rentable square feet for real 
property and less than 5 percent of the value for all other tangible 
property is attributable to the spa. As a result, the operation of the 
spa, which is a business described in section 144(c)(6)(B), will not 
prevent the operation of the hotel from qualifying as a qualified 
opportunity zone business.
    (B) Example 2--(1) Facts. Entity B is a qualified opportunity zone 
business that meets the requirements of section 1400Z-2(d)(3). Entity B 
plans to acquire a commercial golf course that consists of land and 
other related buildings and equipment in a qualified opportunity zone, 
that will satisfy each requirement for qualified opportunity zone 
business property set forth in section 1400Z-2(d)(2)(D). Instead of 
directly managing and operating the commercial golf course business, 
Entity B will lease the land and other related buildings and equipment 
to a third party to manage and operate the commercial golf course. The 
leased real property represents more than 5 percent of the net rentable 
square feet of Entity B's real property and the leased and other 
tangible property represents more than 5 percent of the value for all 
other tangible property of Entity B.
    (2) Analysis. Because a golf course is prohibited from being a 
qualified trade or business under section 1400Z-2(d)(3)(A)(iii), the 
leasing arrangement will cause Entity B to fail to be a qualified 
opportunity zone business regardless of the satisfaction of each 
requirement set forth in section 1400Z-2(d)(2)(D).
    (C) Example 3--(1) Facts. Entity B meets the explicit requirements 
of section 1400Z-2(d)(1) and has certified itself as a QOF. Entity B 
owns a commercial golf course that consists of land and other related 
buildings and equipment in a qualified opportunity zone, and the land 
and buildings satisfy all explicit requirements (in section 1400Z-
2(d)(2)(D)) to be qualified opportunity zone business property. Entity B 
manages and operates the commercial golf course business, but does not 
manage or operate any other trade or business not described in section 
144(c)(6)(B) (listing businesses not eligible to be a qualified 
opportunity zone business pursuant to section 1400Z-2(d)(3)(A)(iii)). 
Entity B chose to operate the commercial golf course through Entity B, 
rather than through a qualified opportunity zone business, in order to 
avoid the requirement in section 1400Z-2(d)(3)(A)(iii), which provides 
that a qualified opportunity zone business cannot operate a commercial 
golf course due to the inclusion of that trade or business in section 
144(c)(6)(B).
    (2) Analysis. The ownership and operation of the golf course at the 
QOF level will not disqualify the QOF because the prohibition on 
businesses described in section 144(c)(6)(B) is not applicable at the 
QOF level. In addition, if each requirement set forth in section 1400Z-
2(d)(2)(D) is satisfied, the property used in the commercial golf course 
will qualify as qualified opportunity zone business property held by 
Entity B for purposes of section 1400Z-2(d)(2)(A).
    (5) Tangible property of a qualified opportunity zone business that 
ceases to be qualified opportunity zone business property. For qualified 
opportunity zone businesses, tangible property that

[[Page 1055]]

ceases to be qualified opportunity zone business property shall continue 
to be treated as qualified opportunity zone business property for the 
lesser of five years after the date on which such tangible property 
ceases to be so qualified or the date on which such tangible property is 
no longer held by the qualified opportunity zone business. However, 
tangible property is not eligible for the benefits provided in this 
paragraph (d)(5) unless the tangible property ceasing to qualify as 
qualified opportunity zone business property was qualified opportunity 
zone business property used by a qualified opportunity zone business in 
a qualified opportunity zone for two years. For purposes of this 
paragraph (d)(5), tangible property purchased, leased, or improved by a 
trade or business, that is treated as satisfying the requirements of 
section 1400Z-2(d)(2)(D)(i) during that working capital safe harbor 
period pursuant to paragraph (d)(3)(v) of this section or that 30-month 
substantial improvement period described in Sec.  1.1400Z2(d)-2(b)(4), 
is not treated as used by a qualified opportunity zone business in a 
qualified opportunity zone for any portion of the two year period 
described in this paragraph (d)(5).
    (6) Cure period for qualified opportunity zone businesses. (i) For 
purposes of the 90-percent qualified opportunity zone business holding 
period requirements set forth in sections 1400Z-2(d)(2)(B)(i)(III), 
1400Z-2(d)(2)(C)(iii), and 1400Z-2(d)(2)(D)(i)(III), if a trade or 
business causes the QOF to fail the 90-percent investment standard on a 
semiannual testing date, the QOF may treat the stock or partnership 
interest in that trade or business as qualified opportunity zone 
property for that semiannual testing date provided the trade or business 
corrects the failure within 6 months of the date on which the stock or 
partnership interest lost its qualification.
    (ii) If the failure occurs on the last testing date of the taxable 
year, the six-month cure period described in paragraph (d)(6)(i) of this 
section is available to the QOF only if the QOF files a valid 
application for an extension of time to file its tax return.
    (iii) Each QOF is permitted only one correction for a trade or 
business pursuant to this paragraph (d)(6). If the entity, at the end of 
the additional six-month cure period, fails to qualify as a qualified 
opportunity zone business, then the QOF becomes subject to the penalty 
under section 1400Z-2(f)(1) for each month the entity failed to qualify 
as a qualified opportunity zone business beginning with the first month 
following the last month that the QOF met the 90-percent investment 
standard.
    (e) Applicability dates--(1) In general. The provisions of this 
section are applicable for taxable years beginning after March 13, 2020.
    (2) Prior periods. With respect to the portion of a taxpayer's first 
taxable year ending after December 21, 2017, and for taxable years 
beginning after December 21, 2017, and on or before March 13, 2020, a 
taxpayer may choose either--
    (i) To apply the section 1400Z-2 regulations, if applied in a 
consistent manner for all such taxable years (reliance by a taxpayer on 
paragraph (e)(2)(ii) of this section, Sec.  1.1400Z2(a)-1(g)(2)(ii), 
Sec.  1.1400Z2(b)-1(j)(2)(ii), Sec.  1.1400Z2(d)-2(e)(2)(ii), or Sec.  
1.1400Z2(f)-1(d)(2)(ii), is disregarded solely for purposes of the 
consistency requirement under this paragraph (e)(2)(i)); or
    (ii) To rely on the rules in proposed Sec.  1.1400Z2(d)-1 contained 
in the notice of proposed rulemaking (REG-115420-18) published on 
October 29, 2018, as amplified by the notice of proposed rulemaking 
(REG-120186-18) published on May 1, 2019, but only if applied in a 
consistent manner for all such taxable years.

[T.D. 9889, 85 FR 1977, Jan. 13, 2020; 85 FR 19083, April 6, 2020; T.D. 
9889, 86 FR 42716, Aug. 5, 2021]

    Editorial Note: At 85 FR 19083, April 6, 2020, Sec.  1.1400Z2(d)-1 
was amended in part by redesignating paragraphs (d)(3)(ix) and (x) as 
(d)(3)(viii) and (ix); however, the amendment could not be incorporated 
due to inaccurate amendatory instruction.



Sec.  1.1400Z2(d)-2  Qualified opportunity zone business property.

    (a) Qualified opportunity zone business property--(1) In general. 
This section provides rules for determining whether owned or leased 
tangible property held by an eligible entity (within the meaning of 
Sec.  1.1400Z2(d)-1(a)(1)) is qualified opportunity zone business 
property

[[Page 1056]]

within the meaning of section 1400Z-2(d)(2)(D). Paragraph (a)(2) of this 
section provides general requirements that tangible property must 
satisfy to be qualified opportunity zone business property. Paragraph 
(b) of this section provides rules related to owned tangible property. 
Paragraph (c) of this section provides rules related to leased tangible 
property (that is, tangible property that the eligible entity acquires 
by lease from a lessor). Paragraph (d) of this section provides rules 
related to the 90-percent qualified opportunity zone business property 
holding period requirement and the 70-percent use test of section 1400Z-
2(d)(2)(D)(i)(III). Paragraph (e) of this section provides the dates of 
applicability of this section.
    (2) Qualified opportunity zone business property requirements. The 
term qualified opportunity zone business property means tangible 
property owned or leased by an eligible entity (as defined in Sec.  
1.1400Z2(d)-1(a)(1)) that--
    (i) Is used by the eligible entity in a trade or business within the 
meaning of section 162; and
    (ii) Satisfies the requirements of paragraphs (b), (c), and (d) of 
this section, as applicable.
    (b) Tangible property owned by an eligible entity--(1) Purchase 
requirement--(i) In general. In the case of tangible property that is 
owned by an eligible entity, the tangible property must be acquired by 
the eligible entity after December 31, 2017, by purchase as defined by 
section 179(d)(2) from a person that is not a related person within the 
meaning of section 1400Z-2(e)(2) (providing that persons are related to 
each other if such persons are described in section 267(b) or section 
707(b)(1), determined by substituting ``20 percent'' for ``50 percent'' 
each place it appears in such sections).
    (ii) Plan, intent, or expectation for seller to repurchase acquired 
property. In the case of real property that is purchased by an eligible 
entity, if, at the time of the purchase, there was a plan, intent, or 
expectation for the acquired real property to be repurchased by the 
seller of the real property for an amount of consideration other than 
the fair market value of the real property, determined at the time of 
the repurchase by the seller, the purchased real property is not 
qualified opportunity zone business property.
    (iii) Property manufactured, constructed, or produced for use in a 
qualified opportunity zone--(A) In general. In the case of tangible 
property manufactured, constructed, or produced by an eligible entity, 
if the property is manufactured, constructed, or produced for use by an 
eligible entity with the intent to use such property in a trade or 
business in a qualified opportunity zone, then such property satisfies 
the requirements of paragraph (b)(1)(i) of this section if the 
manufacture, construction, or production begins after December 31, 2017. 
The materials and supplies used to manufacture, construct, or produce 
qualified opportunity zone business property by the eligible entity must 
also be qualified opportunity zone business property.
    (B) Time when manufacture, construction or production considered to 
begin. For purposes of paragraph (b)(1)(iii) of this section, the 
acquisition date of such property is the date on which the manufacture, 
construction, or production of property (as defined in paragraph 
(b)(1)(iii) of this section) begins. The manufacture, construction, or 
production of property begins when physical work of a significant nature 
begins. Physical work does not include preliminary activities such as 
planning or designing, securing financing, exploring or researching. The 
determination of when physical work of a significant nature begins 
depends on the facts and circumstances. For example, if a factory is to 
be constructed on-site, construction begins when physical work of a 
significant nature commences at the site; this could occur, for example, 
when work begins on the excavation of footings, or the pourings of pads 
for the factory. Preliminary work, such as clearing or testing of soil 
condition, does not constitute the beginning of construction.
    (C) Safe harbor. For purposes of paragraph (b)(1)(iii)(B) of this 
section, a taxpayer may choose to determine when physical work of a 
significant nature begins in accordance with this paragraph 
(b)(1)(iii)(C). Physical work

[[Page 1057]]

of a significant nature will not be considered to begin before the 
taxpayer incurs or pays more than 10 percent of the total cost of the 
property (excluding the cost of any land and preliminary activities such 
as planning or designing, securing financing, exploring, or 
researching).
    (2) Original use or substantial improvement requirement--(i) In 
general. In the case of tangible property owned by the eligible entity 
either--
    (A) The original use of the owned tangible property in the qualified 
opportunity zone, within the meaning of paragraph (b)(3) of this 
section, must commence with the eligible entity; or
    (B) The eligible entity must substantially improve the owned 
tangible property within the meaning of paragraph (b)(4) of this section 
(which defines substantial improvement in this context).
    (ii) Inventory. Inventory (including raw materials) of a trade or 
business produced by an eligible entity after December 31, 2017, is 
deemed to satisfy the requirements set forth in paragraphs (b)(1) and 
(b)(2)(i) of this section.
    (3) Original use of tangible property acquired by purchase--(i) 
Original use--(A) In general. For purposes of paragraph (b)(2) of this 
section, the original use of tangible property in a qualified 
opportunity zone commences on the date any person first places the 
property in service in the qualified opportunity zone for purposes of 
depreciation or amortization, or first uses it in a manner that would 
allow depreciation or amortization if that person were the property's 
owner.
    (B) Commencement of original use of vacant property. For purposes of 
this paragraph (b)(3), if real property, including land and buildings, 
has been vacant for an uninterrupted period of at least one calendar 
year beginning on a date prior to the date on which the qualified 
opportunity zone in which the property is located is listed as a 
designated qualified opportunity zone in a QOZ designation notice and 
the property has remained vacant through the date on which the property 
was purchased by the eligible entity, or if the property has been vacant 
for an uninterrupted three calendar year period beginning on a date 
after the date of publication of the QOZ designation notice that lists 
as designated the qualified opportunity zone in which the property is 
located and the property has remained vacant through the date on which 
the property was purchased by the eligible entity, original use in the 
qualified opportunity zone commences on the date after that period when 
any person first so uses or places the property in service in the 
qualified opportunity zone. Such property must satisfy the definition of 
vacancy under paragraph (b)(3)(iii) of this section.
    (C) Used tangible property. Used tangible property satisfies the 
original use requirement if the property has not been previously so used 
or placed in service in the qualified opportunity zone. If the tangible 
property had been so used or placed in service in the qualified 
opportunity zone before it is acquired by purchase, it must be 
substantially improved in order to satisfy the requirements of section 
1400Z-2(d)(2)(D)(i)(II).
    (D) Example. The following example illustrates the principles of 
paragraph (b)(3)(i)(A) of this section.
    (1) Facts. On January 1, 2019, QOF A purchases from a developer a 
newly constructed hotel building located in a qualified opportunity zone 
for $10 million. The developer purchased a parcel of land in that 
qualified opportunity zone, and constructed the hotel building thereon, 
with the intent and expectation to sell the building to a QOF. As of the 
time of the purchase, the developer had not placed the hotel building in 
service in the qualified opportunity zone for purposes of depreciation. 
Other than the original use requirement, assume that the hotel building 
satisfies all requirements under section 1400Z-2(d)(2)(D). In addition, 
assume that, at the time of the purchase, the developer had no plan, 
intent, or expectation to repurchase the hotel building.
    (2) Analysis. At the time of QOF A's purchase of the hotel building, 
the original use of the hotel building had not commenced because the 
developer had not yet placed the hotel building into service for 
purposes of depreciation in a qualified opportunity zone. See paragraph 
(b)(3)(i)(A) of this section. Therefore, the original use of the

[[Page 1058]]

hotel building in the qualified opportunity zone in which the building 
is located is treated as commencing with QOF A. See paragraph 
(b)(3)(i)(A) of this section. As a result, the hotel building purchased 
by QOF A is treated as satisfying the original use requirement of 
section 1400Z-2(d)(2)(D)(i)(II).
    (ii) Lessee improvements to leased property. Improvements made by a 
lessee to leased property satisfy the original use requirement in 
section 1400Z-2(d)(2)(D)(i)(II) as purchased property for the amount of 
the unadjusted cost basis under section 1012 of such improvements.
    (iii) Vacancy. Solely for purposes of meeting the requirements of 
section 1400Z-2, real property, including land and buildings, is 
considered to be in a state of vacancy if the property is significantly 
unused. A building or land will be considered significantly unused if 
more than 80 percent of the building or land, as measured by the square 
footage of useable space, is not currently being used.
    (iv) Brownfield sites. An eligible entity that purchases a parcel of 
land that is a brownfield site, as defined by section 101 of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (42 U.S.C. 9601) (brownfield site), may treat all property 
composing the brownfield site (including the land and structures 
thereon) as satisfying the original use requirement of section 1400Z-
2(d)(2)(D)(i)(II), if, within a reasonable period, the eligible entity 
makes investments in the brownfield site to ensure that all property 
composing the brownfield site meets basic safety standards for both 
human health and the environment.
    (v) Property involuntarily transferred to local government. An 
eligible entity that purchases real property from a local government 
that the local government holds as the result of an involuntary transfer 
(including through abandonment, bankruptcy, foreclosure, or 
receivership) may treat all property composing the real property 
(including the land and structures thereon) as satisfying the original 
use requirement of section 1400Z-2(d)(2)(D)(i)(II).
    (4) Substantial improvement of tangible property acquired by 
purchase--(i) In general. Except as provided in paragraph (b)(4)(iv) of 
this section, for purposes of paragraph (b)(2) of this section, tangible 
property is treated as substantially improved by an eligible entity only 
if it meets the requirements of section 1400Z-2(d)(2)(D)(ii) during the 
30-month substantial improvement period. The property has been 
substantially improved when the additions to basis of the property in 
the hands of the QOF exceed an amount equal to the adjusted basis of 
such property at the beginning of such 30-month period in the hands of 
the QOF (substantial improvement requirement).
    (ii) Treatment of property in the 30-month substantial improvement 
period. For purposes of the 90-percent investment standard under section 
1400Z-2(d)(1), tangible property purchased, leased, or improved by a 
trade or business that is undergoing the substantial improvement process 
but has not yet been placed in service by the eligible entity or used in 
the eligible entity's trade or business is treated as satisfying the 
requirements of section 1400Z-2(d)(2)(D)(i) and paragraph (b)(2) of this 
section for the 30-month substantial improvement period with respect to 
that property provided the eligible entity reasonably expects that the 
property will be substantially improved as defined in paragraph 
(b)(4)(i) of this section and used in the eligible entity's trade or 
business in a qualified opportunity zone by the end of such 30-month 
period. Tangible property described in the preceding sentence is not 
considered qualified opportunity zone business property for purposes of 
the special rule in section 1400Z-2(d)(3)(B) unless the tangible 
property is qualified opportunity zone business property for at least 
two years without regard to this paragraph (b)(4)(ii).
    (iii) Aggregation of original use property that improves the 
functionality of non-original use property--(A) General rule. The cost 
of purchased property that would otherwise qualify as qualified 
opportunity zone business property may be taken into account in 
determining whether additions to the basis of non-original use property 
acquired by purchase satisfy the substantial improvement requirement 
under section

[[Page 1059]]

1400Z-2(d)(2)(D)(ii), so long as the purchased property is located in 
the same qualified opportunity zone (or a contiguous qualified 
opportunity zone) as the non-original use property, is used in the same 
trade or business as the non-original use property, and improves the 
functionality of the non-original use property.
    (B) Improvement of non-original use real property. If an eligible 
entity chooses to apply this paragraph (b)(4)(iii) to non-original use 
real property, the eligible entity must improve the non-original use 
real property by more than an insubstantial amount within the meaning of 
paragraph (b)(4)(iv)(C) of this section.
    (C) Effect on purchased property. If an eligible entity chooses to 
apply this paragraph (b)(4)(iii), the purchased property that would 
otherwise qualify as qualified opportunity zone business property will 
not be treated as original use property, and instead the basis of that 
purchased property will be taken into account in determining whether 
additions to the basis of the non-original use property satisfy the 
requirements under section 1400Z-2(d)(2)(D)(i)(II) and (d)(2)(D)(ii).
    (D) Examples. The following examples illustrate the principles of 
paragraph (b)(4)(iii) of this section.
    (1) Example 1--(i) Facts. On January 1, 2019, QOF A purchases the 
assets of a hotel business located in a qualified opportunity zone for 
$5 million. The purchased assets include land, a building, linens, 
furniture and other fixtures attached to the building. $1 million of the 
purchase price is allocated to land and the remaining $4 million is 
allocated to the building, furniture and fixtures. During the course of 
renovations over the 30-month substantial improvement period, the QOF 
spent $1 million replacing linens, mattresses and furniture, $500,000 on 
the purchase of new exercise equipment for a gym located in the hotel 
building, $1 million on renovations for a restaurant (including 
restaurant equipment) attached to the hotel, and $1.5 million on 
structural renovations to the hotel. The QOF chooses to apply paragraph 
(b)(4)(iii) of this section to determine whether the substantial 
improvement requirement in section 1400Z-2(d)(2)(D)(ii) is met.
    (ii) Analysis. In order for the hotel to be considered qualified 
opportunity zone business property, QOF A must substantially improve the 
hotel as the hotel had previously been placed in service in the 
qualified opportunity zone. (QOF A was not required to substantially 
improve the land on which the hotel was located pursuant to paragraph 
(b)(4)(iv) of this section.) Because the amount of basis allocated to 
the hotel was $4 million, QOF A must expend $4 million to improve the 
hotel within the 30-month substantial improvement period provided in 
section 1400Z-2(d)(2)(D)(ii). The new linens, mattresses and furniture, 
new exercise equipment, and new restaurant equipment all qualify as 
original use assets under section 1400Z-2(d)(2)(D)(i)(II). QOF A also 
substantially improved the hotel, which was the asset that needed to be 
improved under section 1400Z-2(d)(2)(D)(i)(II). QOF A chose, at the 
start of the 30-month period, to include the costs of the newly 
purchased assets that improve the functionality of the hotel to the 
basis of the hotel. Thus, the cost of these items is eligible to be 
added to the hotel's basis pursuant to paragraph (b)(4)(iii) of this 
section. Therefore, QOF A has met the substantial improvement 
requirement under section 1400Z-2(d)(2)(D)(i)(II) by doubling its basis 
in the hotel and its fixtures within the 30-month substantial 
improvement period. The amounts spent replacing linens, mattresses, 
furniture, exercise equipment, and new restaurant equipment that were 
counted toward the substantial improvement requirement for the hotel are 
not considered original use assets for purposes of the 90-percent 
investment standard.
    (2) Example 2--(i) Purchase of unrelated property. The facts are the 
same as in paragraph (b)(4)(iii)(D)(1)(i) of this section, except that 
in addition to purchasing the hotel and the related land, QOF A also 
purchases an apartment building one block away from the hotel for $10 
million. The apartment building is located in the same qualified 
opportunity zone as the hotel.
    (ii) Analysis. QOF A may not include any improvements made to the 
apartment building, including purchased property that improves the

[[Page 1060]]

functionality of the apartment building, to the basis of the hotel. QOF 
A may choose, under paragraph (b)(4)(iii) of this section, to include 
the purchased property that improves the functionality of the apartment 
building in the basis of the apartment building for purposes of the 
substantial improvement requirement under section 1400Z-
2(d)(2)(D)(i)(II).
    (iv) Special rules for land and improvements on land--(A) Buildings 
located in a qualified opportunity zone. In accordance with the rules 
set forth in this paragraph (b)(4)(iv)(A), if an eligible entity 
purchases a building located on a parcel of land within the geographic 
borders of a qualified opportunity zone, for purposes of section 1400Z-
2(d)(2)(D)(ii), a substantial improvement to the building is measured by 
the eligible entity's additions to the basis of the building, as 
determined under section 1012.
    (B) Unimproved land. Unimproved land that is within a qualified 
opportunity zone and acquired by purchase in accordance with section 
1400Z-2(d)(2)(D)(i)(I) is not required to be substantially improved 
within the meaning of section 1400Z-2(d)(2)(D)(i)(II) and (d)(2)(D)(ii).
    (C) Exception for insubstantially improved land. Notwithstanding 
paragraph (b)(4)(iv)(B) of this section, if the land is unimproved or 
minimally improved and the eligible entity purchases the land with an 
expectation or an intention to not improve the land by more than an 
insubstantial amount within 30 months after the date of purchase, 
paragraph (b)(4)(iv)(B) of this section does not apply with respect to 
such land and such land is not considered qualified opportunity zone 
business property unless it is substantially improved within the meaning 
of sections 1400Z-2(d)(2)(D)(i)(II) and (d)(2)(D)(ii). In determining 
whether an eligible entity had an expectation or an intention to improve 
the land by more than an insubstantial amount, improvements to the land 
by the eligible entity (including grading, clearing of the land, 
remediation of the contaminated land, or acquisition of related 
qualified opportunity zone business property that facilitates the use of 
the land in a trade or business of the eligible entity) will be taken 
into account.
    (D) Remediation of contaminated land. Betterments to land within the 
meaning of Sec.  1.263(a)-3(j)(1)(i) may be added to the basis of the 
purchased land and included for purposes of section 1400Z-2(d)(2)(D)(ii) 
if the betterments are paid for by the eligible entity.
    (E) Separate improvement to underlying land not required. In 
determining whether the substantial improvement test under section 
1400Z-2(d)(2)(D) has been met with respect to a building, there is no 
requirement that the eligible entity separately substantially improve 
the land upon which the building is located.
    (v) Aggregation of purchased buildings--(A) Substantial improvement 
requirement for eligible building group. For purposes of applying the 
substantial improvement requirement under sections 1400Z-
2(d)(2)(D)(i)(II) and 1400Z-2(d)(2)(D)(ii), an eligible entity may apply 
paragraph (b)(4)(v)(D) of this section with respect to two or more 
buildings located within a qualified opportunity zone or a single series 
of contiguous qualified opportunity zones, as described in paragraph 
(b)(4)(v)(B) or (C) of this section (eligible building group), 
respectively.
    (B) Eligible building group located entirely within parcel of land 
described in single deed. All buildings comprising an eligible building 
group may be treated as a single property as that term is used in 
section 1400Z-2(d)(2)(D)(ii) (single property), if each building 
comprising the eligible building group is located entirely within the 
geographic borders of a parcel of land described in a single deed.
    (C) Eligible building group spanning contiguous parcels of land 
described in separate deeds. An eligible entity may treat all buildings 
comprising an eligible building group located entirely within the 
geographic borders of contiguous parcels of land described in separate 
deeds as a single property to the extent each building is operated as 
part of one or more trades or businesses that--
    (1) Are operated exclusively by the eligible entity;
    (2) Share facilities or share significant centralized business 
elements,

[[Page 1061]]

such as personnel, accounting, legal, manufacturing, purchasing, human 
resources, or information technology resources; and
    (3) Are operated in coordination with, or reliance upon, one or more 
of the trades or businesses (for example, supply chain interdependencies 
or mixed-use facilities).
    (D) Calculation of aggregate building basis and additions to basis 
of single property--(1) In general. For purposes of the substantial 
improvement requirement under section 1400Z-2(d)(2)(D)(ii), the amount 
of basis required to be added to the portion of an eligible building 
group treated as a single property equals the total amount of basis 
calculated by adding the basis of each building comprising the single 
property at the beginning of the 30-month period and additions to the 
basis of each building comprising the single property are aggregated to 
determine satisfaction of the substantial improvement requirement.
    (2) Aggregation of original use property that improves the 
functionality of single property. In applying paragraph (b)(4)(v)(D)(1) 
of this section, purchased property that would otherwise qualify as 
qualified opportunity zone business property may be taken into account 
in determining whether additions to the basis of a single property 
described in paragraph (b)(4)(v)(B) or (C) of this section satisfy the 
substantial improvement requirement under section 1400Z-2(d)(2)(D)(ii).
    (c) Tangible property leased by an eligible entity. In the case of 
tangible property with respect to which an eligible entity is a lessee--
    (1) Qualifying acquisition of possession. The tangible property must 
be acquired by the eligible entity under a lease entered into after 
December 31, 2017.
    (2) Arms-length terms--(i) General rule. The terms of the lease must 
be market rate (that is, the terms of the lease reflect common, arms-
length market pricing in the locale that includes the qualified 
opportunity zone as determined under section 482 and all section 482 
regulations in this chapter) at the time that the lease was entered 
into.
    (ii) Rebuttable presumption regarding unrelated persons. There will 
be a rebuttable presumption that the terms of the lease were market rate 
for leases between persons not related within the meaning of section 
1400Z-2(e)(2) (unrelated persons), and thus, the parties to the lease 
are not required to perform a section 482 analysis.
    (iii) Exception for state, local, and Indian tribal governments. For 
purposes of this paragraph (c)(2), tangible property acquired by lease 
from a state or local government, or an Indian tribal government, is not 
considered tangible property acquired by lease from a related person 
within the meaning of section 1400Z-2(e)(2) (related person).
    (3) Additional requirements for tangible property leased from a 
related person. If the lessor is a related person with respect to an 
eligible entity that is the lessee of tangible property, the 
requirements of paragraphs (c)(3)(i) and (ii) of this section, as 
applicable, must be satisfied in order for the tangible property to be 
treated as qualified opportunity zone business property.
    (i) Prepayments of not more than one year. The lessee at no time 
makes any prepayment in connection with the lease relating to a period 
of use of the tangible property that exceeds 12 months.
    (ii) Purchase of other qualified opportunity zone business property. 
In the case of leased tangible property that is personal property, if 
the original use of the leased tangible personal property in a qualified 
opportunity zone (within the meaning of paragraph (c)(3)(iii) of this 
section) does not commence with the lessee, the property is not 
qualified opportunity zone business property unless, during the relevant 
testing period (as defined in paragraph (c)(3)(iv) of this section), the 
lessee becomes the owner of tangible property that is qualified 
opportunity zone business property having a value not less than the 
value of that leased tangible personal property. There must be 
substantial overlap of the qualified opportunity zone(s) in which the 
owner of the tangible property so acquired uses it and the qualified 
opportunity zone(s) in which that person uses the leased tangible 
personal property.
    (iii) Original use of leased tangible property--(A) In general. For 
purposes of paragraph (c)(3)(ii) of this section, the original use of 
leased tangible

[[Page 1062]]

property in a qualified opportunity zone commences on the date any 
person first places the property in service in the qualified opportunity 
zone for purposes of depreciation (or first uses the property in the 
qualified opportunity zone in a manner that would allow depreciation or 
amortization if that person were the property's owner).
    (B) Used leased tangible property. Used leased tangible personal 
property can satisfy the original use requirement if the property has 
not been previously so used or placed in service in the qualified 
opportunity zone.
    (iv) Relevant testing period. For purposes of paragraph (c)(3)(ii) 
of this section, the relevant testing period is the period that begins 
on the date that the lessee receives possession under the lease of the 
leased tangible personal property and ends on the earlier of--
    (A) The date 30-months after the date the lessee receives possession 
of the leased tangible personal property under the lease; or
    (B) The last day of the term of the lease (within the meaning of 
Sec.  1.1400Z2(d)-1(b)(4)(iii)(D)).
    (4) Plan, intent, or expectation for purchases not for fair market 
value. In the case of real property that is leased by an eligible 
entity, if, at the time the lease is entered into, there was a plan, 
intent, or expectation for the real property to be purchased by the 
eligible entity for an amount of consideration other than the fair 
market value of the real property determined at the time of the purchase 
without regard to any prior lease payments, the leased real property is 
not qualified opportunity zone business property.
    (d) Holding period and use within a qualified opportunity zone of 
owned or leased tangible property--(1) In general. In the case of 
tangible property that is owned or leased by an eligible entity, during 
substantially all of the eligible entity's holding period for the 
tangible property, substantially all of the use of the tangible property 
must be in a qualified opportunity zone.
    (2) Valuation of owned and leased property. For purposes of the 70-
percent use test in paragraph (d)(4) of this section, the value of owned 
and leased property is required to be determined in accordance with the 
valuation methodologies provided in Sec.  1.1400Z2(d)-1(b), and such 
value in the case of leased tangible personal property is to be 
determined on the date the lessee receives possession of the tangible 
personal property under the lease.
    (3) Substantially all of an eligible entity's holding period for 
owned or leased tangible property--(i) In general. For purposes of 
determining whether the holding period requirement in paragraph (d)(1) 
of this section is satisfied, the term substantially all means at least 
90 percent. The holding period requirement is applied on a semiannual 
basis, based on the entire amount of time the eligible entity has owned 
or leased such property. Thus, on each semiannual testing date of the 
eligible entity, the tangible property satisfies the 90-percent 
qualified opportunity zone business property holding period requirement 
of section 1400Z-2(d)(2)(D)(i)(III) only if, during at least 90 percent 
of the period during which the QOF has owned or leased the property, the 
property has satisfied the 70-percent use test in paragraph (d)(4) of 
this section.
    (ii) Semiannual qualified opportunity zone business test. For 
purposes of determining satisfaction of the 90-percent qualified 
opportunity zone business property holding period test described in 
paragraph (d)(3)(i) of this section in the case of a QOF, the 
determination of whether property satisfies the 70-percent use test is 
made on a semiannual basis pursuant to section 1400Z-2(d)(1) and 
paragraph (d)(4) of this section.
    (4) Substantially all of the use of owned or leased tangible 
property in a qualified opportunity zone--(i) Qualified tangible 
property. Tangible property used in a trade or business of an eligible 
entity satisfies the substantially all requirement of paragraph (d)(1) 
of this section if and only if the tangible property is qualified 
tangible property. Qualified tangible property is tangible property that 
satisfies the requirements of paragraph (d)(4)(ii), (iii) (subject to 
the limitation in paragraph (d)(4)(iv) of this section), or (v) of this 
section.
    (ii) 70-percent use test. Tangible property held by a trade or 
business is qualified tangible property to the extent, based on the 
number of days between two consecutive semiannual

[[Page 1063]]

testing dates, not less than 70 percent of the total utilization of the 
tangible property by the trade or business occurs at a location within 
the geographic borders of a qualified opportunity zone (that is, the 70-
percent use test).
    (iii) Safe harbor for tangible property utilized in rendering 
services inside and outside of a qualified opportunity zone. Subject to 
the limitation described in paragraph (d)(4)(iv) of this section, 
tangible property utilized by a trade or business in rendering services 
both inside and outside of the geographic borders of a qualified 
opportunity zone may be treated as qualified tangible property if--
    (A) The tangible property utilized in rendering the service directly 
generates gross income for the trade or business both inside and outside 
of the geographic borders of a qualified opportunity zone;
    (B) The trade or business has an office or other facility located 
within the geographic borders of a qualified opportunity zone (QOZ 
office);
    (C) The tangible property is operated by employees of the trade or 
business who--
    (1) Regularly use a QOZ office of the trade or business in the 
course of carrying out their duties; and
    (2) Are managed directly, actively, and substantially on a day-to-
day basis by one or more employees of the trade or business who carry 
out their duties at a QOZ office; and
    (D) The tangible property is not operated exclusively outside of the 
geographic borders of a qualified opportunity zone for a period longer 
than 14 consecutive days for the generation of gross income for the 
trade or business.
    (iv) Limitation. For purposes of the 70-percent tangible property 
standard, the safe harbor provided in paragraph (d)(4)(iii) of this 
section may not be used to treat more than 20 percent of the tangible 
property of the trade or business as qualified tangible property.
    (v) Safe harbor for tangible property owned by leasing businesses 
with QOZ offices. Tangible property of a trade or business, the 
employees of which use a QOZ office of the trade or business to 
regularly lease such tangible property to customers of the trade or 
business, may be treated as qualified tangible property if--
    (A) Consistent with the normal, usual, or customary conduct of the 
trade or business, when not subject to a lease to a customer of the 
trade or business, the tangible property is parked or otherwise stored 
at a QOZ office; and
    (B) No lease under which a customer of the trade or business 
acquires possession of the tangible property is for a duration 
(including extensions) longer than 30 consecutive days.
    (vi) Use of tangible property in one or more qualified opportunity 
zones. In accordance with paragraphs (d)(4)(ii) through (v) of this 
section, if qualified tangible property is utilized by the trade or 
business in one or more qualified opportunity zones, satisfaction of the 
70-percent use test is determined by aggregating the number of days the 
tangible property is utilized by the trade or business in each qualified 
opportunity zone.
    (vii) Real property straddling a qualified opportunity zone. For 
purposes of satisfying the requirements in this paragraph (d), the rules 
of Sec.  1.1400Z2(d)-1(d)(3)(ix) apply to a QOF or qualified opportunity 
zone business for determining whether real property is situated in a 
qualified opportunity zone.
    (viii) Safe harbor for inventory in transit--(A) In general. In 
determining whether tangible property is used in a qualified opportunity 
zone for purposes of applying the 70-percent use test under paragraph 
(d)(4) of this section, inventory (including raw materials) of a trade 
or business does not fail to be used in a qualified opportunity zone 
solely because the inventory is in transit--
    (1) From a vendor to a facility of the trade or business that is in 
a qualified opportunity zone; or
    (2) From a facility of the trade or business that is in a qualified 
opportunity zone to customers of the trade or business that are not 
located in a qualified opportunity zone.
    (B) No effect from certain events in transit. The distance traveled 
by the inventory while it is in transit, or the fact that the inventory 
is briefly warehoused while in transit, does not

[[Page 1064]]

affect the application of the safe harbor described in paragraph 
(d)(4)(viii) of this section.
    (e) Applicability dates--(1) In general. The provisions of this 
section are applicable for taxable years beginning after March 13, 2020.
    (2) Prior periods. With respect to the portion of a taxpayer's first 
taxable year ending after December 21, 2017, and for taxable years 
beginning after December 21, 2017, and on or before March 13, 2020, a 
taxpayer may choose either--
    (i) To apply the section 1400Z-2 regulations, if applied in a 
consistent manner for all such taxable years (reliance by a taxpayer on 
paragraph (e)(2)(ii) of this section, Sec.  1.1400Z2(a)-1(g)(2)(ii), 
Sec.  1.1400Z2(b)-1(j)(2)(ii), Sec.  1.1400Z2(d)-1(e)(2)(ii), or Sec.  
1.1400Z2(f)-1(d)(2)(ii), is disregarded solely for purposes of the 
consistency requirement under this paragraph (e)(2)(i)); or
    (ii) To rely on the rules in proposed Sec.  1.1400Z2(d)-1 contained 
in the notice of proposed rulemaking (REG-115420-18) published on 
October 29, 2018, as amplified by the notice of proposed rulemaking 
(REG-120186-18) published on May 1, 2019, but only if applied in a 
consistent manner for all such taxable years.

[T.D. 9889, 85 FR 1986, Jan. 13, 2020; 85 FR 19085, Apr. 6, 2020]



Sec.  1.1400Z2(e)-1  [Reserved]



Sec.  1.1400Z2(f)-1  Administrative rules- penalties, anti-abuse, etc.

    (a) In general. Except as provided by Sec.  1.1400Z2(d)-
1(a)(2)(iv)(B) with respect to a taxpayer's first taxable year as a QOF, 
if a QOF fails to satisfy the 90-percent investment standard in section 
1400Z-2(d)(1), then the QOF must pay the statutory penalty set forth in 
section 1400Z-2(f) for each month it fails to meet the 90-percent 
investment standard.
    (b) Time period for a QOF to reinvest certain proceeds--(1) In 
general. If a QOF receives proceeds from the return of capital or the 
sale or disposition of some or all of its qualified opportunity zone 
property within the meaning of section 1400Z-2(d)(2)(A), and if the QOF 
reinvests some or all of the proceeds in qualified opportunity zone 
property by the last day of the 12-month period beginning on the date of 
the distribution, sale, or disposition, then the proceeds, to the extent 
that they are so reinvested, are treated as qualified opportunity zone 
property for purposes of the 90-percent investment standard in section 
1400Z-2(d)(1), but only to the extent that prior to the reinvestment in 
qualified opportunity zone property the proceeds are continuously held 
in cash, cash equivalents, or debt instruments with a term of 18 months 
or less. If reinvestment of the proceeds is delayed by waiting for 
governmental action the application for which is complete, that delay 
does not cause a failure of the 12-month requirement in this paragraph 
(b).
    (2) Federally declared disasters. If the QOF's plan to reinvest some 
or all of the proceeds described in paragraph (b)(1) of this section in 
qualified opportunity zone property is delayed due to a federally 
declared disaster (as defined in section 165(i)(5)(A)), the QOF may 
receive not more than an additional 12 months to reinvest such proceeds, 
provided that the QOF invests such proceeds in the manner originally 
intended before the disaster.
    (c) Anti-abuse rules--(1) General anti-abuse rule. Pursuant to 
section 1400Z-2(e)(4)(C), the rules of section 1400Z-2 and Sec. Sec.  
1.1400Z2(a)-1 through 1.1400Z2(d)-(2), 1.1400Z2(f)-1, 1.1502-14Z, and 
1.1504-3 must be applied in a manner consistent with the purposes of 
section 1400Z-2 and the section 1400Z-2 regulations (as defined in Sec.  
1.1400Z2(a)-1(b)(41)). The purposes of section 1400Z-2 and the section 
1400Z-2 regulations are to provide specified Federal income tax benefits 
to owners of QOFs to encourage the making of longer-term investments, 
through QOFs and qualified opportunity zone businesses, of new capital 
in one or more qualified opportunity zones and to increase the economic 
growth of such qualified opportunity zones. Accordingly, if a 
significant purpose of a transaction is to achieve a Federal income tax 
result that is inconsistent with the purposes of section 1400Z-2 and the 
section 1400Z-2 regulations, a transaction (or series of transactions) 
will be recast or recharacterized for Federal tax purposes as 
appropriate to achieve tax results that are

[[Page 1065]]

consistent with the purposes of section 1400Z-2 and the section 1400Z-2 
regulations. This recasting and recharacterization may include, as 
appropriate, treating an investment as other than a qualifying 
investment. A determination of whether a Federal income tax result is 
inconsistent with the purposes of section 1400Z-2 and the section 1400Z-
2 regulations must be based on all facts and circumstances.
    (2) Special anti-abuse rule for partnerships--(i) In general. In 
addition to being subject to the general anti-abuse rule of paragraph 
(c)(1) of this section, the application of the rules of section 1400Z-2 
and Sec. Sec.  1.1400Z2(a)-1 through 1.1400Z2(d)-2, 1.1400Z2(f)-1, 
1.1502-14Z, and 1.1504-3 to partnerships is also subject to the special 
anti-abuse rule set forth in paragraph (c)(2)(ii) of this section.
    (ii) Special partnership anti-abuse rule. If a partnership is formed 
or availed of with a significant purpose of avoiding the requirements of 
Sec.  1.1400Z2(a)-1(b)(11)(i)(B) that a gain be subject to Federal 
income tax in order to be an eligible gain, the partnership will be 
disregarded in whole or in part for purposes of Sec.  1.1400Z2(a)-
1(b)(11)(i)(B) and (b)(11)(ix)(B) to prevent the creation of a 
qualifying investment by the partnership with respect to any partner or 
partners that would not otherwise satisfy such requirements.
    (3) Examples. The following examples illustrate the anti-abuse rule 
of paragraph (c) of this section.
    (i) Example 1--(A) Facts. Two nonresident alien individuals 
(collectively, the individuals) plan to sell stock at a gain of $50, to 
invest the amount of the resulting capital gain in a QOF, and to make a 
deferral election under section 1400Z-2(a). They make this election with 
the intent of holding the QOF investment for 10 years and then making an 
election to increase the qualifying basis to fair market value under 
section 1400Z-2(c). A gain on a sale of the stock by the individuals, 
however, would not be subject to Federal income tax, and so the gain 
would not support their making a deferral election as a result of the 
requirement in Sec.  1.1400Z2(a)-1(b)(11)(i)(B). Instead of selling the 
stock themselves, the individuals form a domestic partnership with a 
significant purpose of using that partnership to make a deferral 
election with respect to the stock under the exception in Sec.  
1.1400Z2(a)-1(b)(11)(ix)(B). The individuals contribute their stock to 
the partnership in exchange for partnership interests, after which the 
partnership sells the stock and invests the $50 gain in a QOF. Had the 
partnership not made a deferral election, the individuals would not be 
subject to tax on their allocated portion of the partnership's 
recognized gain on the sale of the stock.
    (B) Analysis. Based on these facts, the partnership is formed and 
availed of with a significant purpose to avoid the requirements of Sec.  
1.1400Z2(a)-1(b)(11)(i)(B). Thus, under paragraph (c)(2) of this 
section, the partnership is disregarded for purposes of applying Sec.  
1.1400Z2(a)-1(b)(11)(ix)(B) to the $50 gain, and therefore the 
partnership's investment in the QOF is not a qualifying investment.
    (ii) Example 2--(A) Facts. The facts are the same as in paragraph 
(c)(3)(i)(A) of this section (Example 1), except the individuals 
contribute their stock to an existing partnership, the sole partners of 
which are U.S. citizens, with a significant purpose of the individuals' 
use of the partnership being to make an investment in a QOF and a 
deferral election under the Sec.  1.1400Z2(a)-1(b)(11)(ix)(B) exception 
for partnerships. During the year, the partnership sells property it 
owned before the individuals' contribution, resulting in capital gain of 
$100, all of which is eligible to be invested in a QOF. It also sells 
the stock contributed by the individuals, resulting in $50 of capital 
gain. The partnership invests $150 in a QOF and makes the requisite gain 
deferral election.
    (B) Analysis. Based on these facts, the partnership is availed of by 
the individuals with a significant purpose to avoid the requirements of 
Sec.  1.1400Z2(a)-1(b)(11)(i)(B). Thus, under paragraph (c)(2) of this 
section, the partnership is disregarded for purposes of applying Sec.  
1.1400Z2(a)-1(b)(11)(i)(B) and (b)(11)(ix)(B) with respect to the $50 
capital gain from the sale of the individuals' contributed stock and 
that gain fails to be eligible gain. Under Sec.  1.1400Z2(a)-1(b), no 
section 1400Z-2(a)

[[Page 1066]]

election is available for that gain and the partnership will have a 
mixed-funds investment, $100 of which is a qualifying investment and $50 
of which is a non-qualifying investment.
    (iii) Example 3--(A) Facts. Entity C is a QOF that meets the 
requirements of section 1400Z-2(d)(1). Entity C owns qualified 
opportunity zone stock in a domestic corporation described in section 
1400Z-2(d)(2)(B) (Corporation C), which operates a qualified opportunity 
zone business. Entity C also owns Corporation D stock, which is not 
qualified opportunity zone stock, which stock is less than 10% of the 
assets of Entity C. Under section 1400Z-2(e)(2), these stock holdings 
cause Entity C to be related to both Corporation C and Corporation D. On 
date 1, under section 1400Z-2(e)(2), Individual S is not a related 
person with respect to Entity C, Corporation C, or Corporation D. On 
that date, Individual S sells tangible property to Corporation C (Asset 
1) for use in Corporation C's qualified opportunity zone business and 
sells a second asset to Corporation D (Asset 2). Both items sold were 
capital assets (as defined in section 1221), and had an adjusted basis 
of $0. As a result, Individual S realizes gain of $100 from the sale to 
Corporation C and $75 from the sale to Corporation D. At the time of the 
sale Individual S has a plan or intent to invest $175 in Entity C and to 
make deferral elections under section 1400Z-2(a)(1) with respect to the 
gain from the two sales. On date 2, for $175 Individual S acquired an 
eligible interest in Entity C, an acquisition that causes Individual S 
to become a related person with respect to Entity C within the meaning 
of section 1400Z-2(e)(2). Analysis. Under paragraph (c)(1) of this 
section, Individual S's $175 gain is not an eligible gain and cannot be 
the subject a deferral election under section 1400Z-2(a)(1). The gain 
fails to satisfy Sec.  1.1400Z2a-1(b)(11)(i)(C) because of Individual 
S's plan to acquire sufficient equity in Entity C to become related to 
Corporations C and D. Moreover, for the same reason, the tangible 
property that Corporation C purchased from Individual S fails to satisfy 
the requirement that a purchase of qualified opportunity zone business 
property must be from an unrelated person. See sections 1400Z-
2(d)(2)(D)(i)(I) and 179(d)(2)(A).
    (B) Circular movement of consideration. The facts are the same as in 
paragraph (c)(3)(iii)(A) of this section (this Example 3), except that 
Entity C contributes the $100 and $75 (received from Individual S) to 
Corporations C and D, respectively, as part of a plan that includes each 
transaction described in paragraph (c)(3)(iii)(A) (collectively, the 
transaction series). Under the step transaction doctrine and circular 
cash flow principles, this circular movement of consideration is 
disregarded for Federal income tax purposes, including for purposes of 
section 1400Z-2 and the section 1400Z-2 regulations. Therefore, the 
transaction series is treated for Federal income tax purposes as a 
contribution by Individual S of Assets 1 and 2 to Entity C in exchange 
for an eligible interest in Entity C, followed by a contribution by 
Entity C of Assets 1 and 2 to Corporations C and D, respectively. This 
result also would obtain if Individual S were not related to Entity C 
immediately following Individual S's acquisition of its eligible 
interest from Entity C. See Rev. Rul. 83-142, 1983-2 C.B. 68; Rev. Rul. 
78-397, 1978-2 C.B. 150.
    (iv) Example 4--(A) Facts. Entity D is a QOF that meets the 
requirements of section 1400Z-2(d)(1). Entity D owns a majority 
qualified opportunity zone partnership interest in a domestic 
partnership, Partnership D described in section 1400Z-2(d)(2)(C). Entity 
D organized Partnership D for the purpose of being a qualified 
opportunity zone business. Partnership D acquires a tract of land 
located in a qualified opportunity zone. At the time of the acquisition 
of that land, there was no plan or intent to develop or otherwise 
utilize the land in a trade or business that would increase 
substantially the economic productivity of the land. Instead, there was 
a plan to pave the land for use as a parking lot. Partnership D planned 
to install a gate to the paved parking area, a small structure that 
would serve as an office for a parking attendant, and two self-pay 
stations for use by customers. The parking lot was not reasonably 
expected to expand significantly, and the initial small number of 
employees was not reasonably expected significantly to increase.

[[Page 1067]]

A significant purpose for the acquisition of the land was to sell the 
land at a profit and to exclude any gain from appreciation by making an 
election under section 1400Z-2(c).
    (B) Analysis. Under paragraph (c)(1) of this section, the 
acquisition of the land is a transaction carried out to achieve a tax 
result that is inconsistent with the purposes of section 1400Z-2 and the 
section 1400Z-2 regulations. Consequently, the land is not qualified 
opportunity zone business property and gain from the sale of the land 
will not be eligible to be excluded from gross income under section 
1400Z-2(c). This recharacterization of the qualification of the land for 
Federal tax purposes is appropriate to ensure that the tax results of 
the transaction, including the status of Partnership D as a qualified 
opportunity zone business, are consistent with the purposes of section 
1400Z-2 and the section 1400Z-2 regulations. Partnership D fails to be a 
qualified opportunity zone business unless other assets that it owns or 
leases are qualified opportunity zone business property that satisfy 
section 1400Z-2(d)(3)(A)(i), and the other requirements of section 
1400Z-2 and the section 1400Z-2 regulations.
    (v) Example 5--(A) Facts. The facts are the same as in paragraph 
(c)(3)(iv) of this section, except that Partnership D, in year 1, 
acquired a tract of land located in a qualified opportunity zone that 
was previously used for hog and pig farming. On its Form 1065T the 
previous owner, also a partnership, properly described those activities 
with the principal business activity code 112210. During the several-
year period ending on the date of the acquisition of the land, the value 
of the land had significantly increased and D projected the land to 
continue to increase in value by ten-fold during the following 10-year 
period. At the time of the acquisition, Partnership D intended to 
conduct sheep and goat farming activities on the land and, accordingly, 
planned to use principal business activity code 112400 on its Form 1065. 
According to its plan, Partnership D conducted sheep and goat farming 
activities on the land during the 10-year period beginning on the date 
of acquisition of the land. During the 10-year period, Partnership D 
made significant capital improvements to the land, including 
improvements to existing farm structures, construction of new farm 
structures, and installation of a new irrigation system. As expected, 
the value of the land substantially increased during the following 
decade. The owners' entire interest in Partnership D was a qualifying 
investment, and, after having held it for at least 10 years the owners 
sold the entire interest at a large gain. As planned the owners made an 
election under section 1400Z-2(c) in order to avoid tax on the gain from 
the sale.
    (B) Analysis. The modification of the land to suit sheep and goat 
farming activity from its previous use of hog and pig farming, and the 
significant capital improvements made to land, comprise a significant 
investment in the business activities on the land. Thus, Partnership D 
did not hold the land solely for speculative investment. As a result, 
under paragraph (c)(1) of this section, the acquisition of the land, the 
activities conducted on the land, the capital improvements made to the 
land, and the later disposition of the land for a significant profit are 
not inconsistent with the purposes of section 1400Z-2 and the section 
1400Z-2 regulations.
    (vi) Example 6--(A) Facts. Individuals intend to sell stock at a 
capital gain and invest the resulting gain in a QOF pursuant to a 
deferral election under section 1400Z-2(a). The individuals form Entity 
F and file Form 8996 certifying that Entity F is a QOF organized for the 
purpose of investing in qualified opportunity zone property. Individuals 
have no intention of investing in qualified opportunity zone property. 
Instead individuals intend to invest in property other than qualified 
opportunity zone property hoping that the property will appreciate 
substantially in value and the individuals will be able to exclude any 
appreciation on their investment from gross income by making an election 
under section 1400Z-2(c). Each year Entity F files Form 8996 and pays 
the applicable penalty under section 1400Z-2(f). After holding their 
interests in Entity F for 10 years, individuals sell their interest in 
Entity F to an unrelated third party for a substantial gain and make an 
election to exclude

[[Page 1068]]

the appreciation on their investment under section 1400Z-2(c).
    (B) Analysis. A significant purpose of the transaction is to achieve 
a tax result that is inconsistent with the purposes of section 1400Z-2 
and the section 1400Z-2 regulations, and the transaction will be recast 
and recharacterized for Federal tax purposes so that Entity F is not a 
QOF and the individuals are not eligible for the elections under 
sections 1400Z-2(a) and (c).
    (vii) Example 7--(A) Facts. Entity E treats itself as a QOF that 
meets the requirements of section 1400Z-2(d)(1). Entity E owns all of 
the stock in a domestic corporation, Corporation E, and Entity E treats 
this stock as qualified opportunity zone stock. Corporation E uses the 
majority of the cash invested by Entity E to purchase gold bars from 
unrelated parties within the meaning of section 1400Z-2(e)(2). The 
aggregate value of the gold bars is $1000. Corporation E rents a safe 
deposit box in a qualified opportunity zone and hires one employee to 
manage the purchase and sale of the gold bars. Each year Corporation E 
purchases a small number of additional gold bars and sells to customers 
a portion of the gold bars on hand. The aggregate value of both the 
purchases and sales approximates half the value of the bars held at the 
beginning of the year. Corporation E seeks to treat the gold bars as 
qualified opportunity zone business property within the meaning of 
section 1400Z-2(d)(3). At the time that Corporation E began the gold bar 
business, it did not reasonably expect the business to expand 
significantly, nor was the number of employees reasonably expected to 
increase. Gold, however, was reasonably expected to appreciate. Ten 
years after the formation of Entity E, the investors in Entity E sell 
all of their interests in the entity and seek to make an election under 
section 1400Z-2(c) to exclude any gain from appreciation.
    (B) Analysis. Under paragraph (c)(1) of this section, a significant 
purpose of Corporation E's activities is to achieve a tax result that is 
inconsistent with the purposes of section 1400Z-2 and the section 1400Z-
2 regulations. The gold bar business carried out by Corporation E was 
merely speculative in nature and was not expected to increase economic 
activity in the subject qualified opportunity zone in a manner 
consistent with the purposes of section 1400Z-2 and the section 1400Z-2 
regulations. As a result, Corporation E's activities are carried on to 
achieve tax results that are inconsistent with the purposes of section 
1400Z-2 and the section 1400Z-2 regulations. Consequently, the gold bars 
are not qualified opportunity zone property. Corporation E fails to be a 
qualified opportunity zone business unless other assets that it owns or 
leases are qualified opportunity zone business property that satisfy 
section 1400Z-2(d)(3)(A)(i) (along with other requirements). If 
Corporation E fails to be a qualified opportunity zone business, 
Corporation E's stock fails to be qualified opportunity zone property in 
the hands of Entity E.
    (d) Applicability date--(1) In general. The provisions of this 
section are applicable for taxable years beginning after March 13, 2020.
    (2) Prior periods. With respect to the portion of a taxpayer's first 
taxable year ending after December 21, 2017, that began on March 13, 
2020, a taxpayer may choose either--
    (i) To apply the section 1400Z-2 regulations, if applied in a 
consistent manner for all such taxable years (reliance by a taxpayer on 
paragraph (d)(2)(ii) of this section, Sec.  1.1400Z2(a)-1(g)(2)(ii), 
Sec.  1.1400Z2(b)-1(j)(2)(ii), Sec.  1.1400Z2(d)-1(e)(2)(ii), or Sec.  
1.1400Z2(d)-2(e)(2)(ii), is disregarded for purposes of the consistency 
requirement under this paragraph (d)(2)(i)); or
    (ii) To rely on the rules in proposed Sec.  1.1400Z2(f)-1 contained 
in the notice of proposed rulemaking (REG-115420-18) published on 
October 29, 2018, as amplified by the notice of proposed rulemaking 
(REG-120186-18) published on May 1, 2019, but only if applied in a 
consistent manner for all such taxable years.

[T.D. 9889, 85 FR 1991, Jan. 13, 2020, as amended at 85 FR 19085, Apr. 
6, 2020]

[[Page 1069]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  Table of OMB Control Numbers
  List of CFR Sections Affected

[[Page 1071]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2022)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 1072]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 1073]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 1074]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Parts 10100--10199)
       CII  U.S. Office of Special Counsel (Parts 10200--10299)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)

[[Page 1075]]

        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  [Reserved]
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 1076]]

         L  Rural Business-Cooperative Service, and Rural 
                Utilities Service, Department of Agriculture 
                (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Agricultural Marketing Service (Fair Trade Practices 
                Program), Department of Agriculture (Parts 200--
                299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  (Parts 900--999) [Reserved]
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)

[[Page 1077]]

        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, Department of the 
                Treasury (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)

[[Page 1078]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
        XV  Office of the Under-Secretary for Economic Affairs, 
                Department of Commerce (Parts 1500--1599)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

[[Page 1079]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Agency for Global Media (Parts 500--599)
       VII  U.S. International Development Finance Corporation 
                (Parts 700--799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 1080]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799) 
                [Reserved]
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]

[[Page 1081]]

        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--799)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)

[[Page 1082]]

        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance

[[Page 1083]]

         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Great Lakes St. Lawrence Seaway Development 
                Corporation, Department of Transportation (Parts 
                400--499)

[[Page 1084]]

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)

[[Page 1085]]

       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)
        IX  Federal Permitting Improvement Steering Council (Part 
                1900)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 1086]]

       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Federal Acquisition Supply Chain Security
       201  Federal Acquisition Security Council (Part 201)
            Subtitle E [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 1087]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

[[Page 1088]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)

[[Page 1089]]

        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 1090]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 1091]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2022)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 1092]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Affairs, Office of the Under-          15, XV
       Secretary for
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I

[[Page 1093]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Office of the Under-Secretary   15, XV
     for
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV

[[Page 1094]]

Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Acquisition Security Council              41, 201
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Permitting Improvement Steering Council   40, IX
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 1095]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes St. Lawrence Seaway Development       33, IV
     Corporation
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
   Secretary
[[Page 1096]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Environmental Enforcement, Bureau    30, II
       of
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Federal Acquisition Regulation                  48, 29

[[Page 1097]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II

[[Page 1098]]

National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Science and Technology Policy, Office of          32, XXIV; 47, II
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI

[[Page 1099]]

  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
Federal Acquisition Security Council              41, 201
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Great Lakes St. Lawrence Seaway Development     33, IV
       Corporation
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X; 5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
U.S. Office of Special Counsel                    5, CII
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1101]]







                      Table of OMB Control Numbers



The OMB control numbers for chapter I of title 26 were consolidated into 
Sec. Sec.  601.9000 and 602.101 at 50 FR 10221, Mar. 14, 1985. At 61 FR 
58008, Nov. 12, 1996, Sec.  601.9000 was removed. Section 602.101 is 
reprinted below for the convenience of the user.



PART 602_OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT--Table of Contents



    Authority: 26 U.S.C. 7805.



Sec.  602.101  OMB Control numbers.

    (a) Purpose. This part collects and displays the control numbers 
assigned to collections of information in Internal Revenue Service 
regulations by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1980. The Internal Revenue Service intends 
that this part comply with the requirements of Sec. Sec.  1320.7(f), 
1320.12, 1320.13, and 1320.14 of 5 CFR part 1320 (OMB regulations 
implementing the Paperwork Reduction Act), for the display of control 
numbers assigned by OMB to collections of information in Internal 
Revenue Service regulations. This part does not display control numbers 
assigned by the Office of Management and Budget to collections of 
information of the Bureau of Alcohol, Tobacco, and Firearms.
    (b) Display.

------------------------------------------------------------------------
                                                             Current OMB
     CFR part or section where identified and described      control No.
------------------------------------------------------------------------
1.1(h)-1(e)................................................    1545-1654
1.25-1T....................................................    1545-0922
                                                               1545-0930
1.25-2T....................................................    1545-0922
                                                               1545-0930
1.25-3T....................................................    1545-0922
                                                               1545-0930
1.25-4T....................................................    1545-0922
1.25-5T....................................................    1545-0922
1.25-6T....................................................    1545-0922
1.25-7T....................................................    1545-0922
1.25-8T....................................................    1545-0922
1.25A-1....................................................    1545-1630
1.28-1.....................................................    1545-0619
1.31-2.....................................................    1545-0074
1.32-2.....................................................    1545-0074
1.32-3.....................................................    1545-1575
1.36B-5....................................................    1545-2232
1.37-1.....................................................    1545-0074
1.37-3.....................................................    1545-0074
1.41-2.....................................................    1545-0619
1.41-3.....................................................    1545-0619
1.41-4A....................................................    1545-0074
1.41-4 (b) and (c).........................................    1545-0074
1.41-8(b)..................................................    1545-1625
1.41-8(d)..................................................    1545-0732
1.41-9.....................................................    1545-0619
1.42-1T....................................................    1545-0984
                                                               1545-0988
1.42-5.....................................................    1545-1357
1.42-6.....................................................    1545-1102
1.42-8.....................................................    1545-1102
1.42-10....................................................    1545-1102
1.42-13....................................................    1545-1357
1.42-14....................................................    1545-1423
1.42-17....................................................    1545-1357
1.42-18....................................................    1545-2088
1.43-3(a)(3)...............................................    1545-1292
1.43-3(b)(3)...............................................    1545-1292
1.44B-1....................................................    1545-0219
1.45D-1....................................................    1545-1765
1.45G-1....................................................    1545-2031
1.46-1.....................................................    1545-0123
                                                               1545-0155
1.46-3.....................................................    1545-0155
1.46-4.....................................................    1545-0155
1.46-5.....................................................    1545-0155
1.46-6.....................................................    1545-0155
1.46-8.....................................................    1545-0155
1.46-9.....................................................    1545-0155
1.46-10....................................................    1545-0118
1.47-1.....................................................    1545-0155
                                                               1545-0166
1.47-3.....................................................    1545-0155
                                                               1545-0166
1.47-4.....................................................    1545-0123
1.47-5.....................................................    1545-0092
1.47-6.....................................................    1545-0099
1.48-3.....................................................    1545-0155
1.48-4.....................................................    1545-0155
                                                               1545-0808
1.48-5.....................................................    1545-0155
1.48-6.....................................................    1545-0155
1.48-12....................................................    1545-0155
                                                               1545-1783
1.50A-1....................................................    1545-0895
1.50A-2....................................................    1545-0895
1.50A-3....................................................    1545-0895
1.50A-4....................................................    1545-0895
1.50A-5....................................................    1545-0895
1.50A-6....................................................    1545-0895
1.50A-7....................................................    1545-0895
1.50B-1....................................................    1545-0895
1.50B-2....................................................    1545-0895
1.50B-3....................................................    1545-0895
1.50B-4....................................................    1545-0895

[[Page 1102]]

 
1.50B-5....................................................    1545-0895
1.51-1.....................................................    1545-0219
                                                               1545-0241
                                                               1545-0244
                                                               1545-0797
1.52-2.....................................................    1545-0219
1.52-3.....................................................    1545-0219
1.56(g)-1..................................................    1545-1233
1.57-5.....................................................    1545-0227
1.58-1.....................................................    1545-0175
1.59-1.....................................................    1545-1903
1.61-2.....................................................    1545-0771
1.61-4.....................................................    1545-0187
1.61-15....................................................    1545-0074
1.62-2.....................................................    1545-1148
1.63-1.....................................................    1545-0074
1.66-4.....................................................    1545-1770
1.67-2T....................................................    1545-0110
1.67-3.....................................................    1545-1018
1.67-3T....................................................    1545-0118
1.71-1T....................................................    1545-0074
1.72-4.....................................................    1545-0074
1.72-6.....................................................    1545-0074
1.72-9.....................................................    1545-0074
1.72-17....................................................    1545-0074
1.72-17A...................................................    1545-0074
1.72-18....................................................    1545-0074
1.74-1.....................................................    1545-1100
1.79-2.....................................................    1545-0074
1.79-3.....................................................    1545-0074
1.83-2.....................................................    1545-0074
1.83-5.....................................................    1545-0074
1.83-6.....................................................    1545-1448
1.103-10...................................................    1545-0123
                                                               1545-0940
1.103A-2...................................................    1545-0720
1.105-4....................................................    1545-0074
1.105-5....................................................    1545-0074
1.105-6....................................................    1545-0074
1.108-4....................................................    1545-1539
1.108-5....................................................    1545-1421
1.108-7....................................................    1545-2155
1.108(i)-1.................................................    1545-2147
1.108(i)-2.................................................    1545-2147
1.110-1....................................................    1545-1661
1.117-5....................................................    1545-0869
1.118-2....................................................    1545-1639
1.119-1....................................................    1545-0067
1.120-3....................................................    1545-0057
1.121-1....................................................    1545-0072
1.121-2....................................................    1545-0072
1.121-3....................................................    1545-0072
1.121-4....................................................    1545-0072
                                                               1545-0091
1.121-5....................................................    1545-0072
1.127-2....................................................    1545-0768
1.132-2....................................................    1545-0771
1.132-5....................................................    1545-0771
1.132-9(b).................................................    1545-1676
1.141-1....................................................    1545-1451
1.141-12...................................................    1545-1451
1.142-2....................................................    1545-1451
1.142(f)(4)-1..............................................    1545-1730
1.148-0....................................................    1545-1098
1.148-1....................................................    1545-1098
1.148-2....................................................    1545-1098
                                                               1545-1347
1.148-3....................................................    1545-1098
                                                               1545-1347
1.148-4....................................................    1545-1098
                                                               1545-1347
1.148-5....................................................    1545-1098
                                                               1545-1490
1.148-6....................................................    1545-1098
                                                               1545-1451
1.148-7....................................................    1545-1098
                                                               1545-1347
1.148-8....................................................    1545-1098
1.148-11...................................................    1545-1098
                                                               1545-1347
1.149(e)-1.................................................    1545-0720
1.150-1....................................................    1545-1347
1.151-1....................................................    1545-0074
1.152-3....................................................    1545-0071
                                                               1545-1783
1.152-4....................................................    1545-0074
1.152-4T...................................................    1545-0074
1.162-1....................................................    1545-0139
1.162-2....................................................    1545-0139
1.162-3....................................................    1545-0139
1.162-4....................................................    1545-0139
1.162-5....................................................    1545-0139
1.162-6....................................................    1545-0139
1.162-7....................................................    1545-0139
1.162-8....................................................    1545-0139
1.162-9....................................................    1545-0139
1.162-10...................................................    1545-0139
1.162-11...................................................    1545-0139
1.162-12...................................................    1545-0139
1.162-13...................................................    1545-0139
1.162-14...................................................    1545-0139
1.162-15...................................................    1545-0139
1.162-16...................................................    1545-0139
1.162-17...................................................    1545-0139
1.162-18...................................................    1545-0139
1.162-19...................................................    1545-0139
1.162-20...................................................    1545-0139
1.162-24...................................................    1545-2115
1.162-27...................................................    1545-1466
1.163-5....................................................    1545-0786
                                                               1545-1132
1.163-8T...................................................    1545-0995
1.163-10T..................................................    1545-0074
1.163-13...................................................    1545-1491
1.163(d)-1.................................................    1545-1421
1.165-1....................................................    1545-0177
1.165-2....................................................    1545-0177
1.165-3....................................................    1545-0177
1.165-4....................................................    1545-0177
1.165-5....................................................    1545-0177
1.165-6....................................................    1545-0177
1.165-7....................................................    1545-0177
1.165-8....................................................    1545-0177
1.165-9....................................................    1545-0177
1.165-10...................................................    1545-0177
1.165-11...................................................    1545-0074
                                                               1545-0177
                                                               1545-0786
1.165-12...................................................    1545-0786
1.166-1....................................................    1545-0123
1.166-2....................................................    1545-1254
1.166-4....................................................    1545-0123
1.166-10...................................................    1545-0123
1.167(a)-5T................................................    1545-1021
1.167(a)-7.................................................    1545-0172
1.167(a)-11................................................    1545-0152
                                                               1545-0172
1.167(a)-12................................................    1545-0172
1.167(d)-1.................................................    1545-0172
1.167(e)-1.................................................    1545-0172
1.167(f)-11................................................    1545-0172
1.167(l)-1.................................................    1545-0172
1.168(d)-1.................................................    1545-1146
1.168(i)-1.................................................    1545-1331

[[Page 1103]]

 
1.168-5....................................................    1545-0172
1.169-4....................................................    1545-0172
1.170-1....................................................    1545-0074
1.170-2....................................................    1545-0074
1.170-3....................................................    1545-0123
1.170A-1...................................................    1545-0074
1.170A-2...................................................    1545-0074
1.170A-4(A)(b).............................................    1545-0123
1.170A-8...................................................    1545-0074
1.170A-9...................................................    1545-0052
                                                               1545-0074
1.170A-11..................................................    1545-0074
                                                               1545-0123
                                                               1545-1868
1.170A-12..................................................    1545-0020
                                                               1545-0074
1.170A-13..................................................    1545-0074
                                                               1545-0754
                                                               1545-0908
                                                               1545-1431
1.170A-13(f)...............................................    1545-1464
1.170A-14..................................................    1545-0763
1.170A-15..................................................    1545-1953
1.170A-16..................................................    1545-1953
1.170A-17..................................................    1545-1953
1.170A-18..................................................    1545-1953
1.171-4....................................................    1545-1491
1.171-5....................................................    1545-1491
1.172-1....................................................    1545-0172
1.172-13...................................................    1545-0863
1.173-1....................................................    1545-0172
1.174-3....................................................    1545-0152
1.174-4....................................................    1545-0152
1.175-3....................................................    1545-0187
1.175-6....................................................    1545-0152
1.179-2....................................................    1545-1201
1.179-3....................................................    1545-1201
1.179-5....................................................    1545-0172
                                                               1545-1201
1.179B-1T..................................................    1545-2076
1.179C-1...................................................    1545-2103
1.179C-1T..................................................    1545-2103
1.180-2....................................................    1545-0074
1.181-1....................................................    1545-2059
1.181-2....................................................    1545-2059
1.181-3....................................................    1545-2059
1.182-6....................................................    1545-0074
1.183-1....................................................    1545-0195
1.183-2....................................................    1545-0195
1.183-3....................................................    1545-0195
1.183-4....................................................    1545-0195
1.190-3....................................................    1545-0074
1.194-2....................................................    1545-0735
1.194-4....................................................    1545-0735
1.195-1....................................................    1545-1582
1.197-1T...................................................    1545-1425
1.197-2....................................................    1545-1671
1.199-6....................................................    1545-1966
1.213-1....................................................    1545-0074
1.215-1T...................................................    1545-0074
1.217-2....................................................    1545-0182
1.243-3....................................................    1545-0123
1.243-4....................................................    1545-0123
1.243-5....................................................    1545-0123
1.248-1....................................................    1545-0172
1.261-1....................................................    1545-1041
1.263(a)-1.................................................    1545-2248
1.263(a)-3.................................................    1545-2248
1.263(a)-5.................................................    1545-1870
1.263(e)-1.................................................    1545-0123
1.263A-1...................................................    1545-0987
1.263A-1T..................................................    1545-0187
1.263A-2...................................................    1545-0987
1.263A-3...................................................    1545-0987
1.263A-8(b)(2)(iii)........................................    1545-1265
1.263A-9(d)(1).............................................    1545-1265
1.263A-9(f)(1)(ii).........................................    1545-1265
1.263A-9(f)(2)(iv).........................................    1545-1265
1.263A-9(g)(2)(iv)(C)......................................    1545-1265
1.263A-9(g)(3)(iv).........................................    1545-1265
1.265-1....................................................    1545-0074
1.265-2....................................................    1545-0123
1.266-1....................................................    1545-0123
1.267(f)-1.................................................    1545-0885
1.268-1....................................................    1545-0184
1.274-1....................................................    1545-0139
1.274-2....................................................    1545-0139
1.274-3....................................................    1545-0139
1.274-4....................................................    1545-0139
1.274-5....................................................    1545-0771
1.274-5A...................................................    1545-0139
                                                               1545-0771
1.274-5T...................................................    1545-0074
                                                               1545-0172
                                                               1545-0771
1.274-6....................................................    1545-0139
                                                               1545-0771
1.274-6T...................................................    1545-0074
                                                               1545-0771
1.274-7....................................................    1545-0139
1.274-8....................................................    1545-0139
1.279-6....................................................    1545-0123
1.280C-4...................................................    1545-1155
1.280F-3T..................................................    1545-0074
1.280G-1...................................................    1545-1851
1.281-4....................................................    1545-0123
1.302-4....................................................    1545-0074
1.305-3....................................................    1545-0123
1.305-5....................................................    1545-1438
1.307-2....................................................    1545-0074
1.312-15...................................................    1545-0172
1.316-1....................................................    1545-0123
1.331-1....................................................    1545-0074
1.332-4....................................................    1545-0123
1.332-6....................................................    1545-2019
1.336-2....................................................    1545-2125
1.336-4....................................................    1545-2125
1.337(d)-1.................................................    1545-1160
1.337(d)-2.................................................    1545-1160
                                                               1545-1774
1.337(d)-4.................................................    1545-1633
1.337(d)-5.................................................    1545-1672
1.337(d)-6.................................................    1545-1672
1.337(d)-7.................................................    1545-1672
1.338-2....................................................    1545-1658
1.338-5....................................................    1545-1658
1.338-10...................................................    1545-1658
1.338-11...................................................    1545-1990
1.338(h)(10)-1.............................................    1545-1658
1.338(i)-1.................................................    1545-1990
1.351-3....................................................    1545-2019
1.355-5....................................................    1545-2019
1.362-2....................................................    1545-0123
1.362-4....................................................    1545-2247
1.367(a)-1T................................................    1545-0026
1.367(a)-2T................................................    1545-0026
1.367(a)-3.................................................    1545-0026
                                                               1545-1478
1.367(a)-3T................................................    1545-2183
1.367(a)-6T................................................    1545-0026
1.367(a)-7.................................................    1545-2183
1.367(a)-7T................................................    1545-2183
1.367(a)-8.................................................    1545-1271
                                                               1545-2056

[[Page 1104]]

 
                                                               1545-2183
1.367(b)-1.................................................    1545-1271
1.367(b)-3T................................................    1545-1666
1.367(d)-1T................................................    1545-0026
1.367(e)-1.................................................    1545-1487
1.367(e)-2.................................................    1545-1487
1.368-1....................................................    1545-1691
1.368-3....................................................    1545-2019
1.371-1....................................................    1545-0123
1.371-2....................................................    1545-0123
1.374-3....................................................    1545-0123
1.381(b)-1.................................................    1545-0123
1.381(c)(4)-1..............................................    1545-0123
                                                               1545-0152
                                                               1545-0879
1.381(c)(5)-1..............................................    1545-0123
                                                               1545-0152
1.381(c)(6)-1..............................................    1545-0123
                                                               1545-0152
1.381(c)(8)-1..............................................    1545-0123
1.381(c)(10)-1.............................................    1545-0123
1.381(c)(11)-1(k)..........................................    1545-0123
1.381(c)(13)-1.............................................    1545-0123
1.381(c)(17)-1.............................................    1545-0045
1.381(c)(22)-1.............................................    1545-1990
1.381(c)(25)-1.............................................    1545-0045
1.382-1T...................................................    1545-0123
1.382-2....................................................    1545-0123
1.382-2T...................................................    1545-0123
1.382-3....................................................    1545-1281
                                                               1545-1345
1.382-4....................................................    1545-1120
1.382-6....................................................    1545-1381
1.382-8....................................................    1545-1434
1.382-9....................................................    1545-1120
                                                               1545-1260
                                                               1545-1275
                                                               1545-1324
1.382-11...................................................    1545-2019
1.382-91...................................................    1545-1260
                                                               1545-1324
1.383-1....................................................    1545-0074
                                                               1545-1120
1.401-1....................................................    1545-0020
                                                               1545-0197
                                                               1545-0200
                                                               1545-0534
                                                               1545-0710
1.401(a)-11................................................    1545-0710
1.401(a)-20................................................    1545-0928
1.401(a)-31................................................    1545-1341
1.401(a)-50................................................    1545-0710
1.401(a)(9)-1..............................................    1545-1573
1.401(a)(9)-3..............................................    1545-1466
1.401(a)(9)-4..............................................    1545-1573
1.401(a)(9)-6..............................................    1545-2234
1.401(a)(31)-1.............................................    1545-1341
1.401(b)-1.................................................    1545-0197
1.401(f)-1.................................................    1545-0710
1.401(k)-1.................................................    1545-1039
                                                               1545-1069
                                                               1545-1669
                                                               1545-1930
1.401(k)-2.................................................    1545-1669
1.401(k)-3.................................................    1545-1669
1.401(k)-4.................................................    1545-1669
1.401(m)-3.................................................    1545-1699
1.401-14...................................................    1545-0710
1.402(c)-2.................................................    1545-1341
1.402(f)-1.................................................    1545-1341
                                                               1545-1632
1.402A-1...................................................    1545-1992
1.403(b)-1.................................................    1545-0710
1.403(b)-3.................................................    1545-0996
1.403(b)-7.................................................    1545-1341
1.403(b)-10................................................    1545-2068
1.404(a)-12................................................    1545-0710
1.404A-2...................................................    1545-0123
1.404A-6...................................................    1545-0123
1.408-2....................................................    1545-0390
1.408-5....................................................    1545-0747
1.408-6....................................................    1545-0203
                                                               1545-0390
1.408-7....................................................    1545-0119
1.408(q)-1.................................................    1545-1841
1.408A-2...................................................    1545-1616
1.408A-4...................................................    1545-1616
1.408A-5...................................................    1545-1616
1.408A-7...................................................    1545-1616
1.410(a)-2.................................................    1545-0710
1.410(d)-1.................................................    1545-0710
1.411(a)-11................................................    1545-1471
                                                               1545-1632
1.411(d)-4.................................................    1545-1545
1.411(d)-6.................................................    1545-1477
1.412(c)(1)-2..............................................    1545-0710
1.412(c)(2)-1..............................................    1545-0710
1.412(c)(3)-2..............................................    1545-0710
1.414(c)-5.................................................    1545-0797
1.414(r)-1.................................................    1545-1221
1.415-2....................................................    1545-0710
1.415-6....................................................    1545-0710
1.417(a)(3)-1..............................................    1545-0928
1.417(e)-1.................................................    1545-1471
                                                               1545-1724
1.417(e)-1T................................................    1545-1471
1.419A(f)(6)-1.............................................    1545-1795
1.422-1....................................................    1545-0820
1.430(f)-1.................................................    1545-2095
1.430(g)-1.................................................    1545-2095
1.430(h)(2)-1..............................................    1545-2095
1.432(e)(9)-1T.............................................    1545-2260
1.436-1....................................................    1545-2095
1.441-2....................................................    1545-1748
1.442-1....................................................    1545-0074
                                                               1545-0123
                                                               1545-0134
                                                               1545-0152
                                                               1545-0820
                                                               1545-1748
1.443-1....................................................    1545-0123
1.444-3T...................................................    1545-1036
1.444-4....................................................    1545-1591
1.446-1....................................................    1545-0074
                                                               1545-0152
1.446-4(d).................................................    1545-1412
1.448-1(g).................................................    1545-0152
1.448-1(h).................................................    1545-0152
1.448-1(i).................................................    1545-0152
1.448-2....................................................    1545-1855
1.448-2T...................................................    1545-0152
                                                               1545-1855
1.451-1....................................................    1545-0091
1.451-4....................................................    1545-0123
1.451-6....................................................    1545-0074
1.451-7....................................................    1545-0074
1.453-1....................................................    1545-0152
1.453-2....................................................    1545-0152
1.453-8....................................................    1545-0152
                                                               1545-0228
1.453A-1...................................................    1545-0152
                                                               1545-1134
1.453A-3...................................................    1545-0963
1.454-1....................................................    1545-0074

[[Page 1105]]

 
1.455-2....................................................    1545-0152
1.455-6....................................................    1545-0123
1.456-2....................................................    1545-0123
1.456-6....................................................    1545-0123
1.456-7....................................................    1545-0123
1.457-8....................................................    1545-1580
1.458-1....................................................    1545-0879
1.458-2....................................................    1545-0152
1.460-1....................................................    1545-1650
1.460-6....................................................    1545-1031
                                                               1545-1572
                                                               1545-1732
1.461-1....................................................    1545-0074
1.461-2....................................................    1545-0096
1.461-4....................................................    1545-0917
1.461-5....................................................    1545-0917
1.463-1T...................................................    1545-0916
1.465-1T...................................................    1545-0712
1.466-1T...................................................    1545-0152
1.466-4....................................................    1545-0152
1.468A-3...................................................    1545-1269
                                                               1545-1378
                                                               1545-1511
1.468A-3(h), 1.468A-7, and 1.468A-8(d).....................    1545-2091
1.468A-4...................................................    1545-0954
1.468A-7...................................................    1545-0954
                                                               1545-1511
1.468A-8...................................................    1545-1269
1.468B-1...................................................    1545-1631
1.468B-1(j)................................................    1545-1299
1.468B-2(k)................................................    1545-1299
1.468B-2(l)................................................    1545-1299
1.468B-3(b)................................................    1545-1299
1.468B-3(e)................................................    1545-1299
1.468B-5(b)................................................    1545-1299
1.468B-9...................................................    1545-1631
1.469-1....................................................    1545-1008
1.469-2T...................................................    1545-0712
                                                               1545-1091
1.469-4T...................................................    1545-0985
                                                               1545-1037
1.469-7....................................................    1545-1244
1.471-2....................................................    1545-0123
1.471-5....................................................    1545-0123
1.471-6....................................................    1545-0123
1.471-8....................................................    1545-0123
1.471-11...................................................    1545-0123
                                                               1545-0152
1.472-1....................................................    1545-0042
                                                               1545-0152
1.472-2....................................................    1545-0152
1.472-3....................................................    1545-0042
1.472-5....................................................    1545-0152
1.472-8....................................................    1545-0028
                                                               1545-0042
                                                               1545-1767
1.475(a)-4.................................................    1545-1945
1.481-4....................................................    1545-0152
1.481-5....................................................    1545-0152
1.482-1....................................................    1545-1364
1.482-4....................................................    1545-1364
1.482-7....................................................    1545-1364
                                                               1545-1794
1.482-9(b).................................................    1545-2149
1.501(a)-1.................................................    1545-0056
                                                               1545-0057
1.501(c)(3)-1..............................................    1545-0056
1.501(c)(9)-5..............................................    1545-0047
1.501(c)(17)-3.............................................    1545-0047
1.501(e)-1.................................................    1545-0814
1.501(r)-3.................................................    1545-0047
1.501(r)-4.................................................    1545-0047
1.501(r)-6.................................................    1545-0047
1.503(c)-1.................................................    1545-0047
                                                               1545-0052
1.505(c)-1T................................................    1545-0916
1.506-1....................................................    1545-2268
1.507-1....................................................    1545-0052
1.507-2....................................................    1545-0052
1.508-1....................................................    1545-0052
                                                               1545-0056
1.509(a)-3.................................................    1545-0047
1.509(a)-4.................................................    1545-2157
1.509(a)-5.................................................    1545-0047
1.509(c)-1.................................................    1545-0052
1.512(a)-1.................................................    1545-0687
1.512(a)-4.................................................    1545-0047
                                                               1545-0687
1.521-1....................................................    1545-0051
                                                               1545-0058
1.527-2....................................................    1545-0129
1.527-5....................................................    1545-0129
1.527-6....................................................    1545-0129
1.527-9....................................................    1545-0129
1.528-8....................................................    1545-0127
1.529A-2...................................................    1545-2293
1.529A-5...................................................    1545-2262
1.529A-6...................................................    1545-2262
1.529A-7...................................................    1545-2262
1.533-2....................................................    1545-0123
1.534-2....................................................    1545-0123
1.542-3....................................................    1545-0123
1.545-2....................................................    1545-0123
1.545-3....................................................    1545-0123
1.547-2....................................................    1545-0045
                                                               1545-0123
1.547-3....................................................    1545-0123
1.561-1....................................................    1545-0044
1.561-2....................................................    1545-0123
1.562-3....................................................    1545-0123
1.563-2....................................................    1545-0123
1.564-1....................................................    1545-0123
1.565-1....................................................    1545-0043
                                                               1545-0123
1.565-2....................................................    1545-0043
1.565-3....................................................    1545-0043
1.565-5....................................................    1545-0043
1.565-6....................................................    1545-0043
1.585-1....................................................    1545-0123
1.585-3....................................................    1545-0123
1.585-8....................................................    1545-1290
1.597-2....................................................    1545-1300
1.597-4....................................................    1545-1300
1.597-6....................................................    1545-1300
1.597-7....................................................    1545-1300
1.611-2....................................................    1545-0099
1.611-3....................................................    1545-0007
                                                               1545-0099
                                                               1545-1784
1.612-4....................................................    1545-0074
1.612-5....................................................    1545-0099
1.613-3....................................................    1545-0099
1.613-4....................................................    1545-0099
1.613-6....................................................    1545-0099
1.613-7....................................................    1545-0099
1.613A-3...................................................    1545-0919
1.613A-3(e)................................................    1545-1251
1.613A-3(l)................................................    1545-0919
1.613A-5...................................................    1545-0099
1.613A-6...................................................    1545-0099
1.614-2....................................................    1545-0099
1.614-3....................................................    1545-0099
1.614-5....................................................    1545-0099
1.614-6....................................................    1545-0099

[[Page 1106]]

 
1.614-8....................................................    1545-0099
1.617-1....................................................    1545-0099
1.617-3....................................................    1545-0099
1.617-4....................................................    1545-0099
1.631-1....................................................    1545-0007
1.631-2....................................................    1545-0007
1.641(b)-2.................................................    1545-0092
1.642(c)-1.................................................    1545-0092
1.642(c)-2.................................................    1545-0092
1.642(c)-5.................................................    1545-0074
1.642(c)-6.................................................    1545-0020
                                                               1545-0074
                                                               1545-0092
1.642(g)-1.................................................    1545-0092
1.642(i)-1.................................................    1545-0092
1.645-1....................................................    1545-1578
1.663(b)-2.................................................    1545-0092
1.664-1....................................................    1545-0196
1.664-1(a)(7)..............................................    1545-1536
1.664-1(c).................................................    1545-2101
1.664-2....................................................    1545-0196
1.664-3....................................................    1545-0196
1.664-4....................................................    1545-0020
                                                               1545-0196
1.665(a)-0A through
1.665(g)-2A................................................    1545-0192
1.666(d)-1A................................................    1545-0092
1.671-4....................................................    1545-1442
1.671-5....................................................    1545-1540
1.701-1....................................................    1545-0099
1.702-1....................................................    1545-0074
1.703-1....................................................    1545-0099
1.704-2....................................................    1545-1090
1.706-1....................................................    1545-0074
                                                               1545-0099
                                                               1545-0134
1.706-1T...................................................    1545-0099
1.706-4(f).................................................    1545-0123
1.707-3(c)(2)..............................................    1545-1243
1.707-5(a)(7)(ii)..........................................    1545-1243
1.707-6(c).................................................    1545-1243
1.707-8....................................................    1545-1243
1.708-1....................................................    1545-0099
1.732-1....................................................    1545-0099
                                                               1545-1588
1.736-1....................................................    1545-0074
1.743-1....................................................    1545-0074
                                                               1545-1588
1.751-1....................................................    1545-0074
                                                               1545-0099
                                                               1545-0941
1.752-2....................................................    1545-1905
1.752-5....................................................    1545-1090
1.752-7....................................................    1545-1843
1.754-1....................................................    1545-0099
1.755-1....................................................    1545-0099
1.761-2....................................................    1545-1338
1.801-1....................................................    1545-0123
                                                               1545-0128
1.801-3....................................................    1545-0123
1.801-5....................................................    1545-0128
1.801-8....................................................    1545-0128
1.804-4....................................................    1545-0128
1.811-2....................................................    1545-0128
1.812-2....................................................    1545-0128
1.815-6....................................................    1545-0128
1.818-4....................................................    1545-0128
1.818-5....................................................    1545-0128
1.818-8....................................................    1545-0128
1.819-2....................................................    1545-0128
1.822-5....................................................    1545-1027
1.822-6....................................................    1545-1027
1.822-8....................................................    1545-1027
1.822-9....................................................    1545-1027
1.826-1....................................................    1545-1027
1.826-2....................................................    1545-1027
1.826-3....................................................    1545-1027
1.826-4....................................................    1545-1027
1.826-6....................................................    1545-1027
1.831-3....................................................    1545-0123
1.832-4....................................................    1545-1227
1.832-5....................................................    1545-0123
1.848-2(g)(8)..............................................    1545-1287
1.848-2(h)(3)..............................................    1545-1287
1.848-2(i)(4)..............................................    1545-1287
1.851-2....................................................    1545-1010
1.851-4....................................................    1545-0123
1.852-1....................................................    1545-0123
1.852-4....................................................    1545-0123
                                                               1545-0145
1.852-6....................................................    1545-0123
                                                               1545-0144
1.852-7....................................................    1545-0074
1.852-9....................................................    1545-0074
                                                               1545-0123
                                                               1545-0144
                                                               1545-0145
                                                               1545-1783
1.852-11...................................................    1545-1094
1.853-3....................................................    1545-2035
1.853-4....................................................    1545-2035
1.854-2....................................................    1545-0123
1.855-1....................................................    1545-0123
1.856-2....................................................    1545-0123
                                                               1545-1004
1.856-6....................................................    1545-0123
1.856-7....................................................    1545-0123
1.856-8....................................................    1545-0123
1.857-8....................................................    1545-0123
1.857-9....................................................    1545-0074
1.858-1....................................................    1545-0123
1.860-2....................................................    1545-0045
1.860-4....................................................    1545-0045
                                                               1545-1054
                                                               1545-1057
1.860E-1...................................................    1545-1675
1.860E-2(a)(5).............................................    1545-1276
1.860E-2(a)(7).............................................    1545-1276
1.860E-2(b)(2).............................................    1545-1276
1.860G-2...................................................    1545-2110
1.861-2....................................................    1545-0089
1.861-3....................................................    1545-0089
1.861-4....................................................    1545-1900
1.861-8....................................................    1545-0126
1.861-8(e)(6) and (g)......................................    1545-1224
1.861-9T...................................................    1545-0121
                                                               1545-1072
1.861-18...................................................    1545-1594
1.863-1....................................................    1545-1476
1.863-3....................................................    1545-1476
                                                               1545-1556
1.863-3A...................................................    1545-0126
1.863-4....................................................    1545-0126
1.863-7....................................................    1545-0132
1.863-8....................................................    1545-1718
1.863-9....................................................    1545-1718
1.864-4....................................................    1545-0126
1.871-1....................................................    1545-0096
1.871-6....................................................    1545-0795
1.871-7....................................................    1545-0089
1.871-10...................................................    1545-0089
                                                               1545-0165
1.874-1....................................................    1545-0089
1.881-4....................................................    1545-1440

[[Page 1107]]

 
1.882-4....................................................    1545-0126
1.883-0....................................................    1545-1677
1.883-1....................................................    1545-1677
1.883-2....................................................    1545-1677
1.883-3....................................................    1545-1677
1.883-4....................................................    1545-1677
1.883-5....................................................    1545-1677
1.884-0....................................................    1545-1070
1.884-1....................................................    1545-1070
1.884-2....................................................    1545-1070
1.884-2T...................................................    1545-0126
                                                               1545-1070
1.884-4....................................................    1545-1070
1.884-5....................................................    1545-1070
1.892-1T...................................................    1545-1053
1.892-2T...................................................    1545-1053
1.892-3T...................................................    1545-1053
1.892-4T...................................................    1545-1053
1.892-5T...................................................    1545-1053
1.892-6T...................................................    1545-1053
1.892-7T...................................................    1545-1053
1.897-2....................................................    1545-0123
                                                               1545-0902
1.897-3....................................................    1545-0123
1.897-5T...................................................    1545-0902
1.897-6T...................................................    1545-0902
1.901-2....................................................    1545-0746
1.901-2A...................................................    1545-0746
1.901-3....................................................    1545-0122
1.902-1....................................................    1545-0122
                                                               1545-1458
1.904-1....................................................    1545-0121
                                                               1545-0122
1.904-2....................................................    1545-0121
                                                               1545-0122
1.904-3....................................................    1545-0121
1.904-4....................................................    1545-0121
1.904-5....................................................    1545-0121
1.904-7....................................................    1545-2104
1.904-7T...................................................    1545-2104
1.904(f)-1.................................................    1545-0121
                                                               1545-0122
1.904(f)-2.................................................    1545-0121
1.904(f)-3.................................................    1545-0121
1.904(f)-4.................................................    1545-0121
1.904(f)-5.................................................    1545-0121
1.904(f)-6.................................................    1545-0121
1.904(f)-7.................................................    1545-1127
1.905-2....................................................    1545-0122
1.905-3T...................................................    1545-1056
1.905-4T...................................................    1545-1056
1.905-5T...................................................    1545-1056
1.911-1....................................................    1545-0067
                                                               1545-0070
1.911-2....................................................    1545-0067
                                                               1545-0070
1.911-3....................................................    1545-0067
                                                               1545-0070
1.911-4....................................................    1545-0067
                                                               1545-0070
1.911-5....................................................    1545-0067
                                                               1545-0070
1.911-6....................................................    1545-0067
                                                               1545-0070
1.911-7....................................................    1545-0067
                                                               1545-0070
1.913-13...................................................    1545-0067
1.921-1T...................................................    1545-0190
                                                               1545-0884
                                                               1545-0935
                                                               1545-0939
1.921-2....................................................    1545-0884
1.927(a)-1T................................................    1545-0935
1.927(d)-2T................................................    1545-0935
1.931-1....................................................    1545-0074
                                                               1545-0123
1.934-1....................................................    1545-0782
1.935-1....................................................    1545-0074
                                                               1545-0087
                                                               1545-0803
1.936-1....................................................    1545-0215
                                                               1545-0217
1.936-4....................................................    1545-0215
1.936-5....................................................    1545-0704
1.936-6....................................................    1545-0215
1.936-7....................................................    1545-0215
1.936-10(c)................................................    1545-1138
1.937-1....................................................    1545-1930
1.952-2....................................................    1545-0126
1.953-2....................................................    1545-0126
1.954-1....................................................    1545-1068
1.954-2....................................................    1545-1068
1.955-2....................................................    1545-0123
1.955-3....................................................    1545-0123
1.955A-2...................................................    1545-0755
1.955A-3...................................................    1545-0755
1.956-1....................................................    1545-0704
1.956-2....................................................    1545-0704
1.959-1....................................................    1545-0704
1.959-2....................................................    1545-0704
1.960-1....................................................    1545-0122
1.962-2....................................................    1545-0704
1.962-3....................................................    1545-0704
1.964-1....................................................    1545-0126
                                                               1545-0704
                                                               1545-1072
                                                               1545-2104
1.964-3....................................................    1545-0126
1.970-2....................................................    1545-0126
1.985-2....................................................    1545-1051
                                                               1545-1131
1.985-3....................................................    1545-1051
1.987-1....................................................    1545-2265
1.987-3....................................................    1545-2265
1.987-9....................................................    1545-2265
1.987-10...................................................    1545-2265
1.988-0....................................................    1545-1131
1.988-1....................................................    1545-1131
1.988-2....................................................    1545-1131
1.988-3....................................................    1545-1131
1.988-4....................................................    1545-1131
1.988-5....................................................    1545-1131
1.988-6....................................................    1545-1831
1.992-1....................................................    1545-0190
                                                               1545-0938
1.992-2....................................................    1545-0190
                                                               1545-0884
                                                               1545-0938
1.992-3....................................................    1545-0190
                                                               1545-0938
1.992-4....................................................    1545-0190
                                                               1545-0938
1.993-3....................................................    1545-0938
1.993-4....................................................    1545-0938
1.994-1....................................................    1545-0938
1.995-5....................................................    1545-0938
1.1001-1...................................................    1545-1902
1.1012-1...................................................    1545-0074
                                                               1545-1139
1.1014-4...................................................    1545-0184
1.1015-1...................................................    1545-0020
1.1017-1...................................................    1545-1539
1.1031(d)-1T...............................................    1545-1021
1.1033(a)-2................................................    1545-0184

[[Page 1108]]

 
1.1033(g)-1................................................    1545-0184
1.1039-1...................................................    1545-0184
1.1041-1T..................................................    1545-0074
1.1041-2...................................................    1545-1751
1.1042-1T..................................................    1545-0916
1.1044(a)-1................................................    1545-1421
1.1045-1...................................................    1545-1893
1.1060-1...................................................    1545-1658
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1.1071-1...................................................    1545-0184
1.1071-4...................................................    1545-0184
1.1081-4...................................................    1545-0028
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1.1081-11..................................................    1545-2019
1.1082-1...................................................    1545-0046
1.1082-2...................................................    1545-0046
1.1082-3...................................................    1545-0046
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1.1082-5...................................................    1545-0046
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1.1083-1...................................................    1545-0123
1.1092(b)-1T...............................................    1545-0644
1.1092(b)-2T...............................................    1545-0644
1.1092(b)-3T...............................................    1545-0644
1.1092(b)-4T...............................................    1545-0644
1.1092(b)-5T...............................................    1545-0644
1.1211-1...................................................    1545-0074
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1.1221-2...................................................    1545-1480
1.1231-1...................................................    1545-0177
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1.1231-2...................................................    1545-0177
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1.1231-2...................................................    1545-0074
1.1232-3...................................................    1545-0074
1.1237-1...................................................    1545-0184
1.1239-1...................................................    1545-0091
1.1242-1...................................................    1545-0184
1.1243-1...................................................    1545-0123
1.1244(e)-1................................................    1545-0123
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1.1245-1...................................................    1545-0184
1.1245-2...................................................    1545-0184
1.1245-3...................................................    1545-0184
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1.1245-5...................................................    1545-0184
1.1245-6...................................................    1545-0184
1.1248-7...................................................    1545-0074
1.1248(f)-2................................................    1545-2183
1.1248(f)-3T...............................................    1545-2183
1.1250-1...................................................    1545-0184
1.1250-2...................................................    1545-0184
1.1250-3...................................................    1545-0184
1.1250-4...................................................    1545-0184
1.1250-5...................................................    1545-0184
1.1251-1...................................................    1545-0184
1.1251-2...................................................    1545-0074
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1.1251-3...................................................    1545-0184
1.1251-4...................................................    1545-0184
1.1252-1...................................................    1545-0184
1.1252-2...................................................    1545-0184
1.1254-1(c)(3).............................................    1545-1352
1.1254-4...................................................    1545-1493
1.1254-5(d)(2).............................................    1545-1352
1.1258-1...................................................    1545-1452
1.1272-3...................................................    1545-1353
1.1273-2(f)(9).............................................    1545-1353
1.1273-2(h)(2).............................................    1545-1353
1.1274-3(d)................................................    1545-1353
1.1274-5(b)................................................    1545-1353
1.1274A-1(c)...............................................    1545-1353
1.1275-2...................................................    1545-1450
1.1275-3...................................................    1545-0887
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1.1275-4...................................................    1545-1450
1.1275-6...................................................    1545-1450
1.1287-1...................................................    1545-0786
1.1291-9...................................................    1545-1507
1.1291-10..................................................    1545-1304
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1.1294-1T..................................................    1545-1002
                                                               1545-1028
1.1295-1...................................................    1545-1555
1.1295-3...................................................    1545-1555
1.1298-3...................................................    1545-1507
1.1301-1...................................................    1545-1662
1.1311(a)-1................................................    1545-0074
1.1361-1...................................................    1545-0731
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1.1361-3...................................................    1545-1590
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1.1362-6...................................................    1545-1308
1.1362-7...................................................    1545-1308
1.1362-8...................................................    1545-1590
1.1363-2...................................................    1545-1906
1.1366-1...................................................    1545-1613
1.1367-1(f)................................................    1545-1139
1.1368-1(f)(2).............................................    1545-1139
1.1368-1(f)(3).............................................    1545-1139
1.1368-1(f)(4).............................................    1545-1139
1.1368-1(g)(2).............................................    1545-1139
1.1374-1A..................................................    1545-0130
1.1377-1...................................................    1545-1462
1.1378-1...................................................    1545-1748
1.1383-1...................................................    1545-0074
1.1385-1...................................................    1545-0074
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1.1397E-1..................................................    1545-1908
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1.1398-2...................................................    1545-1375
1.1402(a)-2................................................    1545-0074
1.1402(a)-5................................................    1545-0074
1.1402(a)-11...............................................    1545-0074
1.1402(a)-15...............................................    1545-0074
1.1402(a)-16...............................................    1545-0074
1.1402(b)-1................................................    1545-0171
1.1402(c)-2................................................    1545-0074
1.1402(e)(1)-1.............................................    1545-0074
1.1402(e)(2)-1.............................................    1545-0074
1.1402(e)-1A...............................................    1545-0168
1.1402(e)-2A...............................................    1545-0168
1.1402(e)-3A...............................................    1545-0168
1.1402(e)-4A...............................................    1545-0168
1.1402(e)-5A...............................................    1545-0168
1.1402(f)-1................................................    1545-0074
1.1402(h)-1................................................    1545-0064
1.1411-10(g)...............................................    1545-2227
1.1441-1...................................................    1545-1484
1.1441-2...................................................    1545-0795
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1.1502-9A..................................................    1545-0121
1.1502-13..................................................    1545-0123
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1.1502-16..................................................    1545-0123
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1.1502-20..................................................    1545-1774
1.1502-21..................................................    1545-1237
1.1502.21T.................................................    1545-0123
1.1502-31..................................................    1545-1344
1.1502-32..................................................    1545-1344
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1.1502-33..................................................    1545-1344
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1.1502-36..................................................    1545-2096
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1.1502-75..................................................    1545-0025
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1.1502-76..................................................    1545-1344
1.1502-76T.................................................    1545-2019
1.1502-77..................................................    1545-1699
1.1502-77A.................................................    1545-0123
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1.1502-77B.................................................    1545-1699
1.1502-78..................................................    1545-0582
1.1502-95..................................................    1545-1218
1.1502-95A.................................................    1545-1218
1.1502-96..................................................    1545-1218
1.1503-2...................................................    1545-1583
1.1503-2A..................................................    1545-1083
1.1503(d)-1................................................    1545-1946
1.1503(d)-3................................................    1545-1946
1.1503(d)-4................................................    1545-1946
1.1503(d)-5................................................    1545-1946
1.1503(d)-6................................................    1545-1946
1.1552-1...................................................    1545-0123
1.1561-3...................................................    1545-0123
1.1563-1...................................................    1545-0123
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1.1563-3...................................................    1545-0123
1.5000A-3..................................................    1545-0074
1.5000A-4..................................................    1545-0074
1.5000C-2..................................................    1545-0096
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1.5000C-3..................................................    1545-0096
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1.6001-1...................................................    1545-0058
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1.6011-2...................................................    1545-0055
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1.6011-3...................................................    1545-0238
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1.6011-4...................................................    1545-1685
1.6012-1...................................................    1545-0067
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1.6015-5...................................................    1545-1719
1.6015(a)-1................................................    1545-0087
1.6015(b)-1................................................    1545-0087
1.6015(d)-1................................................    1545-0087
1.6015(e)-1................................................    1545-0087
1.6015(f)-1................................................    1545-0087
1.6015(g)-1................................................    1545-0087
1.6015(h)-1................................................    1545-0087
1.6015(i)-1................................................    1545-0087
1.6017-1...................................................    1545-0074
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1.6031(a)-1................................................    1545-1583
1.6031(b)-1T...............................................    1545-0099
1.6031(c)-1T...............................................    1545-0099
1.6032-1...................................................    1545-0099
1.6033-2...................................................    1545-0047
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1.6038A-2..................................................    1545-1191
1.6038A-3..................................................    1545-1191
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1.6038B-1..................................................    1545-1617
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1.6038B-1T.................................................    1545-0026
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1.6038B-2..................................................    1545-1617
1.6039-2...................................................    1545-0820
1.6041-1...................................................    1545-0008
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1.6041-2...................................................    1545-0008
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1.6044-5...................................................    1545-0118
1.6045-1...................................................    1545-0715
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1.6045-1(c)(3)(xi)(C)......................................    1545-2186
1.6045-1(n)(5).............................................    1545-2186
1.6045A-1..................................................    1545-2186
1.6045-2...................................................    1545-0115
1.6045-4...................................................    1545-1085
1.6046-1...................................................    1545-0704
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1.6046-2...................................................    1545-0704
1.6046-3...................................................    1545-0704
1.6046A....................................................    1545-1646
1.6047-1...................................................    1545-0119
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1.6047-2...................................................    1545-2234
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1.6050A-1..................................................    1545-0115
1.6050B-1..................................................    1545-0120
1.6050D-1..................................................    1545-0120
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1.6050E-1..................................................    1545-0120
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1.6050H-2..................................................    1545-0901
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1.6655(e)-1................................................    1545-1421
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1.6662-4(e) and (f)........................................    1545-0889
1.6662-6...................................................    1545-1426
1.6694-1...................................................    1545-0074
1.6694-2...................................................    1545-0074
1.6694-2(c)................................................    1545-1231
1.6694-2(c)(3).............................................    1545-1231
1.6694-3(e)................................................    1545-1231
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1.7476-1...................................................    1545-0197
1.7476-2...................................................    1545-0197
1.7519-2T..................................................    1545-1036
1.7520-1...................................................    1545-1343
1.7520-2...................................................    1545-1343
1.7520-3...................................................    1545-1343
1.7520-4...................................................    1545-1343
1.7701(l)-3................................................    1545-1642
1.7872-15..................................................    1545-1792
1.9100-1...................................................    1545-0074
1.9101-1...................................................    1545-0008
2.1-4......................................................    1545-0123
2.1-5......................................................    1545-0123
2.1-6......................................................    1545-0123
2.1-10.....................................................    1545-0123
2.1-11.....................................................    1545-0123
2.1-12.....................................................    1545-0123
2.1-13.....................................................    1545-0123
2.1-20.....................................................    1545-0123
2.1-22.....................................................    1545-0123
2.1-26.....................................................    1545-0123
3.2........................................................    1545-0123
4.954-1....................................................    1545-1068
4.954-2....................................................    1545-1068
5.6411-1...................................................    1545-0042
                                                               1545-0074
                                                               1545-0098
                                                               1545-0129
                                                               1545-0172
                                                               1545-0582
                                                               1545-0619

[[Page 1112]]

 
5c.44F-1...................................................    1545-0619
5c.128-1...................................................    1545-0123
5c.305-1...................................................    1545-0110
5c.442-1...................................................    1545-0152
5f.103-1...................................................    1545-0720
5f.6045-1..................................................    1545-0715
6a.103A-2..................................................    1545-0123
                                                               1545-0720
6a.103A-3..................................................    1545-0720
7.465-1....................................................    1545-0712
7.465-2....................................................    1545-0712
7.465-3....................................................    1545-0712
7.465-4....................................................    1545-0712
7.465-5....................................................    1545-0712
7.936-1....................................................    1545-0217
7.999-1....................................................    1545-0216
7.6039A-1..................................................    1545-0015
7.6041-1...................................................    1545-0115
11.410-1...................................................    1545-0710
11.412(c)-7................................................    1545-0710
11.412(c)-11...............................................    1545-0710
12.7.......................................................    1545-0190
12.8.......................................................    1545-0191
12.9.......................................................    1545-0195
14a.422A-1.................................................    1545-0123
15A.453-1..................................................    1545-0228
16A.126-2..................................................    1545-0074
16A.1255-1.................................................    1545-0184
16A.1255-2.................................................    1545-0184
18.1371-1..................................................    1545-0130
18.1378-1..................................................    1545-0130
18.1379-1..................................................    1545-0130
18.1379-2..................................................    1545-0130
20.2010-2..................................................    1545-0015
20.2011-1..................................................    1545-0015
20.2014-5..................................................    1545-0015
                                                               1545-0260
20.2014-6..................................................    1545-0015
20.2016-1..................................................    1545-0015
20.2031-2..................................................    1545-0015
20.2031-3..................................................    1545-0015
20.2031-4..................................................    1545-0015
20.2031-6..................................................    1545-0015
20.2031-7..................................................    1545-0020
20.2031-10.................................................    1545-0015
20.2032-1..................................................    1545-0015
20.2032A-3.................................................    1545-0015
20.2032A-4.................................................    1545-0015
20.2032A-8.................................................    1545-0015
20.2039-4..................................................    1545-0015
20.2051-1..................................................    1545-0015
20.2053-3..................................................    1545-0015
20.2053-9..................................................    1545-0015
20.2053-10.................................................    1545-0015
20.2055-1..................................................    1545-0015
20.2055-2..................................................    1545-0015
                                                               1545-0092
20.2055-3..................................................    1545-0015
20.2056(b)-4...............................................    1545-0015
20.2056(b)-7...............................................    1545-0015
                                                               1545-1612
20.2056A-2.................................................    1545-1443
20.2056A-3.................................................    1545-1360
20.2056A-4.................................................    1545-1360
20.2056A-10................................................    1545-1360
20.2106-1..................................................    1545-0015
20.2106-2..................................................    1545-0015
20.2204-1..................................................    1545-0015
20.2204-2..................................................    1545-0015
20.6001-1..................................................    1545-0015
20.6011-1..................................................    1545-0015
20.6018-1..................................................    1545-0015
                                                               1545-0531
20.6018-2..................................................    1545-0015
20.6018-3..................................................    1545-0015
20.6018-4..................................................    1545-0015
                                                               1545-0022
20.6036-2..................................................    1545-0015
20.6060-1(a)(1)............................................    1545-1231
20.6061-1..................................................    1545-0015
20.6065-1..................................................    1545-0015
20.6075-1..................................................    1545-0015
20.6081-1..................................................    1545-0015
                                                               1545-0181
                                                               1545-1707
20.6091-1..................................................    1545-0015
20.6107-1..................................................    1545-1231
20.6161-1..................................................    1545-0015
                                                               1545-0181
20.6161-2..................................................    1545-0015
                                                               1545-0181
20.6163-1..................................................    1545-0015
20.6166-1..................................................    1545-0181
20.6166A-1.................................................    1545-0015
20.6166A-3.................................................    1545-0015
20.6324A-1.................................................    1545-0754
20.7520-1..................................................    1545-1343
20.7520-2..................................................    1545-1343
20.7520-3..................................................    1545-1343
20.7520-4..................................................    1545-1343
22.0.......................................................    1545-0015
25.2511-2..................................................    1545-0020
25.2512-2..................................................    1545-0020
25.2512-3..................................................    1545-0020
25.2512-5..................................................    1545-0020
25.2512-9..................................................    1545-0020
25.2513-1..................................................    1545-0020
25.2513-2..................................................    1545-0020
                                                               1545-0021
25.2513-3..................................................    1545-0020
25.2518-2..................................................    1545-0959
25.2522(a)-1...............................................    1545-0196
25.2522(c)-3...............................................    1545-0020
                                                               1545-0196
25.2523(a)-1...............................................    1545-0020
                                                               1545-0196
25.2523(f)-1...............................................    1545-0015
25.2701-2..................................................    1545-1241
25.2701-4..................................................    1545-1241
25.2701-5..................................................    1545-1273
25.2702-5..................................................    1545-1485
25.2702-6..................................................    1545-1273
25.6001-1..................................................    1545-0020
                                                               1545-0022
25.6011-1..................................................    1545-0020
25.6019-1..................................................    1545-0020
25.6019-2..................................................    1545-0020
25.6019-3..................................................    1545-0020
25.6019-4..................................................    1545-0020
25.6060-1(a)(1)............................................    1545-1231
25.6061-1..................................................    1545-0020
25.6065-1..................................................    1545-0020
25.6075-1..................................................    1545-0020
25.6081-1..................................................    1545-0020
25.6091-1..................................................    1545-0020
25.6091-2..................................................    1545-0020
25.6107-1..................................................    1545-1231
25.6151-1..................................................    1545-0020
25.6161-1..................................................    1545-0020
25.7520-1..................................................    1545-1343
25.7520-2..................................................    1545-1343
25.7520-3..................................................    1545-1343
25.7520-4..................................................    1545-1343
26.2601-1..................................................    1545-0985

[[Page 1113]]

 
26.2632-1..................................................    1545-0985
                                                               1545-1892
26.2642-1..................................................    1545-0985
26.2642-2..................................................    1545-0985
26.2642-3..................................................    1545-0985
26.2642-4..................................................    1545-0985
26.2642-6..................................................    1545-1902
26.2652-2..................................................    1545-0985
26.2654-1..................................................    1545-1902
26.2662-1..................................................    1545-0015
                                                               1545-0985
26.2662-2..................................................    1545-0985
26.6060-1(a)(1)............................................    1545-1231
26.6107-1..................................................    1545-1231
31.3102-3..................................................    1545-0029
                                                               1545-0059
                                                               1545-0065
31.3121(b)(19)-1...........................................    1545-0029
31.3121(d)-1...............................................    1545-0004
31.3121(i)-1...............................................    1545-0034
31.3121(r)-1...............................................    1545-0029
31.3121(s)-1...............................................    1545-0029
31.3121(v)(2)-1............................................    1545-1643
31.3302(a)-2...............................................    1545-0028
31.3302(a)-3...............................................    1545-0028
31.3302(b)-2...............................................    1545-0028
31.3302(e)-1...............................................    1545-0028
31.3306(c)(18)-1...........................................    1545-0029
31.3401(a)-1...............................................    1545-0029
31.3401(a)(6)..............................................    1545-1484
31.3401(a)(6)-1............................................    1545-0029
                                                               1545-0096
                                                               1545-0795
31.3401(a)(7)-1............................................    1545-0029
31.3401(a)(8)(A)-1 ........................................    1545-0029
                                                               1545-0666
31.3401(a)(8)(C)-1 ........................................    1545-0029
31.3401(a)(15)-1...........................................    1545-0182
31.3401(c)-1...............................................    1545-0004
31.3402(b)-1...............................................    1545-0010
31.3402(c)-1...............................................    1545-0010
31.3402(f)(1)-1............................................    1545-0010
31.3402(f)(2)-1............................................    1545-0010
                                                               1545-0410
31.3402(f)(3)-1............................................    1545-0010
31.3402(f)(4)-1............................................    1545-0010
31.3402(f)(4)-2............................................    1545-0010
31.3402(f)(5)-1............................................    1545-0010
                                                               1545-1435
31.3402(h)(1)-1............................................    1545-0029
31.3402(h)(3)-1............................................    1545-0010
                                                               1545-0029
31.3402(h)(4)-1............................................    1545-0010
31.3402(i)-(1).............................................    1545-0010
31.3402(i)-(2).............................................    1545-0010
31.3402(k)-1...............................................    1545-0065
31.3402(l)-(1).............................................    1545-0010
31.3402(m)-(1).............................................    1545-0010
31.3402(n)-(1).............................................    1545-0010
31.3402(o)-2...............................................    1545-0415
31.3402(o)-3...............................................    1545-0008
                                                               1545-0010
                                                               1545-0415
                                                               1545-0717
31.3402(p)-1...............................................    1545-0415
                                                               1545-0717
31.3402(q)-1...............................................    1545-0238
                                                               1545-0239
31.3404-1..................................................    1545-0029
31.3405(c)-1...............................................    1545-1341
31.3406(a)-1...............................................    1545-0112
31.3406(a)-2...............................................    1545-0112
31.3406(a)-3...............................................    1545-0112
31.3406(a)-4...............................................    1545-0112
31.3406(b)(2)-1............................................    1545-0112
31.3406(b)(2)-2............................................    1545-0112
31.3406(b)(2)-3............................................    1545-0112
31.3406(b)(2)-4............................................    1545-0112
31.3406(b)(2)-5............................................    1545-0112
31.3406(b)(3)-1............................................    1545-0112
31.3406(b)(3)-2............................................    1545-0112
31.3406(b)(3)-3............................................    1545-0112
31.3406(b)(3)-4............................................    1545-0112
31.3406(b)(4)-1............................................    1545-0112
31.3406(c)-1...............................................    1545-0112
31.3406(d)-1...............................................    1545-0112
31.3406(d)-2...............................................    1545-0112
31.3406(d)-3...............................................    1545-0112
31.3406(d)-4...............................................    1545-0112
31.3406(d)-5...............................................    1545-0112
31.3406(e)-1...............................................    1545-0112
31.3406(f)-1...............................................    1545-0112
31.3406(g)-1...............................................    1545-0096
                                                               1545-0112
                                                               1545-1819
31.3406(g)-2...............................................    1545-0112
31.3406(g)-3...............................................    1545-0112
31.3406(h)-1...............................................    1545-0112
31.3406(h)-2...............................................    1545-0112
31.3406(h)-3...............................................    1545-0112
31.3406(i)-1...............................................    1545-0112
31.3501(a)-1T..............................................    1545-0771
31.3503-1..................................................    1545-0024
31.3504-1..................................................    1545-0029
31.3511-1..................................................    1545-2266
31.6001-1..................................................    1545-0798
31.6001-2..................................................    1545-0034
                                                               1545-0798
31.6001-3..................................................    1545-0798
31.6001-4..................................................    1545-0028
31.6001-5..................................................    1545-0798
31.6001-6..................................................    1545-0029
                                                               1459-0798
31.6011(a)-1...............................................    1545-0029
                                                               1545-0034
                                                               1545-0035
                                                               1545-0059
                                                               1545-0074
                                                               1545-0256
                                                               1545-0718
                                                               1545-2097
31.6011(a)-2...............................................    1545-0001
                                                               1545-0002
31.6011(a)-3...............................................    1545-0028
31.6011(a)-3A..............................................    1545-0955
31.6011(a)-4...............................................    1545-0034
                                                               1545-0035
                                                               1545-0718
                                                               1545-1413
                                                               1545-2097
31.6011(a)-5...............................................    1545-0028
                                                               1545-0718
                                                               1545-2097
31.6011(a)-6...............................................    1545-0028
31.6011(a)-7...............................................    1545-0074
31.6011(a)-8...............................................    1545-0028
31.6011(a)-9...............................................    1545-0028
31.6011(a)-10..............................................    1545-0112
31.6011(b)-1...............................................    1545-0003
31.6011(b)-2...............................................    1545-0029
31.6051-1..................................................    1545-0008
                                                               1545-0182
                                                               1545-0458
                                                               1545-1729

[[Page 1114]]

 
31.6051-2..................................................    1545-0008
31.6051-3..................................................    1545-0008
31.6053-1..................................................    1545-0029
                                                               1545-0062
                                                               1545-0064
                                                               1545-0065
                                                               1545-1603
31.6053-2..................................................    1545-0008
31.6053-3..................................................    1545-0065
                                                               1545-0714
31.6053-4..................................................    1545-0065
                                                               1545-1603
31.6060-1(a)(1)............................................    1545-1231
31.6065(a)-1...............................................    1545-0029
31.6071(a)-1...............................................    1545-0001
                                                               1545-0028
                                                               1545-0029
31.6071(a)-1A..............................................    1545-0955
31.6081(a)-1...............................................    1545-0008
                                                               1545-0028
31.6091-1..................................................    1545-0028
                                                               1545-0029
31.6107-1..................................................    1545-1231
31.6157-1..................................................    1545-0955
31.6205-1..................................................    1545-0029
                                                               1545-2097
31.6301(c)-1AT.............................................    1545-0035
                                                               1545-0112
                                                               1545-0257
31.6302-1..................................................    1545-1413
31.6302-2..................................................    1545-1413
31.6302-3..................................................    1545-1413
31.6302-4..................................................    1545-1413
31.6302(c)-2...............................................    1545-0001
                                                               1545-0257
31.6302(c)-2A..............................................    1545-0955
31.6302(c)-3...............................................    1545-0257
31.6402(a)-2...............................................    1545-0256
                                                               1545-2097
31.6413(a)-1...............................................    1545-0029
                                                               1545-2097
31.6413(a)-2...............................................    1545-0029
                                                               1545-0256
                                                               1545-2097
31.6413(c)-1...............................................    1545-0029
                                                               1545-0171
31.6414-1..................................................    1545-0029
                                                               1545-2097
32.1.......................................................    1545-0029
                                                               1545-0415
32.2.......................................................    1545-0029
35a.3406-2.................................................    1545-0112
35a.9999-5.................................................    1545-0029
36.3121(l)(1)-1............................................    1545-0137
36.3121(l)(1)-2............................................    1545-0137
36.3121(l)(3)-1............................................    1545-0123
36.3121(1)(7)-1............................................    1545-0123
36.3121(1)(10)-1...........................................    1545-0029
36.3121(1)(10)-3...........................................    1545-0029
36.3121(1)(10)-4...........................................    1545-0257
40.6060-1(a)(1)............................................    1545-1231
40.6107-1..................................................    1545-1231
40.6302(c)-3(b)(2)(ii).....................................    1545-1296
40.6302(c)-3(b)(2)(iii)....................................    1545-1296
40.6302(c)-3(e)............................................    1545-1296
40.6302(c)-3(f)(2)(ii).....................................    1545-1296
41.4481-1..................................................    1545-0143
41.4481-2..................................................    1545-0143
41.4483-3..................................................    1545-0143
41.6001-1..................................................    1545-0143
41.6001-2..................................................    1545-0143
41.6001-3..................................................    1545-0143
41.6060-1(a)(1)............................................    1545-1231
41.6071(a)-1...............................................    1545-0143
41.6081(a)-1...............................................    1545-0143
41.6091-1..................................................    1545-0143
41.6107-1..................................................    1545-1231
41.6109-1..................................................    1545-0143
41.6151(a)-1...............................................    1545-0143
41.6156-1..................................................    1545-0143
41.6161(a)(1)-1............................................    1545-0143
44.4401-1..................................................    1545-0235
44.4403-1..................................................    1545-0235
44.4412-1..................................................    1545-0236
44.4901-1..................................................    1545-0236
44.4905-1..................................................    1545-0236
44.4905-2..................................................    1545-0236
44.6001-1..................................................    1545-0235
44.6011(a)-1...............................................    1545-0235
                                                               1545-0236
44.6060-1(a)(1)............................................    1545-1231
44.6071-1..................................................    1545-0235
44.6091-1..................................................    1545-0235
44.6107-1..................................................    1545-1231
44.6151-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-2..................................................    1545-0235
46.4371-4..................................................    1545-0023
46.4374-1..................................................    1545-0023
46.4375-1..................................................    1545-2238
46.4376-1..................................................    1545-2238
46.4701-1..................................................    1545-0023
                                                               1545-0257
48.4041-4..................................................    1545-0023
48.4041-5..................................................    1545-0023
48.4041-6..................................................    1545-0023
48.4041-7..................................................    1545-0023
48.4041-9..................................................    1545-0023
48.4041-10.................................................    1545-0023
48.4041-11.................................................    1545-0023
48.4041-12.................................................    1545-0023
48.4041-13.................................................    1545-0023
48.4041-19.................................................    1545-0023
48.4041-20.................................................    1545-0023
48.4041-21.................................................    1545-1270
48.4042-2..................................................    1545-0023
48.4052-1..................................................    1545-1418
48.4061(a)-1...............................................    1545-0023
48.4061(a)-2...............................................    1545-0023
48.4061(b)-3...............................................    1545-0023
48.4064-1..................................................    1545-0014
                                                               1545-0242
48.4071-1..................................................    1545-0023
48.4073-1..................................................    1545-0023
48.4073-3..................................................    1545-0023
                                                               1545-1074
                                                               1545-1087
48.4081-2..................................................    1545-1270
                                                               1545-1418
48.4081-3..................................................    1545-1270
                                                               1545-1418
                                                               1545-1897
48.4081-4(b)(2)(ii)........................................    1545-1270
48.4081-4(b)(3)(i).........................................    1545-1270
48.4081-4(c)...............................................    1545-1270
48.4081-6(c)(1)(ii)........................................    1545-1270
48.4081-7..................................................    1545-1270
                                                               1545-1418
48.4082-1T.................................................    1545-1418
48.4082-2..................................................    1545-1418
48.4082-6..................................................    1545-1418
48.4082-7..................................................    1545-1418
48.4101-1..................................................    1545-1418
48.4101-1T.................................................    1545-1418

[[Page 1115]]

 
48.4101-2..................................................    1545-1418
48.4161(a)-1...............................................    1545-0723
48.4161(a)-2...............................................    1545-0723
48.4161(a)-3...............................................    1545-0723
48.4161(b)-1...............................................    1545-0723
48.4216(a)-2...............................................    1545-0023
48.4216(a)-3...............................................    1545-0023
48.4216(c)-1...............................................    1545-0023
48.4221-1..................................................    1545-0023
48.4221-2..................................................    1545-0023
48.4221-3..................................................    1545-0023
48.4221-4..................................................    1545-0023
48.4221-5..................................................    1545-0023
48.4221-6..................................................    1545-0023
48.4221-7..................................................    1545-0023
48.4222(a)-1...............................................    1545-0014
                                                               1545-0023
48.4223-1..................................................    1545-0023
                                                               1545-0257
                                                               1545-0723
48.6302(c)-1...............................................    1545-0023
                                                               1545-0257
48.6412-1..................................................    1545-0723
48.6416(a)-1...............................................    1545-0023
                                                               1545-0723
48.6416(a)-2...............................................    1545-0723
48.6416(a)-3...............................................    1545-0723
48.6416(b)(1)-1............................................    1545-0723
48.6416(b)(1)-2............................................    1545-0723
48.6416(b)(1)-3............................................    1545-0723
48.6416(b)(1)-4............................................    1545-0723
48.6416(b)(2)-1............................................    1545-0723
48.6416(b)(2)-2............................................    1545-0723
48.6416(b)(2)-3............................................    1545-0723
                                                               1545-1087
48.6416(b)(2)-4............................................    1545-0723
48.6416(b)(3)-1............................................    1545-0723
48.6416(b)(3)-2............................................    1545-0723
48.6416(b)(3)-3............................................    1545-0723
48.6416(b)(4)-1............................................    1545-0723
48.6416(b)(5)-1............................................    1545-0723
48.6416(c)-1...............................................    1545-0723
48.6416(e)-1...............................................    1545-0023
                                                               1545-0723
48.6416(f)-1...............................................    1545-0023
                                                               1545-0723
48.6416(g)-1...............................................    1545-0723
48.6416(h)-1...............................................    1545-0723
48.6420(c)-2...............................................    1545-0023
48.6420(f)-1...............................................    1545-0023
48.6420-1..................................................    1545-0162
                                                               1545-0723
48.6420-2..................................................    1545-0162
                                                               1545-0723
48.6420-3..................................................    1545-0162
                                                               1545-0723
48.6420-4..................................................    1545-0162
                                                               1545-0723
48.6420-5..................................................    1545-0162
                                                               1545-0723
48.6420-6..................................................    1545-0162
                                                               1545-0723
48.6421-0..................................................    1545-0162
                                                               1545-0723
48.6421-1..................................................    1545-0162
                                                               1545-0723
48.6421-2..................................................    1545-0162
                                                               1545-0723
48.6421-3..................................................    1545-0162
                                                               1545-0723
48.6421-4..................................................    1545-0162
                                                               1545-0723
48.6421-5..................................................    1545-0162
                                                               1545-0723
48.6421-6..................................................    1545-0162
                                                               1545-0723
48.6421-7..................................................    1545-0162
                                                               1545-0723
48.6424-0..................................................    1545-0723
48.6424-1..................................................    1545-0723
48.6424-2..................................................    1545-0723
48.6424-3..................................................    1545-0723
48.6424-4..................................................    1545-0723
48.6424-5..................................................    1545-0723
48.6424-6..................................................    1545-0723
48.6427-0..................................................    1545-0723
48.6427-1..................................................    1545-0023
                                                               1545-0162
                                                               1545-0723
48.6427-2..................................................    1545-0162
                                                               1545-0723
48.6427-3..................................................    1545-0723
48.6427-4..................................................    1545-0723
48.6427-5..................................................    1545-0723
48.6427-8..................................................    1545-1418
48.6427-9..................................................    1545-1418
48.6427-10.................................................    1545-1418
48.6427-11.................................................    1545-1418
49.4251-1..................................................    1545-1075
49.4251-2..................................................    1545-1075
49.4251-4(d)(2)............................................    1545-1628
49.4253-3..................................................    1545-0023
49.4253-4..................................................    1545-0023
49.4264(b)-1...............................................    1545-0023
                                                               1545-0224
                                                               1545-0225
                                                               1545-0226
                                                               1545-0230
                                                               1545-0257
                                                               1545-0912
49.4271-1(d)...............................................    1545-0685
49.5000B-1.................................................    1545-2177
51.2(f)(2)(ii).............................................    1545-2209
51.7.......................................................    1545-2209
52.4682-1(b)(2)(iii).......................................    1545-1153
52.4682-2(b)...............................................    1545-1153
                                                               1545-1361
52.4682-2(d)...............................................    1545-1153
                                                               1545-1361
52.4682-3(c)(2)............................................    1545-1153
52.4682-3(g)...............................................    1545-1153
52.4682-4(f)...............................................    1545-0257
                                                               1545-1153
52.4682-5(d)...............................................    1545-1361
52.4682-5(f)...............................................    1545-1361
53.4940-1..................................................    1545-0052
                                                               1545-0196
53.4942(a)-1...............................................    1545-0052
53.4942(a)-2...............................................    1545-0052
53.4942(a)-3...............................................    1545-0052
53.4942(b)-3...............................................    1545-0052
53.4945-1..................................................    1545-0052
53.4945-4..................................................    1545-0052
53.4945-5..................................................    1545-0052
53.4945-6..................................................    1545-0052
53.4947-1..................................................    1545-0196
53.4947-2..................................................    1545-0196
53.4948-1..................................................    1545-0052
53.4958-6..................................................    1545-1623
53.4961-2..................................................    1545-0024
53.4963-1..................................................    1545-0024
53.6001-1..................................................    1545-0052
53.6011-1..................................................    1545-0049
                                                               1545-0052

[[Page 1116]]

 
                                                               1545-0092
                                                               1545-0196
53.6060-1(a)(1)............................................    1545-1231
53.6065-1..................................................    1545-0052
53.6071-1..................................................    1545-0049
53.6081-1..................................................    1545-0066
                                                               1545-0148
53.6107-1..................................................    1545-1231
53.6161-1..................................................    1545-0575
54.4975-7..................................................    1545-0575
54.4977-1T.................................................    1545-0771
54.4980B-6.................................................    1545-1581
54.4980B-7.................................................    1545-1581
54.4980B-8.................................................    1545-1581
54.4980F-1.................................................    1545-1780
54.6011-1..................................................    1545-0575
54.6011-1T.................................................    1545-0575
54.6060-1(a)(1)............................................    1545-1231
54.6107-1..................................................    1545-1231
54.9801-3..................................................    1545-1537
54.9801-4..................................................    1545-1537
54.9801-5..................................................    1545-1537
54.9801-6..................................................    1545-1537
54.9812-1T.................................................    1545-2165
54.9815-1251T..............................................    1545-2178
54.9815-2711T..............................................    1545-2179
54.9815-2712T..............................................    1545-2180
54.9815-2714T..............................................    1545-2172
54.9815-2715...............................................    1545-2229
54.9815-2719AT.............................................    1545-2181
54.9815-2719T..............................................    1545-2182
55.6001-1..................................................    1545-0123
55.6011-1..................................................    1545-0123
                                                               1545-0999
                                                               1545-1016
55.6060-1(a)(1)............................................    1545-1231
55.6061-1..................................................    1545-0999
55.6071-1..................................................    1545-0999
55.6107-1..................................................    1545-1231
56.4911-6..................................................    1545-0052
56.4911-7..................................................    1545-0052
56.4911-9..................................................    1545-0052
56.4911-10.................................................    1545-0052
56.6001-1..................................................    1545-1049
56.6011-1..................................................    1545-1049
56.6060-1(a)(1)............................................    1545-1231
56.6081-1..................................................    1545-1049
56.6107-1..................................................    1545-1231
56.6161-1..................................................    1545-0257
                                                               1545-1049
57.2(e)(2)(i)..............................................    1545-2249
145.4051-1.................................................    1545-0745
145.4052-1.................................................    1545-0120
                                                               1545-0745
                                                               1545-1076
145.4061-1.................................................    1545-0224
                                                               1545-0230
                                                               1545-0257
                                                               1545-0745
156.6001-1.................................................    1545-1049
156.6011-1.................................................    1545-1049
156.6060-1(a)(1)...........................................    1545-1231
156.6081-1.................................................    1545-1049
156.6107-1.................................................    1545-1231
156.6161-1.................................................    1545-1049
157.6001-1.................................................    1545-1824
157.6011-1.................................................    1545-1824
157.6060-1(a)(1)...........................................    1545-1231
157.6081-1.................................................    1545-1824
157.6107-1.................................................    1545-1231
157.6161-1.................................................    1545-1824
301.6011-2.................................................    1545-0225
                                                               1545-0350
                                                               1545-0387
                                                               1545-0441
                                                               1545-0957
301.6011(g)-1..............................................    1545-2079
301.6017-1.................................................    1545-0090
301.6034-1.................................................    1545-0092
301.6036-1.................................................    1545-0013
                                                               1545-0773
301.6047-1.................................................    1545-0367
                                                               1545-0957
301.6056-1.................................................    1545-2251
301.6056-2.................................................    1545-2251
301.6057-1.................................................    1545-0710
301.6057-2.................................................    1545-0710
301.6058-1.................................................    1545-0710
301.6059-1.................................................    1545-0710
301.6103(c)-1..............................................    1545-1816
301.6103(n)-1..............................................    1545-1841
301.6103(p)(2)(B)-1........................................    1545-1757
301.6104(a)-1..............................................    1545-0495
301.6104(a)-5..............................................    1545-0056
301.6104(a)-6..............................................    1545-0056
301.6104(b)-1..............................................    1545-0094
                                                               1545-0742
301.6104(d)-1..............................................    1545-1655
301.6104(d)-2..............................................    1545-1655
301.6104(d)-3..............................................    1545-1655
301.6109-1.................................................    1545-0003
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
                                                               1545-1461
                                                               1545-2242
301.6109-3.................................................    1545-1564
301.6110-3.................................................    1545-0074
301.6110-5.................................................    1545-0074
301.6111-1T................................................    1545-0865
                                                               1545-0881
301.6111-2.................................................    1545-0865
                                                               1545-1687
301.6112-1.................................................    1545-0865
                                                               1545-1686
301.6112-1T................................................    1545-0865
                                                               1545-1686
301.6114-1.................................................    1545-1126
                                                               1545-1484
301.6222(a)-2..............................................    1545-0790
301.6222(b)-1..............................................    1545-0790
301.6222(b)-2..............................................    1545-0790
301.6222(b)-3..............................................    1545-0790
301.6223(b)-1..............................................    1545-0790
301.6223(c)-1..............................................    1545-0790
301.6223(e)-2..............................................    1545-0790
301.6223(g)-1..............................................    1545-0790
301.6223(h)-1..............................................    1545-0790
301.6224(b)-1..............................................    1545-0790
301.6224(c)-1..............................................    1545-0790
301.6224(c)-3..............................................    1545-0790
301.6227(c)-1..............................................    1545-0790
301.6227(d)-1..............................................    1545-0790
301.6229(b)-2..............................................    1545-0790
301.6230(b)-1..............................................    1545-0790
301.6230(e)-1..............................................    1545-0790
301.6231(a)(1)-1...........................................    1545-0790
301.6231(a)(7)-1...........................................    1545-0790
301.6231(c)-1..............................................    1545-0790
301.6231(c)-2..............................................    1545-0790
301.6316-4.................................................    1545-0074
301.6316-5.................................................    1545-0074
301.6316-6.................................................    1545-0074

[[Page 1117]]

 
301.6316-7.................................................    1545-0029
301.6324A-1................................................    1545-0015
301.6361-1.................................................    1545-0024
                                                               1545-0074
301.6361-2.................................................    1545-0024
301.6361-3.................................................    1545-0074
301.6402-2.................................................    1545-0024
                                                               1545-0073
                                                               1545-0091
301.6402-3.................................................    1545-0055
                                                               1545-0073
                                                               1545-0091
                                                               1545-0132
                                                               1545-1484
301.6402-5.................................................    1545-0928
301.6404-1.................................................    1545-0024
301.6404-2T................................................    1545-0024
301.6404-3.................................................    1545-0024
301.6405-1.................................................    1545-0024
301.6501(c)-1..............................................    1545-1241
                                                               1545-1637
301.6501(d)-1..............................................    1545-0074
                                                               1545-0430
301.6511(d)-1..............................................    1545-0024
                                                               1545-0582
301.6511(d)-2..............................................    1545-0024
                                                               1545-0582
301.6511(d)-3..............................................    1545-0024
                                                               1545-0582
301.6652-2.................................................    1545-0092
301.6685-1.................................................    1545-0092
301.6689-1T................................................    1545-1056
301.6707-1T................................................    1545-0865
                                                               1545-0881
301.6708-1T................................................    1545-0865
301.6712-1.................................................    1545-1126
301.6903-1.................................................    1545-0013
                                                               1545-1783
301.6905-1.................................................    1545-0074
301.7001-1.................................................    1545-0123
301.7101-1.................................................    1545-1029
301.7207-1.................................................    1545-0092
301.7216-2.................................................    1545-0074
301.7216-2(o)..............................................    1545-1209
301.7425-3.................................................    1545-0854
301.7430-2(c)..............................................    1545-1356
301.7502-1.................................................    1545-1899
301.7507-8.................................................    1545-0123
301.7507-9.................................................    1545-0123
301.7513-1.................................................    1545-0429
301.7517-1.................................................    1545-0015
301.7605-1.................................................    1545-0795
301.7623-1.................................................    1545-0409
                                                               1545-1534
301.7654-1.................................................    1545-0803
301.7701-3.................................................    1545-1486
301.7701-4.................................................    1545-1465
301.7701-7.................................................    1545-1600
301.7701-16................................................    1545-0795
301.7701(b)-1..............................................    1545-0089
301.7701(b)-2..............................................    1545-0089
301.7701(b)-3..............................................    1545-0089
301.7701(b)-4..............................................    1545-0089
301.7701(b)-5..............................................    1545-0089
301.7701(b)-6..............................................    1545-0089
301.7701(b)-7..............................................    1545-0089
                                                               1545-1126
301.7701(b)-9..............................................    1545-0089
301.7705-1.................................................    1545-2266
301.7705-2.................................................    1545-2266
301.7805-1.................................................    1545-0805
301.9000-5.................................................    1545-1850
301.9001-1.................................................    1545-0220
301.9100-2.................................................    1545-1488
301.9100-3.................................................    1545-1488
301.9100-4T................................................    1545-0016
                                                               1545-0042
                                                               1545-0074
                                                               1545-0129
                                                               1545-0172
                                                               1545-0619
301.9100-6T................................................    1545-0872
301.9100-7T................................................    1545-0982
301.9100-8.................................................    1545-1112
301.9100-11T...............................................    1545-0123
301.9100-12T...............................................    1545-0026
                                                               1545-0074
                                                               1545-0172
                                                               1545-1027
301.9100-14T...............................................    1545-0046
301.9100-15T...............................................    1545-0046
301.9100-16T...............................................    1545-0152
302.1-7....................................................    1545-0024
305.7701-1.................................................    1545-0823
305.7871-1.................................................    1545-0823
420.0-1....................................................    1545-0710
Part 509...................................................    1545-0846
Part 513...................................................    1545-0834
Part 514...................................................    1545-0845
Part 521...................................................    1545-0848
601.104....................................................    1545-0233
601.105....................................................    1545-0091
601.201....................................................    1545-0019
                                                               1545-0819
601.204....................................................    1545-0152
601.401....................................................    1545-0257
601.504....................................................    1545-0150
601.601....................................................    1545-0800
601.602....................................................    1545-0295
                                                               1545-0387
                                                               1545-0957
601.702....................................................    1545-0429
------------------------------------------------------------------------


[T.D. 8011, 50 FR 10222, Mar. 14, 1985]

    Editorial Note: For Federal Register citations affecting Sec.  
602.101, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.govinfo.gov.

[[Page 1119]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2017 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2017

26 CFR
                                                                   82 FR
                                                                    Page
Chapter I
1.1001-1 (a) amended; (f)(1) revised; (i) added.....................6240
1.1014-1 (a) revised; (d) added.....................................6240
1.1014-4 (a)(1) and (2) amended; (d) added..........................6241
1.1014-5 (b) revised................................................6241
1.1223-1 (b) amended; (l) added.....................................6241
1.1245-2 (c)(2)(ii) revised; (d) added..............................6241
1.1245-3 (a)(3) revised; (d) added..................................6241
1.1245-4 (a)(1) amended; (i) added..................................6241
1.1250-4 (c)(5) and (h) added.......................................6241
1.1254-2 (a)(1) amended.............................................6241
1.1254-3 (b)(2)(ii) and (iii) revised; (b)(2)(iv) added.............6242
1.1254-4 (e)(4) introductory text revised...........................6242
1.1254-5 (c)(2)(iv) introductory text revised.......................6242
1.1254-6 Revised....................................................6242
1.1296-1 (d)(4) and (j) revised.....................................6242
1.1312-7 (b) revised; (d) added.....................................6242

                                  2018

                       (No regulations published)

                                  2019

26 CFR
                                                                   84 FR
                                                                    Page
Chapter I
1 Authority citation amended............................................
1.1034-1 Removed....................................................9237
1.1038-1 (a)(5) amended.............................................9237
1.1223-1 (g) amended................................................9237
1.1232-1 (a), (c)(1), and (d) amended...............................9237
1.1232-2 Removed....................................................9237
1.1232-4 Removed....................................................9237
1.1247-1 Removed....................................................9237
1.1247-2 Removed....................................................9237
1.1247-3 Removed....................................................9237
1.1247-4 Removed....................................................9237
1.1247-5 Removed....................................................9237
1.1275-1 (d) amended...............................................59302
1.1361-1 (m)(8) Examples 1 through 9, (i)(i), (ii), (iii), 
        (ii)(i), (ii), (vi)(i), (ii), and (iii) redesignated as 
        (m)(8)(i) through (ix), (i)(A), (B), (C), (ii)(A), (B), 
        (vi)(A), (B), and (C); (m)(1)(ii)(D) and (2)(ii)(E)(2) 
        revised; (m)(4)(i), (5)(iii), new (8)(ii)(A), new (B), new 
        (vi)(B), new (C), and (9) amended..........................28216

[[Page 1120]]

                                  2020

26 CFR
                                                                   85 FR
                                                                    Page
Chapter I
1 Authority citation amended........................................1953
    Authority citation correctly amended...........................26848
1.1031-0 Amended...................................................77378
1.1031(a)-1 (a)(3) added; (e) revised..............................77378
1.1031(a)-3 Added..................................................77378
1.1031(k)-1 (d)(2), (g)(7)(i), and (ii) amended; (g)(8) Examples 1 
        through 5 redesignated as (g)(8)(i) through (v); new 
        (g)(8)(i)(i) new (i)(ii), new (ii)(i) through (ii)(iii), 
        new (iii)(i) through (iii)(v), new (iv)(i) through 
        (iv)(iii), and new (v)(i) through new (v)(iii) further 
        redesignated as (g)(8)(i)(A), (B), (ii)(A) through (C), 
        (iii)(A) through (E), (iv)(A) through (C), and (v)(A) 
        through (C); new (g)(8)(i)(A)(A), new (A)(B), new (A) 
        undesignated text, new (ii)(A) through (C), and new (ii) 
        undesignated text further redesignated as (g)(8)(i)(A)(1) 
        through (3) and (ii)(A)(1) through (4); new 
        (g)(8)(ii)(A)(1)(1) and (2) further redesignated as 
        (ii)(A)(1)(i) and (ii); (g)(7)(iii), (8)(vi) and (9) added
                                                                   77383
1.1362-2 (a)(2)(iii) added.........................................66478
1.1362-3 (c)(3) redesignated as (c)(3)(i); (c)(3)(i) heading, (ii) 
        added; (d) Examples 1 through 4 redesignated as (d)(1) 
        through (4)................................................56842
1.1368-1 (g)(2)(ii) amended........................................56842
1.1371-1 Added.....................................................66478
1.1371-2 Added.....................................................66478
1.1377-1 (b)(3)(ii) through (iv) redesignated as (b)(3)(iii) 
        through (v); new (b)(3)(ii) added..........................56843
1.1377-2 (b) amended...............................................66484
1.1377-3 Revised...................................................66484
1.1400Z2-0 Added....................................................1953
    Correctly amended..............................................19082
1.1400Z2(a)-1 Added.................................................1954
    (b)(3), (11)(ix)(A)(2), (32), and (c)(1)(iii)(A) correctly 
amended; (d)(2), (g)(2) introductory text, and (2)(i) revised......19083
1.1400Z2(b)-1 Added.................................................1964
    (c)(6)(ii)(B) correctly amended; (j)(2) introductory text and 
(2)(i) correctly revised...........................................19083
1.1400Z2(c)-1 Added.................................................1974
    Correction: (b)(2)(ii)(A) and (B)(1) correctly amended.........19083
1.1400Z2(d)-1 Added.................................................1977
    (d)(3)(ix) and (x) correctly redesignated as (d)(3)(viii) and 
(ix); (b)(2)(i)(C)(2)(ii), (c)(2)(i)(C)(2), (d)(3)(v)(D) correctly 
amended; (b)(4)(ii), (d)(3)(vi), (vii), (d)(6)(i), (iii), (e)(2) 
introductory text, and (2)(i) correctly revised; (d)(3)(v)(F), (G) 
correctly removed..................................................19083
1.1400Z2(d)-2 Added.................................................1986
    (d)(4)(i), (ii), (e)(2) introductory text, and (2)(i) 
correctly revised..................................................19085
1.1400Z2(e)-1 Added.................................................1991
1.1400Z2(f)-1 Added.................................................1991
    (b)(2) and (c)(3)(v)(B) correctly amended; (c)(3)(iii), (d)(2) 
introductory text, and (2)(i) correctly revised....................19085

                                  2021

26 CFR
                                                                   86 FR
                                                                    Page
Chapter I
1 Authority citation amended............................4555, 5480, 5568
1.1061-0 Added......................................................5480
1.1061-1 Added......................................................5480
1.1061-2 Added......................................................5480
1.1061-3 Added......................................................5480
1.1061-4 Added......................................................5480
1.1061-5 Added......................................................5480
1.1061-6 Added......................................................5480
1.1223-3 (b)(5) and (f) Examples 1 through 8 redesignated as 
        (b)(6) and (f)(1) through (8); new (b)(5), (f)(9), and 
        (10) added; (g) heading revised; (g) amended................5493
1.1256(e)-2 Added...................................................5540
1.1271-0 Amended; eff. 12-30-21......................................862
    Regulation at 86 FR 862 eff. date corrected to read ``eff. 12-
31-20''.............................................................1256
    Regulation at 86 FR 862 eff. date corrected to read ``eff. 12-
30-20''.............................................................2974
1.1275-2 (l) added; eff. 12-30-21....................................862

[[Page 1121]]

    Regulation at 86 FR 862 eff. date corrected to read ``eff. 12-
31-20''.............................................................1256
    Regulation at 86 FR 862 eff. date corrected to read ``eff. 12-
30-20''.............................................................2974
1.1291-0 Amended....................................................4555
1.1291-1 (b)(8)(iv) redesignated as (b)(8)(v); new (b)(8)(v) 
        Example 1 redesignated as (b)(8)(v)(A); new (b)(8)(v)(A) 
        and (j)(3) revised; new (b)(8)(iv), (v)(B), (C), (D), and 
        (j)(4) added................................................4555
1.1297-0 Introductory text revised; section amended.................4556
    (g)(12) entry correctly amended................................13648
1.1297-1 Added......................................................4557
    (d)(1)(v)(C)(1) correctly amended; (f)(8) correctly revised....13648
1.1297-2 Added......................................................4557
    (b)(3)(i), (c)(4)(iii)(B), (e)(3)(i)(B)(1), and 
(g)(4)(iv)(A)(2)(iii) correctly amended............................13648
1.1297-4 Added......................................................4571
    (d)(6) correctly revised; (f)(5) correctly amended.............13648
1.1297-5 Added......................................................4571
1.1297-6 Added......................................................4571
1.1298-0 Introductory text revised; section amended.................4576
1.1298-2 Added......................................................4576
    (c)(3), (f)(1)(i)(B), and (2)(ii) correctly amended............13648
1.1298-4 Added......................................................4578
    (f) correctly amended..........................................13648
1.1382-3 (c)(2) revised; (e) added..................................5592
1.1388-1 (f) and (g) added..........................................5593
1.1400Z2(d)-1 (a)(3) and (d)(3)(vi)(D) correctly revised...........42716

                                  2022

   (Regulations published from January 1, 2022, through April 1, 2022)

26 CFR
                                                                   87 FR
                                                                    Page
Chapter I
1 Authority citation amended.........................................175
1.1001-6 Added.......................................................176
1.1271-0 Amended.....................................................182
1.1275-2 (m) added...................................................182


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